Schools of Jurisprudence

The schools of jurisprudence are various theoretical approaches to the study of law that aim to understand its nature, purpose and function in society. These approaches differ in their fundamental assumptions about the law, the role of the state, the relationship between law and morality, law and society and the source of legal authority. 

There are five schools of jurisprudence: analytical, positivism, historical, sociological and realist.

Analytical School of Jurisprudence

The Analytical School of Jurisprudence focuses on the present form of law. This school is referred to by various names, such as the Austinian School, named after John Austin who established this methodology. It is also known as the Imperative School, as it considers law as the direction or command of the sovereign and the Positivist School, as its proponents are only concerned with law as it exists presently and not with its past or future. 

The term “positivism” was coined by August Comte. John Austin was responsible for developing the theory of positive law, which was initially founded by Bentham.

One of the primary functions of the Analytical School is to analyse or decompose the law into its irreducible elements.

John Austin

John Austin, known as the father of English Jurisprudence, defined law as “a command of the sovereign backed by a sanction.” According to him, the law is the direction of the politically powerful authority backed by a sanction, which means that the Law-Maker has the authority to make laws and it supersedes judgments by judges or precedents. He also distinguished law from morality and divided law into two parts: divine law and human law.

Types of Laws Recognised by Austin:

Austin recognised three types of laws: declaratory or explanatory laws, laws of repeal and laws of imperfect obligation.

Merits

Austin’s definition of law is simple and clear, which lays down exact boundaries within which jurisprudence has to work. His positivist approach further laid down the foundation of English jurisprudence. He stated an important universal truth that law is created and enforced by the State.

Demerits

However, his definition of law overlooks customs, which regulated the conduct of the people in early times. Austin ignores the permissive character of the law and there is no place for judge-made law. He does not include conventions of the Constitution in his definition of law, although they are the subject matter of a study in jurisprudence. 

Austin also does not treat international law as a law because it lacks sanction. The rules set by private persons in pursuance of legal rights are included in “positive law,” which is an undue extension because their nature is vague and indefinite. Austin overemphasises the command aspect of the law, which cannot be applied to modern democratic countries.

Additionally, Austin’s definition of law does not cover international law and ignores social factors of law and psychological factors that secure its obedience. It also ignores the interrelationship between law and morality.

Bentham

Bentham, a prominent English philosopher, defined law as a collection of signs indicating the will of the sovereign in a state regarding the conduct to be followed by a particular person or group of people subject to the sovereign’s power. He also supported the concept of laissez-faire, which advocates for minimal State intervention in individuals’ economic activities.

Principle of Utilitarianism

Bentham proposed the principle of utilitarianism, which states that legislation’s appropriate aim is to promote the greatest amount of utility. He defined utility as the capacity of a thing to prevent evil or promote good. Bentham argued that the consequences of an action were either pleasure or pain.

Merits

• Bentham’s legal reforms thinking and enthusiasm ushered in a new era of legal reforms in England. He contributed new ideas on law-making and legal research. 
• His definition of law and analysis of legal terms inspired many jurists, who improved upon it and laid the groundwork for new schools. 
• Bentham also provided solutions to issues regarding the nature of positive law.

Demerits

• Bentham’s theory has some shortcomings, according to Friedmann. 
• Firstly, in his attempt to merge materialism with idealism, Bentham underestimated the importance of individual discretion and flexibility in law application, overestimating the power of the legislator. 
• Secondly, the theory does not balance individual interests with those of the community.
• Additionally, the theory is too abstract and fails to account for the complexities of human nature. 
• Furthermore, the theory has no practical application and using pain and pleasure as the sole test for judging law is inadequate.

Sociological School of Jurisprudence

The Sociological School of Jurisprudence emphasises the relationship between law and society, arguing that law is a social phenomenon with a significant impact on society. This school maintains that every problem and change that occurs in society should be viewed from a legal perspective.

Law as a Social Phenomenon

The Sociological School of Jurisprudence posits that law is a social scenery and it directly or indirectly relates to society. This school’s main focus is to balance the welfare of the state and the individual and it believes that the present-day socio-economic problems cannot be solved by existing laws.

Logic-Based Approach

This school’s approach is based on logic and rationality, rather than metaphysical entities or divinities.

Roscoe Pound

Roscoe Pound is known for his functional approach to law, which emphasises the practical application of law and its role in creating a better society. According to Pound, the main objective of law should be to satisfy the maximum number of wants with the minimum amount of friction. He also developed the theory of social engineering, which seeks to balance competing interests in society by protecting various interests through the law.

Classification of Interests

Pound’s theory of social engineering classifies interests into three categories: private, public and social. Private interests include physical integrity, reputation, freedom from violation and freedom of conscience. Interest in domestic relations involves marriage, parents and children and maintenance. Interests in substance involve inheritance, occupational freedom and property. 

Public interests include the preservation of the state, administration of trusts, charitable endowments, territorial waters and the natural environment. Social interests are those that are thought of in terms of social life and are generalised as claims of social groups.

Merits

• The theory has focused on the practical implications of the law and the role of jurists in building a welfare state.
• It considers the working of law rather than its abstract concepts.
• It regards law as a social institution that can be improved by human effort and to discover and effect such improvement.
• It lays stress on the social ends of law rather than sanctions.
• This theory suggests that legal precepts be used as guides to socially desirable results.
• His idea of functional law led to the creation of the functional school.
• His theories gave the most influential exposition of the American sociological viewpoint.

Demerits

• Classification of interests is not useful because social interests always change with society and putting them into a specific order will cause them to lose their character and importance.
• The term “social engineering” is used to indicate the problem that law faces, the objectives that have to be fulfilled and the methods which it will adopt for the purpose of interest.
• There is no ideal scale of values with reference to interest.
• The word “engineering” does not provide a balance between social needs and interests, but only recognises or approves it.
• The theory ignores the fact that law evolves and develops in society according to social needs and wants.
• The dynamic feature of the law is undermined in this theory.
• The conflict between social and individual interests is not considered by him.
• Professor Allen criticised him for focusing on wants and desires to fulfil material welfare, which might be harmful to personal freedom.

Dugit’s Theory

Dugit, a sociologist, proposed a theory of social solidarity that emphasises the importance of interdependence and mutual assistance within a society. According to him, there are two types of needs in society: common needs, which are fulfilled by mutual assistance and adverse needs, which are fulfilled by the exchange of services. Social solidarity is necessary to fulfill these needs and it requires a division of labour to meet all the requirements of the society.

Merits

• Dugit’s theory advocates for peace and solidarity in society. 
• He also challenges the concept of state sovereignty by comparing the state to any other organisation. 
• Dugit argues that the functions of individuals in society depend on each other and the aim of the law is to safeguard interdependence and fulfil all necessities. He stresses that the end result of all human activities and organisations should be to ensure social solidarity and the formation of law is crucial for community life. 
• Additionally, his theory minimises the role of the state and the legislator, promoting interdependence among individuals in society.

Demerits

• Dugit’s theory has some drawbacks. 
• He believes that the state’s duty is to ensure social solidarity and is against state sovereignty. 
• He sees no difference between public and private law, which may lead to the elevation of state power above the rest of society. 
• The concept of social solidarity is vague and can lead to judicial despotism, as judges will decide whether an act or rule is furthering social solidarity. 
• His theory confuses natural law theories as a law that does not promote social solidarity is not considered law. 
• Dugit’s theory does not perform well due to the minimum interference of the state, as social problems of modern communities can be solved better by state activity. 
• Moreover, his use of “is” instead of “ought” confuses the definition of law with natural law theories and his theories are inconsistent, with contradictory claims about the structure and role of the state.

Historical School of Jurisprudence

The historical school of jurists, which was founded by Friedrich Karl von Savigny (1779-1861), is a school of thought that describes the origin of law. According to this school, the law was found, not made. The historical school believes that law is made by people in response to their changing needs and that it is an outcome of the development of society. The law originates from the conventions, customs, religious principles and economic needs of the people. The basic source of the historical school is custom.

Customs are defined as traditional and widely accepted ways of behaving or doing something that is specific to a particular society, place or time. In the historical school, customs are considered superior to legislation. The emergence of this school was due to its opposition to the ideology of the analytical school of jurisprudence, as well as being a reaction to the natural school of law.

Friedrich Carl Van Savigny 

Friedrich Carl Van Savigny, a prominent legal scholar from the 19th century, believed that law is a matter of unconscious and organic growth. His theory emphasised the influence of culture and the character of the people on the evolution of law. Savigny’s theory also traced the course of the evolution of law in various societies.

Main Points of Savigny’s Theory

• Law is found, not made. It is a matter of unconscious and organic growth. Law is not universal in its nature and varies with people and age.
• Custom precedes legislation and is superior to it. The law should always conform to the popular consciousness.
• As laws grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. Lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and therefore, the lawyers or the jurists are more important than the legislators.

Merits

• Savigny’s theory emphasised the influence of culture and the character of the people on the evolution of law.
• The theory laid the seeds for the development of sociological and evolutionary jurisprudence.

Demerits

• Savigny’s theory is inconsistent as he argued that the origin of law is in the popular consciousness, but some of the principles of Roman law were of universal application.
• While advocating for the national character of law, he entirely rejected the study of German law and took inspiration from Roman law.
• Savigny claimed that popular consciousness is the main source of law, which is not always true as sometimes an alien legal system is successfully transplanted in another country or a single personality greatly influences a legal system that is not based on popular consciousness.
• Customs are not always based on popular consciousness and many customs and practices have been declared illegal. Charles Allens criticised him for emphasising the idea of law made by customs as he was of the view that customs are not based on the consciousness of people but on the powerful ruling class.
• Savigny’s theory ignored the judge-made law, although judges have played an important and creative role in making law.
• His theory did not explain many things that developed in certain powerful communities, such as slavery and untouchability in India.
• Despite its limitations, Savigny’s theory remains significant in the development of legal thought and continues to influence the study of law.

George Friedrich Puchta

George Friedrich Puchta was a student of Savigny and a significant jurist whose ideas were more logical and improved. He used the term “right” instead of “law” and believed that men always lived in unity, but people are different in their behaviour and unequal, which gave rise to the concept of law. 

The state comes into existence as a result, but neither the people nor the state alone is the source of law. Instead, all laws come into existence through Volksgeist, the spirit of the people. Popular consciousness unites people into one community, similar to a common language or religion. According to Puchta, customary law is the best expression of the national spirit or Volksgeist, making custom superior to legislation.

Merits

• Puchta’s ideas were more logical and improved compared to Savigny’s.
• He distinguished between the general will and individual will, which helped explain conflicts.
• His division and explanation of conflicts between the general will and the individual will make the state intervention theory more logical.
• He presented a two-fold aspect of human will and the origin of a state, which was absent in Savigny’s theory, making it rigid.

Demerits

• Puchta ignored the historical aspects of legal development.
• His ideas were initially rejected due to ambiguity, which he later corrected.

Philosophical School of Jurisprudence

The Philosophical School, also known as the Ethical or Natural School, posits that legal philosophy should be based on ethical values in order to encourage people to live uprightly. The purpose of law, according to this school, is to maintain social harmony, preserve law and order in society and justify legal restrictions only if they promote individual freedom.

The Philosophical or Moral School focuses primarily on the connection between law and the specific objectives that the law seeks to achieve. It seeks to explore the rationale behind the establishment of a particular law.

This school upholds the principles of logic and reason.

Prominent figures in this school include Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831), who view the law as the product of human reason, aimed at enhancing and glorifying human identity.

Grotius

Grotius is widely regarded as the founder of international law and he believed that a system of natural law could be derived from the social nature of man. According to Grotius, natural law is the dictate of right reason, which indicates whether an act is in conformity with rational nature and possesses a quality of moral baseness or moral necessity.

Merits

• Grotius emphasised the importance of morals in describing righteous conduct in society and built a system of natural law that should command universal respect by its inherent moral worth. 
• He also stressed the significance of reasons and the origin of law based on morals.
• According to Grotius, the agreement of mankind concerning certain rules of conduct is an indication that those rules originated for the right reason.

Demerits

• Grotius’ theory was based on morality and there is a difference between ethics and morality. Ethics refers to the behavioural patterns of a person, whereas morality refers to the values imbibed in them. 
• Additionally, there are other factors such as social, economic and political patterns of the society that are crucial in the formation of law. Legislation, customs, precedents, etc., are also significant sources of law. 
• Furthermore, Grotius believed that natural law deserved universal command, which is not possible in modern times since laws are formed by considering the state, people and nature and making laws according to the needs of society. 
• Grotius’ definition is dependent on logic/reason, which varies from person to person and hence there wouldn’t be uniformity of law. 
• The same goes for moral baseness and necessity since something that may feel morally correct to one person may not to another and vice versa.

Immanuel Kant

Immanuel Kant, a famous philosopher, described the law as the set of conditions under which personal desires can be reconciled with the desires of others according to a general law of freedom. He emphasised the importance of legal duties and legal rights, as well as the distinction between natural and acquired rights. He believed that the state’s primary function is to protect and guard the law, with the ultimate aim of establishing a universal world state.

Kant’s View on Ethics and Law

Kant differentiated between ethics and law, arguing that ethics pertains to spontaneous acts of individuals while law pertains to acts that individuals are compelled to perform by society and the state. Ethics is concerned with inner life and consciousness, while law regulates external conduct. 

Kant also stressed that legislation is only effective if it represents the united will of the people. He believed that justice is a relative concept, depending on the conditions, place and social values in which an action takes place. Kant believed that laws must be metaphysical and derived from reason in order to be just.

Merits

• Recognised the natural right to freedom of an individual in the presence of others’ freedom under general law
• Aimed to establish a universal world state
• Emphasised the role of the state in safeguarding and protecting the law
• Differentiated between ethics and laws and highlighted the importance of the united will of people in legislation.

Demerits

• Focused on what law ought to be and disregarded the past and present of the law
• Denied the significance of natural law in the formation of laws
• Theoretical differences between ethics and laws with little practical application
• Insufficient consideration of other sources of law, such as customs.

Realist School of Jurisprudence

The Realist School is a sociological approach that focuses on decisions and evaluations of law. It challenges traditional legal values and concepts by examining what courts and common people are actually doing. This movement emphasises the importance of the judicial organisation in the application of the law. The realist school believes that law is real and co-relates law with reality. 

There are two types of realist schools: the American Realist and the Scandinavian Realist. The former learned from their own experiences and also observed judgments, while the latter believed only in their own experiences.

John Chipman Grey

John Chipman Grey considered the father of American Realism, believed that the Law of the State or any organised body is composed of the rules that the courts lay down for the determination of legal rights and duties. He emphasised that codified laws are immaterial unless they are applied by a judge and that law is basically the judgment that the court passes.

Merits

Merits of Grey’s theory include its relatability to real-life situations, a chance for own interpretation by people and a focus on “what law is” rather than “what law ought to be.” He also observes similar cases in the past.

Demerits

Grey’s theory has some demerits. He does not take into account the statute law, puts excessive faith in judges and does not consider that the judgment may include the judge’s personal bias. Additionally, his definition is not concerned with the nature of law, but rather its purpose and ends.

 Jerome Frank

Jerome Frank is a prominent philosopher of the realist school. In his work, he compared the relationship between the certainties of law in men to a father-son relationship, where a man gets protection from the law, just as a son gets protection from his father.

Merits 

Frank’s view brings the following merits:

• He emphasises that lawyers and judges should not rely on legal certainty in the name of precedents or codification.
• He highlights the constructive work that lawyers and judges should do.
• He emphasises the importance of lawmaking by evaluating the facts of each case under changed social circumstances.
• He advocates maintaining balance and developing the law in parallel with the advancement of society.

Demerits 

However, Frank’s approach also has some demerits, such as:

• Critics have found his approach not useful in terms of the law.
• Some scholars criticised him for using the Freudian approach to the psychological development of a child in his theory, calling it the Freudian approach of jurisprudence.
• He exaggerated the human factor in judicial decisions and focused only on the roles of lawyers and judges.
• The realist approach was based on the American system of the judiciary, making it not universally applicable.

Conclusion

The five schools of jurisprudence are as follows: natural law (analytical), legal positivism, historical, sociological and realist. These schools of thought provide a framework for understanding the nature of law, the role of law in society and the principles that underlie legal systems around the world. Each school has its own unique perspective and approach to the study of law and each has contributed to the development of modern legal theory in its own way.