school of jurisprudenceschool of jurisprudence

Different approaches to the treatment of jurisprudence are represented by its various schools:

  • Analytical (dogmatic)
  • Historical and ethical (legal exposition)

Analytical / Imperative School of Jurisprudence

The analytical school is ‘positive’ in its approaches to the legal problems in the society. It concentrates on things as they are not as they ought to be. The main concern of the positivists is ‘law that is actually found’, positum, and not the ideal law. The most important legal sources are Legislation, Judicial precedents and Customary Law.

       This school, dominant in England lays down the essential elements that go to make up all the fabric of law e.g., State Sovereignty and the administration of justice. The motto of analytical school is ubi civitas ibi lex i.e. where there is state, there will not be anarchy; State is a necessary evil. The main proponent of this school are:

  1. Bentham
  2. Austin
  3. Hart
  4. Kelson

Bentham’s Concepts of law

Bentham (1748-1832), the founder of Positivism, should be considered the “Father of analytical Positivism”, and not Austin as it is commonly believed (In fact, Austin owes much to Bentham). He was a champion of codified law (legislation). Bentham’s work was intended to provide the indispensable introduction of a civil code.

Bentham distinguished Expositorial Jurisprudence from Censorial Jurisprudence.

Expositorial jurisprudence: what the law is.

Censorial Jurisprudence: what the law ought to be.

His idea of law is imperative one i.e. “law is assemblage of signs, declarations of volition conceived or adopted by sovereign in a State”.

While supporting the economic principle of Laissez faire, he propounded the principle of Utilitarianism.

The proper end of every law is the promotion of the greatest happiness of the greatest number.

Bentham defined ‘utility’ as the property or tendency of a thing to prevent some evil (pain) or to procure some good (pleasure).

According to him, the function of law must be to meet this end i.e. to provide subsistence, to produce abundance, to favour equality, and to maintain security.

Bentham’s theory of Hedonism and theory of pain and pleasure has been criticised on the ground that pleasure and pain alone can not be the final test of the adequacy of law.

Austinian Concept of Law

John Austin (1790-1859) was a lecturer in London University. He applied analytical method – ‘Law should be carefully studied and analysed and the principle underlying therein should be found out’ – and confined his field of study only to the Positive Law – Jus positivism (‘Law, simply and strictly so called’: ‘Law set by political superiors to political inferiors’)

The school founded by him is called by various names- Analytical, positivism, analytical positivism.

Austin is considered as the “Father of English Jurisprudence”.

His lectures were published under the title “The Province of Jurisprudence Determined”.

Austin defined law as ‘a rule laid down for the guidance of an intelligent being by the intelligent being having power over him’.

According to Austin, so called ‘proper law’ includes: Law of God, Human Laws and Positive laws. The law ‘improperly’ so-called includes: Laws by analogy and Laws by metaphor.

According to him, “positive morality” consists of: Law not set by men (as political superior) or in pursuance of a legal right, and, laws by analogy as laws of fashion. The improper laws lacked sanction of the State.

Every law, properly so called, must have three elements of command, sanction and sovereign.

According to him, “law is the command of a sovereign“, requiring his subjects to do or forbear from doing certain acts There is an implied threat of a sanction if the command is not obeyed.

A ‘command‘ is an expression of a wish by a determinate person, or body of persons, that another person shall do or forbear from doing some act subject to an evil in the event of disobedience i.e. ‘sanction‘. So, every law is a command, imposing a duty, enforced by a sanction.

According to him, a command may be particular (addressed to one person or group of persons) or general (addressed to the community at large and inform classes of acts and forbearances; they are also ‘continuing commands’)

A Particular command is effective when the commanded person or group obeys; a General command is effective when the bulk of a political society habitually obeys it.

Austin’s notion of sovereign is ‘if a determinate human superior not in a habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is ‘sovereign’ in that society’. The basis of sovereignty is, thus, the fact of obedience. The sovereign’s power is unlimited and indivisible (no division of authority). The sovereign is not bound by any legal limitation or by his own laws.

Austin’s definition of law as the “command of the sovereign” suggests that only the legal systems of the civilized societies can become the proper subject-matter of jurisprudence because it is possible only in such societies that the sovereign can enforce his commands with an effective machinery of administration. Austin’s definition ignores customs. Austin, however, accepts that there are three kinds of law which, though not commands, may be included within the purview of jurisprudence by way of exception, viz. Declaratory or explanatory laws, Laws of repeal, and, Laws of imperfect obligation (no sanctions attached). According to him, Constitutional law derives its force from the public opinion regarding its expediency and morality.

Austin’s theory is criticized as the sanction is not the only means to induce obedience. Austin’s insistence on sanctions as a mark of law conceals and distorts the real character and function of law in a community. He treats law as artificial and ignores its character of spontaneous growth. Law is obeyed because of its acceptance by the community. In modern times, law is nothing but the general will of the people. Further, customs and conventions of the Constitution, though not enforceable by law, regulate the conduct of the people and the State. Still further, judicial decisions (i.e. precedents) become binding laws, while no body has commanded these.

According to Justice Holmes, Austin’s distinction between positive law and positive morality seeks to exclude the considerations of goodness or badness in the realm of law. In Austin’s positive law, there is no place for ideal or justness in law, for he observed: “Existence of law is one thing, its merit and demerit another…..A law which actually exists, is a law, though we happen to dislike it or though it may vary from the text by which we regulate our approbation or disapprobation.”

Austin’s theory ignores laws which are of a permissive character and confer privileges (e.g. the Bonus Act, Law of Wills). Bryce said: “Austin’s contribution to juristic science are so scanty and so much entangled in error that his book ought no longer to find a place among those prescribed for students.”

Duguit asserted that the notion of command is inapplicable to modern social/welfare legislations, which do not command people but confer benefits, and which binds the State itself rather than the individual Law do not always commands, but confers privileges also e.g. right to make a will.

Thus, Austin’s concept of law is clearly inapplicable in modern democratic welfare State. For instance, in India, it is very difficult to locate a single determinate sovereign who might be regarded as possessing unlimited and absolute power to make law. Austin’s theory could be applied to the British Parliament which is supreme (there is no division of power in England into different organs of State i.e. legislature executive and judiciary)

However, Austin’s notion that sovereignty is indivisible is falsified by federal Constitutions e.g. India, USA, etc. In a federation, legislative power is divided between the Union and the member States.

Hart said about Austin “But the demonstration of precisely where and why he is wrong has proved to be constant source of illumination for his errors are often the mis-statement of truths of central importance for the understanding of law and society”. According to him, the Austinian formula does designate one necessary condition i.e. where the laws impose obligations or duties, these should be generally obeyed. But though essential, this accounts only for the end product of the legal system. The cumulative evidence against Austin should not, however obscure the fact that law does consist of prescriptions of conduct which are usually phrased in imperative form.

Olivecrona acknowledged Austin as the pioneer of the modern positivist approach to law. Allen said: “For a systematic exposition of the methods of English jurisprudence we would’ve to turn to Austin”. Austin’s theory was later improved upon by Holland, Salmond and Gray.

Holland defined law as “rules of external human action enforced by a political sovereign”.

Gray said “If Austin went too far in considering the law as always proceeding from the State, he conferred a great benefit on jurisprudence by bringing out clearly that the law is at the mercy of the State”.

 Dicey draws a distinction between the legal sovereign and political sovereign.

Hart’s Concept of Law

Professor Hart (1907-) may be regarded as the leading contemporary representative of British positivism.

He wrote an influential book “The Concept of Law”, criticizing Austin’s theory.

According to Hart, “Law consists of rules which are of broad application and non-optional character, but which are at the same time amenable to formalization, legislation and adjudication”. He said that law is a system of social rules (rules sprung from social pressure) which acquire the character of legal rules. Law is a body of “publicly ascertainable rules”. Law, according to Hart, is equivalent to a legal system.

A ‘legal rule’ can be defined as one which prescribes a code of conduct, which is done with the feeling that such conduct is obligatory. Law prescribes, not a command, but a standard of conduct. This standard is adhered to, not only because there is a sense of obligation to adhere to it, but also because there is an expectation that others have same obligation to adhere to it. Therefore, even a person who cannot be compelled to obey the law is still reckoned as having an obligation to obey. Thus, law is concerned with obligation rather than coercion. An obligation is similar to a ‘duty‘.

The idea of obligation, according to Hart, means that a rule is accepted by the people (i.e. a rule is internalized) and not (habitually) obeyed (as conceived by Austin). There is a difference between internal and external aspects of rules; the former implies ‘Having an obligation’ (no compulsion involved), while the latter implies ‘Being obliged’ (under a compulsion). According to Hart, the predictive theory of Austin excluded internal aspects of rules and dealt only with external aspects of rules.

According to Hart, there are two types of rules. Primary rule lays down standards of behaviour or impose duties (viz. international law) while the secondary rule are those by which the primary rules may be ascertained, introduced, eliminated or varied. The secondary rules are power-conferring rules public or private (e.g. Statutes, Constitution). From these are derived the ‘rules of recognition‘ which provide authoritative criteria for identifying primary rules of obligation. The ‘Ultimate rule of recognition’ is the ultimate criterion of validity of a legal order.

The union of the primary and secondary rules constitutes the core of a legal system. A society governed by primary rules only (viz. a simple primitive society) is static, uncertain and inefficient. The legal order must be an effective legal order i.e. people generally must obey primary rules, and the officials must observe secondary rules. These two conditions are necessary and sufficient for the existence of a legal system. Hart views “laws as a one-way projection of authority, from the officials down and constructs a theory of law which gives the central role to official behaviour“.

According to Hart, some of the “puzzles” connected with the idea of legal validity are said to concern the relation between the validity and efficacy of law. A rule is said to be ‘valid’ when it satisfies all the criteria provided by the rule of recognition. A rule is said to be ‘effective when it is being obeyed by the people. An Ultimate rule of recognition need not be valid, but it should not be disregarded i.e. it must be efficacious (officials must obey it).

Friedmann said: “Hart’s theory bridges the age-old conflict between the theories of law (Savigny, Ehrlich) emphasizing recognition and social obedience as the essential characteristics of a legal norm, and those (Austin, Kelsen) that emphasize law as a coercive order having elements of authority, command and sanction”. Hart’s approach is important for its emphasis on the socially constructive function of law. However, union of primary and secondary rules cannot explain many aspects of law.

Hart’s concept of law has been vehemently criticized by some jurists notably, Ronald Dworkin and Lon Fuller Dworkin drew a distinction between rules and principles and remarked that a legal system cannot be conceived merely as an aggregate of rules but it has to be based on certain solid principles and policies. He observed “A principle is standard that is to be observed because it is a requirement of justice or fairness or some other dimension of morality”. For example, no one can take advantage of his own wrong is a well-established principle of law Fuller believed that legal system being an instrument to regulate human conduct must concern itself with both laws “as it is” and “as it ought to be”. Thus, law cannot be completely divorced from the concept of morality.

Kelsen’s Concept of Law

Hans Kelsen (1881-1973) belonging to ‘Vienna School of legal thought, proposed a “pure theory of law” i.e. a theory which is free from social historical, political, psychological, etc., influences (thus, excluding everything which is strictly not law) and is logically self-supporting. The law is a normative (‘law as a coercive order) and not a natural science, there are sanctions attached to the law itself The test of lawness is to be found within the system of legal norms itself. He defined law as ‘an order of human behaviour

According to Kelsen, laws are ought propositions i.e. ‘norms’. ‘If X happens, then Y ought to happen’. Thus, if a person commits theft, he ought to be punished Law does not attempt to describe what actually occurs (‘is’) but only prescribe certain rules Norm is a legal meaning attached to an act of will. It is the meaning of an act by which certain behaviour is commanded, permitted or authorized.

A norm is valid only because it has been derived from or is ordained by another (superior) norm. This presupposes a ‘hierarchy of norms’, each norm being valid on the presupposed validity of some other norm. Further, there are ‘dependent’ norms or facilitative norms which do not coerce people (e.g. right to make a will, powers of President, judges, use of force in self-defence) The ‘independent‘ norms are coercive norms. The dependent norms are dependent for their validity on the independent norms (viz Sec 299 of IPC derives its validity from Sec 302). Thus, law does not have exclusively a commanding or imperative character.

The law is a system of behavioural norms which can be traced back to some grundnorm or basic norm from which they derive their existence. The grundnorm must be efficacious i.e. people must believe in it, otherwise there will be a revolution. In every legal system, grundnorm of some kind there will always be, whether in the form of a constitution or the will of a dictator. Where there is a written Constitution (India, USA) the grundnorm will be that the Constitution ought to be obeyed Where there is no written Constitution (UK) one must look to social behaviour for the grundnorm. Under international law, the grundnorm is the principle ‘pacta sunt servanda’ (Treaty obligations are binding on parties)

While, grundnorm accounts for validity of norms emanating from it, one cannot account for its own validity by pointing to other norm. Its validity cannot be objectively tested, instead, it has got to be presumed or pre- supposed (he, however, considers grundnorm as a fiction rather than a hypothesis) It looks for its own validity in factors outside law However, it imparts validity so long as legal order remains by and large effective It should secure for itself a minimum of effectiveness and when it ceases to derive minimum of support of people it is replaced by some other grundnorm.

Kelsen’s theory is criticized, as according to Kelsen a legal order is valid when it is effective, it does not matter whether it is an illegitimate rule brought about by unconstitutional means. This means law is a system of external compulsion i.e., people are forced to comply with laws. Validity of a law does not necessarily derive from an effective grundnorm Kelsen does not give any criterion by which the minimum effectiveness of grundnorm is to be measured. The grundnorm simply creates or validates a legal order, but do not provide the content to a legal order It is for the courts to determine the criterion of grundnorm, and to decide the validity and efficacy of a legal order (Madzimbamuto v Laedner-Burke; State v Dasso; Asma Jilani v Govt of Punjab). The effectiveness of grundnorm depends on sociological factors.

Julius Stone criticized Kelsen on the latter’s assertion that all the norms excepting the grundnorm are pure He asserted that other norms which derive their authority from grundnorm cannot remain pure when the grundnorm itself is a combination of various social and political factors He remarked, “We are invited to forget the illegitimacy of the ancestor in admiration of the pure blood of the progeny”.

No theory of justice can form part of pure theory of law. However, Kelsen presented a formal, scientific and dynamic picture of the legal structure He has considerably influenced the modern legal thought. The great jurists like Stone and Friedmann have strongly defended Kelsen’s theory.

The coercive elements dominate the theories of Austin, Kelsen and Hart Thus, if certain formal criteria are satisfied, any social norm is law Irrespective of its intrinsic worth or quality. Essence of law lies not in its form but its function. All three excludes morality from law, though they admit that morals play an important role in the formation of law, but once a law is made morals play no more role.

Kelsen’s pure theory of law owes to Austin’s theory. However, the two differ in many respects:

  1. For Austin law is a command of the sovereign. For Kelsen. law is not the command of a personal sovereign but a hypothetical judgement, which visits with a sanction for the non-observance of the conduct prescribed. Kelsen denies also the existence of State as an entity distinct from law.
  2. In the Austinian sense, a sanction has a moral or psychological basis; the motivation by fear makes people to submit to law. Kelsen rejected the idea of command, because it introduces a psychological element into a theory of law which should, in his view, be ‘pure’. In the Kelsenian sense, coercive act means forcible deprivation of liberty. There is no idea of fear involved, because the norms prescribe.
  3. Although sanction is an essential element of his law, validity of a rule has nothing to do with its sanction. In the Austinian sense, the sanction was something outside a law imparting validity to it. While, according to Kelsen, a sanction is in-built in every legal norm.
  4. Austin’s theory denies to ‘custom’ the character of law as it has not been created by the sovereign. Kelsen, however, is able to accommodate custom within his concept of law viz. popular practice may generate legal norms.
  5. Austin didn’t regarded international law as a positive law. Kelsen, on the other hand, accepted the primacy of international law over national law.

Historical School

Law touches actual life so intimately that it is only natural to view operation of laws in their social setting. The “functional approach” to law (Historical and Sociological Schools) emphasises actual social circumstances as give rise to law and legal institutions, and is concerned with man not as an individual but with man in association.

The historical school emerged as a reaction to legal theories propounded by analytical positivists (as they failed to meet the needs of the people) and the natural law thinkers. The motto of this school is Ubi societas ibi lex i.e. where there is society, there is law. Sir Fredrik Pollock aptly remarked that historical method is nothing but the doctrine of evolution applied to human institutions and societies.

The historical school emphasise that the historical factors influenced the origin, formation and development of laws. Law is found, not made Laws are not of universal application, as traditions and customs determine the law Laws are rules consisting partly of social habits and partly of experience, Germany was the cradle of this school and Savigny (1779- 1861) its main exponent. The historical school derived its inspiration from the study of Roman law.

Montesquieu- the first jurist of this school in his Espirit des Lois (Spirit of the Laws) said that all laws should have the basis of historical observations. Maine described Montesquieu as the first jurist who proceeded on historical method. Montesquieu emphasized that, “Laws of a particular nation should be determined by its national characteristics and must bear relation to the climate of each country.”

According to Hugo, law is the result of the habits and ways of the people themselves, acquired through necessities, accidents and other processes, Burke considered evolution of law as an organic process and an expression of common beliefs, faiths and practices of the community as a whole.

Puchta, a staunch supporter of Savigny, opined that neither the State nor the people alone are a source of law but law comes into existence as a result of conflict between general and individual will. He laid down the concept of Causa instrumentalis and Causa principalis of law, both stand respectively for people and State. According to him, self-interest causes a conflict between individual will and general will. This brings out the idea of law. Then, State comes into existence. Neither the people (as the natural unit) nor the State (as the organic unit) alone is the source of law

Savigny

According to Savigny, law is not an ‘artificial lifeless mechanical device. His work on Law of Possession (Das Recht des Bestiges) is said to be the starting point of his historical jurisprudence. Savigny’s view was that law is closely connected with the people and it closely contained the germs of future sociological theory. That is why Savigny is called “Darwinian before Darwin and a sociologist before sociologists. Savigny considered the growth of law as a continuous and unbreakable process bound by common cultural traditions and beliefs.

The core of Savigny’s thesis is to be found in his essay ‘On the Vocation’ – Vom Beruf (1814). He said that the nature of any particular system of law was a reflection of the spirit of the people who evolved it Law is a product of the people’s life. Law is the result of the genius of the people. Law has its source in the general or common or popular consciousness (Volksgeist) of the people. As law is a reflection of people’s spirit, it can only be understood by tracing their history.

Law is the natural manifestation of popular life and by no means product of man’s free will. Law, language, customs and government have no separate existence. There is but one force and power in a people and it underlines all these institutions. The law, like language, develops with the life of people. He wrote: “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. Thus, law has a national character.

He said “The law, like language, grows with the growth of social consciousness and organization: the law can only be evolutionary, and not revolutionary.” Because law is a matter of unconscious or organic growth i.e. not made suddenly and deliberately. Any law-making should follow the course of historical development. Reforms should await the result of the historians’ work. The legislators should look before they leap into reform. He, thus, opposed the codification of law.

Savigny was, however, not totally against codification of laws. He opposed the codification of the German law on the French (Napoleonic Code) pattern at that time because Germany was then divided into several smaller States and its law was primitive, immature and lacked uniformity. He considered Roman law as an inevitable tool for the development of unified system of law in Germany.

As law grows into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the 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 lawyer or jurist is more important than the legislator.

The crucial weakness of Savigny’s approach was that he venerated past institutions (traditions, customs, etc.) without regard to their suitability to the present. He said: “Custom is the sign of positive law”. Savigny’s contention was that legislation should conform to existing traditional law or it is doomed. Thus, Savigny’s theory tended to hang traditions like fetters upon the hands of ‘reformative’ enterprise. It discouraged creative activity and legal reform. R. Pound, thus, criticized Savigny for his ‘juristic pessimism He said: “Savigny’s statement was simply to watch the unfolding of laws from popular consciousness with folded hands. Prof. Porkunove pointed out that Savigny’s theory “does not determine the connection between what is national and what is universal.”

Savigny did grasp a valuable truth about the nature of law, but ruined it by overemphasis. Savigny’s Volksgeist helped many nations to pervert it for promoting their own ideologies. Thus, Nazi twisted it by giving a racial colour, the Marxists used it giving economic interpretation of history and Italy used it to justify fascism.

Savigny’s work was, nevertheless, a salutary corrective to the methods of the naturalists. It provided great stimulus to the historical study of laws and legal institutions. The greatest contribution of historical school lay in positing “social pressure” behind law in place of moral authority or sovereign’s will, paving way, thereby, for smooth transition of juridical thought to sociological school.

Savigny’s theory marks the beginning of modern jurisprudence, viz sociological approach to law. Ehrlich devised his theory of interest on the foundation laid by Savigny. Savigny’s approach also gave birth to ‘comparative jurisprudence. Maitland supported Savigny’s approach and pointed out that the course of development of common law in England was determined by socio-political conditions obtaining in England at that time.

Maine

Maine (1822-1888) inaugurated both the comparative and anthropological approaches to the study of law. Historic-Comparative School of jurisprudence belongs to Sir Henry Maine. Unlike Savigny, he favoured legislation and codification. He wrote: ‘Ancient Law’ ‘Village Communities’, ‘History of Institutions, etc. He is labelled as ‘Social Darwinist’ for he envisaged a social order wherein the individual is finally liberated from the feudalistic primitive bondage. He said: “The penal law of ancient communities is not the law of crimes but the law of torts.”

According to him, there are four stages of development of law: (i) Law made by the commands of the ruler, (ii) Crystallization of commands into customary law, (iii) Administration of customs by priests, etc., and, (iv) Codification of law. The societies which do not progress beyond the fourth stage are ‘static’ societies. The societies which go on developing law by new methods are called ‘progressive’, which develop their law by three methods: Legal fiction, Equity, and Legislation. Further, in early societies, both static and progressive, the legal condition of the individual is determined by status i.e. his claims, duties, etc. are determined by law.

The march of progressive societies witness the disintegration of status and the determination of the legal condition of the individual by free negotiation on his part “The movement of progressive societies has hitherto been a movement from Status to Contract

According to Maine, most of the ancient communities are founded on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family. With the march of time the institution of pater familias withered away and now rights and obligations were dependent on individual contracts and free negotiation between persons. The freedom of individual in economic field (leissez faire) struck a blow to the notion of status as the basis of law. Thus, Maine said that ‘movement of progressive societies has hitherto been from status to contract’. The word ‘hitherto’ signifies ‘until then’; thus, he left options open for a change in future time to come (viz. individuals might have to fight for their rights and liberties collectively in groups).

The Maine’s theory of ‘Status to Contract‘ does not have much force in the twentieth century. Vinogradoff asserted that Maine’s expression of status to contract does not hold good in communities following collectivist ideology. He emphasized that law is not a command of the State but it is an expression of the general will of the people.

Sociological School

Sociological jurisprudence arose as a reaction to positivism (‘Law as a set of rules enforced by the State’). According to it, law is not an isolated phenomenon but is a part of the social reality. This school has emerged as a result of synthesis of various juristic thought. The supporters of this school linked law with other social science disciplines and treated it as a synthesis of ‘psychology, philosophy, economics, political science, sociology, etc. The major stages through which sociological school evolved and developed are: Empirical scientific approach to law; Impact of Darwinian evolutionary theory; Impact of psychological theories; Unification stage (unification with other social sciences). This school finally culminated into Realist school of the 20th century.

The “functional” role of law and its effect on society constitutes the basic philosophy underlying this school. R. Pound rightly pointed out, “the sociological jurists look more for the working of law than for its abstract content.” Roscoe Pound can be said to be the father of sociological jurisprudence in America Montesquieu is the forerunner of the sociological method in jurisprudence. Other noted jurists of this school includes: Auguste Compte, Herbert Spencer, Rudolph Von Ihering, Ehrlich, Duguit, Francois Geny.

Auguste Compte: He is regarded as the founding father of science of sociology. He applied scientific methods to the study of socialism which has been termed as ‘scientific positivism. According to him, society, like any other organism, can progress when it is guided by scientific principles. Further, it is the ‘society’ and not the ‘individual which should be the focal point of law (‘Law as a Fact’). The only right which man can possess is the right always to do his duty.

Herbert Spencer: He gave a scientific exposition to the “organic theory of society”. He deduced four sources of law, namely, (i) divine laws having quasi-religious sanctions, (ii) injunctions of the past leaders, (iii) will of the ruler, and (iv) collective opinion of the society. He considered law nothing more than a “hardened custom”. The purpose of law is to resolve the conflicting interests of the individuals in the society.

According to Dr. Allen, the essence of Spencer’s organic theory lay in the inter-dependence of organism in its sociological aspect, which means the mental relation of all members of civilized society and the distribution of a sense of responsibility far wider than can be comprised with the formula ‘sovereign and subject’. It directed attention to the necessity of considering law in relation to other social phenomenon.

Rudolph Von Ihering: He laid the foundation of modern sociological jurisprudence by his insistence on treating law as one of the important factors to control the social organism (Friedmann). For him, ‘Law is a coercion organized in a set form by the State’, ‘Law is the guarantee of the conditions of life of society, assured by the State’s power of constraint. He wrote: ‘The Spirit of Roman Law in the Various Stages of Its Development.

In his work ‘Law as a Means to an End’, he criticized the notion of individual freedom and liberty. According to him, law, though not alone, is an important factor to control the social organism, Law has a coercive character, it has only a relative value, and, it has to be evaluated in the social context.

According to Ihering, “The birth of law, like that of men has been uniformly attended by the violent throes of child birth.” The origin of law is to be found in social struggles. He opined that social interest of the society must gain priority over individual interest. His theory has been called as ‘social utilitarianism’. He considers punishment as a means to a social end. His system combined Austinian positivism with Bentham’s utilitarianism (Friedmann). Ihering’s legal philosophy is known as ‘jurisprudence of interests’. Like Bentham, he defined ‘interest’ in terms of pleasure and pain (i.e. pursuit of pleasure and avoidance of pain).

Ehrlich: His theory of “living law” is that law need not be necessarily created by the State or applied by the courts or have a coercive legal compulsion behind it, but it is created by life of groups living within the society (extra-legal controls). In other words, law arises in society in the form of spontaneous ordering of social relations of marriage, family associations, possession, contracts, etc. His theory of living law came as a vigorous reaction against the analytical positivism and State-made laws.

 In his opinion, “the centre of gravity of legal development in the present time or the past lies neither in juristic science nor in judicial decisions, but in society itself”. He made an exhaustive study of the variety of customs, traditions, etc. of tribes. The central point in Ehrlich’s theory is that the law of a community is to be found in social facts and not in formal sources of law. “Ehrlich’s sociology of law is always on the point of becoming a necessarily sketchy, general sociology (Friedmann). Ehrlich’s theory has been named ‘Megalomaniac jurisprudence’ by Allen.

Duguit: His theory of “social solidarity” was based on the fact that interdependence of man is the essence of society. He developed the concept of ‘Syndicalism’. He said: “Law is rule which men possess not by virtue of any high principle whatever good, interest, or happiness but by virtue and perforce of facts, because they live in society and can live in society.” He established a standard “social solidarity” to which all positive law must conform. It is nothing but natural law in different form. Therefore, it has been rightly observed that Duguit “pushed natural law out through the door and let it come by window.”

Duguit pointed out that law is a rule which men obey not by virtue of any higher principle but because they have to live as members of society. He rejected the traditional notions of rights, State, public and private law, legal personality as fiction and unreal, not based on social reality. His entire thrust was on mutual co-operation and division of labour for the purpose of social cohesions. Thus, law consists of ‘duty’ and not ‘rights’.

According to him, State regulations should be directed towards achieving the ends of social and economic justice for common good. He contended that legislators do not make law but merely give expression to judicial norms formulated by the consciousness of the social group. Thus, he denounced the omnipotence of the State and acknowledged the superior role of judiciary. He also rejected the notion of natural rights of men which made individual hostile to larger interests of the society.

Francois Geny: His sociological approach emphasized ‘free scientific research as a solution to social problems, which is based on (1) autonomy of will, (ii) maintenance of public order and interest, and (iii) proper balancing of conflicting private interests of individuals. He gave primacy to courts; a judge should try to find out the solution freely and scientifically.

Roscoe Pound

Pound’s approach to sociological jurisprudence was different as he attempts to cover social life as a whole unlike the predecessors who considered law as the main subject of study and society merely subsidiary to it. He concentrates more on functional aspect of law need for study of law in relation to and as a part of the whole process of social control. Before Pound, Bentham maintained that the aim of legislation should be to achieve social ends and in order to do this there has to be a balancing of individual interests with communal welfare. R. Pound (1870-1964) wrote: ‘Spirit of the Common Law’, ‘Law and Morals’, ‘Social Control through Law’, ‘The Task of Law”.

He defined law as containing “the rules, principles, conceptions, and standards of conduct and decision as also the precepts and doctrines of professional rules of art.” According to him, “law is not a set of rules but is a method or technique for harmonizing conflicting social interests.” The task of law, in his opinion, is to build as effective a structure of society as possible by satisfying the maximum of wants with the minimum of friction and waste. This will involve adjustment of human relations, ordering of human behaviour, and above all “balancing of competing interests” in the society. To this essential task he gives the name of “social engineering”. The courts, legislators, jurists, etc. must make an effort to maintain a balance between the competing interests in society.

Pound classified interests as: Private, Public and Social interests. ‘Private interests’ include interests of personality (safeguarded by law of crimes, contract, constitutional law, etc.), marital life, property, etc. ‘Public interests’ include interests in the preservation of the State, and, State as a guardian of social interests such as administration of trusts, protection of environment, etc. ‘Social interests’ include interests in the preservation of peace, health, social institutions, general morals, general progress (freedom of trade and commerce, freedom of speech and expression, etc.), and, interests which promote human personality.

In order to evaluate the conflicting interests in due order of priority. Pound suggested “jural postulates” a sort of ideal standards which law should pursue in society. Every society has these basic assumptions upon which its ordering rests. There are five jural postulates of the legal system of a society, viz.-

In civilized society, men must be able to assume that:

  1. Others will commit no intentional aggression upon him.
  2. They may control for their beneficial purposes what they’ve discovered and appropriated to their own use, what they’ve created by their own labour, etc.
  3. Those with whom they deal as a meraber of the society will act in good faith and hence will make good reasonable expectations which their promises create, etc.
  4. Those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others.
  5. Others who maintain things or employ agencies, harmless in sphere of their use but harmful elsewhere, will keep them within their proper bounds.

Thus, the jural postulates provide guidelines for righteous and civilized life, and seek to strike a synthesis between reality and ideal as also power and social accountability of men in the community. Pound confessed that these postulates are not absolute but they have a relative value. They are of a changing nature.

The law, thus, is a means of social control. The aim of social engineering is to build as efficient a structure of society as possible. Thus, for example, if a factory is polluting the environment, and an injunction suit is filed for closing the factory, the court must balance various claims and interests e.g. the claim of the mill owner to do his business, the claims of the workers in the factory to retain their jobs, the claim of local residents to have a clear environment, etc.

In short, Pound’s theory is that the interests are the main subject- matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law to make a ‘valuation of interests’, in other words, ‘to make a selection of socially most valuable objectives and to secure them. This all is nothing more than an experiment. Pound, through his ‘experimental jurisprudence helped to bring home the vital connection between laws, their administration and the life of society.

Pound’s greatest contribution to jurisprudence is his attention on the actual functioning of law in the society. Allen described Pound’s approach as ‘experimental jurisprudence’. His theory is nothing more than an experiment. Justice Cardozo rightly remarked, “Pound attempted to emphasize the need for judicial awareness of the social values and interests. Allen, however, said that, “Pound completely ignored the personal freedoms which are equally important for a happy social living.”

Pound’s metaphor of ‘engineering’ has been criticized as suggesting a system of merely mechanical expedients mechanically administered to social exigencies. Secondly, his thesis presupposes an advanced state of society inhibiting wider application of his conclusions. For example, in a mass society, like India, it is difficult to see how the people would articulate their claims, desires, etc., where majority of people lacks means to articulate and are illiterate. Thus, Pound’s theory cannot be accepted too generally. Lastly, his somewhat sterile preoccupation with arrangement of various interests and too little with the means of giving effect to them robbed his work of having any desired practical impact.

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