Jurisprudence

The word “jurisprudence” has been derived from a Latin word

jurisprudential. Which in its widest sense,mean“knowledge of law”. The
Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge.
Thus, jurisprudence signifies ‘knowledge of law’ and its application. In
this sense it covers the whole body of legal principle in the world.

Jurisprudence, in its limited sense, means elucidation of the general

principles up on which actual rules of law are based. It is concerned with
rules or external conduct which persons are constraint to obey.
Therefore, etymologically jurisprudence is that science which imparts to
us knowledge above “law”. The ‘law’ of course is a term of various
connotations; here we use the term ‘law’ in its abstract sense, that is to
say, not in the sense of concrete statues but in the sense of principles
underlying law. Thus, for example, there are various branches of law
prevalent in a modern State such as contract, torts, crime, property,
trusts, companies, labour relations, insolvency etc. and in jurisprudence
we have to study the basic principles of each of these branches and we
are not concerned with detailed rules of these laws.

In yet another sense, jurisprudence maybe regarded as the philosophy

of law dealing with the nature and function of law. This approach to
jurisprudence is receiving primacy in modern time keeping in view the
rapid social changes taking place all around the world in recent years.
This has eventually given rise to what is now termed as the ‘functional
jurisprudence’. The trust is being on inter-relationship between law and
justice.

Definition of Jurisprudence
= According to Ulpian, “Jurisprudence is the knowledge of things human
and divine, the science of the just and unjust.”

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= According to Prof. Gray- “Jurisprudence is the science of law, the
statement and systematic arrangement of the rules followed by the
courts and the principles involved in those rules.”

Prof. Gray is of the opinion that jurisprudence deals with that kind of law
which consists of rules enforced by courts while administering justice. In
other words, the laws of the jurists deal with man and seek to regulate
external human conduct in the society. It does not concern itself with
the inner beliefs of man imposed in religious laws which derive their
authority from superhuman source which we call as ‘God’. The sanction
for their enforcement is spiritual reward or curse according to man’s
deeds.

= According to Holland- “Jurisprudence is the formal science of positive

law.” It is wrongly applied to actual systems of law, or to current views
of laws, or to suggestions for its amendment, but is the name of a
science. The science is a formal, or analytical, rather than a material one.
It is the science of actual or positive law. The essential ingredients of his
definition of jurisprudence are as under-

i. Formal- According to Holland, “This science is a formal rather than

a material one. It deals more with the form and outer (but fundamental)
aspect, rather than with the matter and contents of law. It concerns
itself with basic ideas and fundamental principles of various systems of
law rather than with laws themselves.’ He further says “Jurisprudence
deals rather with the various relations which are regulated by legal rules
than with the rules themselves which regulate those relations.” Thus, it
deals only with the formal constituents and fundamental conceptions of
law and not with its actual material content and the detailed rules.
Therefore, jurisprudence is not a material science, but formal one.
ii. Science- Jurisprudence is a Science and not an art. A systematic
and formulated knowledge is called science. Science the ideas, principles
and conceptions underlying various systems of law are dealt with in

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jurisprudence from a systematized branch of learning, jurisprudence is a
science.

Nature of jurisprudence:

Jurisprudence in its nature is entirely a different subject from other

social science. The reason for this is that it is not codified but a growing
and dynamic subject having no limitation on itself. Its inquiry system is
of different status from other subjects. Every jurist does not base his
study on the rules made but tries to understand their utility after due
deliberation. Thus, jurisprudence has no limited scope being a growing
subject. There is a difference of opinion about the nature of
jurisprudence. It is called both art and science. But to call it science
would be more proper and useful. The reason for this is that just as in
science we draw conclusion after making a systematic study by
interview new methods. In the same way jurisprudence is concerned
with the fundamental principles of law and systematic study of their
methods.

Scope of jurisprudence-

The scope of jurisprudence has widened considerably over the years. It

is generally believed that the scope of jurisprudence cannot be
circumscribed. Broadly speaking, “jurisprudence includes all concepts of
human order and conduct in state and society. According to justice P.B.
Mukherjee, jurisprudence is both an intellectual and idealistic
abstraction as well as behavioral study of man in society. It’s including
political, social, economic and cultural ideas. It covers that study of man
in relation to state and society”.

Jurisprudence involves certain types of investigation into law, an

investigation of an abstract, general and theoretical nature which seeks
to lay the bare essential principles of law and law systems. Elaborating
the point further, Salmond observed,” In jurisprudence we are not
concerned to derive rules from authority and apply them to problem;
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we are concerned rather on the nature of legal rules, on the underlying
meaning of legal concepts and on the essential features of legal system”.
This makes the distinction between law and jurisprudence amply clear.
Thus, whereas in law we look for the rule relevant to the given situation,
in jurisprudence we ask, what is for a rule to be a legal rule, and what
distinguishes law from morality; etiquette and other related
phenomenon. It, therefore, follows that jurisprudence comprises
philosophy of law and its object is not to discover new rules but to
reflect on the rules already known.

Importance of jurisprudence:

Jurisprudence also has its practical applicability. It seeks to rationalize

the concept of law which enables us to solve the different problems
involving intricacies of law. In other words, it serves to render the
complexities of law more manageable and rationale and in this way this
can help to improve practice in the field of law.

The apart, jurisprudence also has great educational value. The logical
analysis of legal concepts widens the outlook of lawyers and sharpens
their logical technique.

It helps them in shedding aside their rigidity and formalism and trains
them to concentrate on social realities and the functional aspect of law.

It is not the form of law but the social function of law which has
relevance in modern jurisprudence.

Law has to take note of the needs of society and also of the advances in
the related and relevant disciplines such as sociology, economics,
philosophy, psychiatry etc.

Analytical School:

The major premise of analytical school of jurisprudence is to deal with

law as it exists in the present form. It seeks to analyses the first principle

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of law as they actually exit in a given legal system. The exponents of
analytical school of jurisprudence consider that the most important
aspect of law is its relation to the state. They treat law as a command
emanating from the sovereign, namely, the state. This school is
therefore, also called the imperative school. The advocates of this
school are neither concerned with the past of the law nor with the
future of it, but they confine themselves to the study of law as it actually
exits i.e. positus. It is for this reason that this school is also termed as
the positive school of jurisprudence.

Austin’s Analytical positivism

Austin is considered to be the father of English jurisprudence. He

confined his study only to the law and applied analytical method for this
purpose. By positive law, Austin positive meant ‘laws properly so called’
as distinguish from morals and other laws which he described as law
improperly so called which lack force or sanction of the state. Austin
described positive law as the aggregate of rules set by man as politically
superior to men as politically inferior subject. He attributes:

1. Command 2. Sanction 3. Duty and 4. Sovereignty as the four essential

attributes of positive law.

Austin distinguishes positive law from positive morality which is devoid

of any legal sanction. He identifies law with command, duty and
sanction. He distinction between positive law and positive morality
seeks to exclude the consideration of goodness or badness in the realm
of law. In his positive law there is no place for ideal or justness in law.

Imperative theory of law-

According to Austin, Law, in the common use, means and includes many
things which cannot be properly called law. He, therefore, analyses and
gives a clear cut picture of law by presenting a chart of the division of
law as under-
1. Law properly so called

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2. Law improperly so called

Law properly so called may further be divided into two parts-

1. Law of god- law set by God for men.

2. Human laws- Law set by men for men.
Human law may again be divided into two kinds-
a. Positive Law – these are the laws set by political superiors as
such, or by men not acting as political superior but acting in
pursuance of legal rights conferred by political superior. Only
these laws are the proper subject-matter of jurisprudence.
b. Positive morality- Other laws which are not set by political
superior or by men in pursuance of legal rights. This class includes
international law.
Law improperly so called are also divided into two heads-
(i)Laws by Analogy- these are the opinions or sentiments of an
indeterminate body of men, i.g. laws of fashion, honor and
etiquette etc.
(ii)Laws by Metaphor- there are certain other rules which are
called law metaphorically as laws of growth etc.

Austin theory of imperative law- thus, Law in its most comprehensive

and literal sense is “a rule laid down for the guidance of intelligent being
by an intelligent being having power over him.” This excludes the laws of
inanimate objects and the laws of plant or animal growth which are
described by Austin as law ‘improperly so called’. Austin recognizes the
law of God or divine law which he regards as ambiguous and misleading.
Law properly so called is the positive law which according to Austin
means, law as it is rather than law “.

Criticism of Austin’s Theory:

1. Sovereign is not only sourcing of law – Besides sovereign,

customs, usages and religion is also the important source of law.
According to Maine the interdependence of law and sovereignty is not
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 true of oriental communities. Austin’s view that ‘law is the command of
sovereign’ is not supported by historical evolution of law when customs
played a significant role in regulating human conduct.
2. Permissive character of law ignored: Austin’s theory does not
take notice of law which are of a permissive character and confer
privileges e.g. , the bonus act or the law of will etc.
3. No place for judge- made law: Judge –made law has no place in
Austinian conception of law, although the creative function of judiciary
as a law-making agency has been accepted in modern times all over the
world.
4. Treats International law as mere morality: Austin does not treat
international law as ‘law’ because it lacks sanction. Instead, he regards
international law as mere positive morality.
5. Command over-emphasized: Austin’s theory over-emphasis on
‘command’ as on inevitable constitute of law. In modern progressive
democracies law is nothing but an expression of the general will of the
people.
6. Sanction alone is not the means to induce obedience: Austin’s
view that it is sanction alone which induces a person to obey law is not
correct. There are many other considerations such as fear, deterrence,
sympathy, reason etc. which may induce a person to obey law.
7. Conventions Ignored- Conventions of the constitution, which
operate imperatively, though not enforceable by court, shall not be
called law, according to Austin’s definition, although they are law and
are a subject- matter of a study in jurisprudence.
8. It cannot apply to Hindu law etc.- Austin’s definition cannot apply
to Hindu Law, Mohammedan law and Canon Law. These laws came into
existence long before the state began to perform legislative function.

Importance of Austin theory- In spite of the various criticisms leveled

against Austin’s theory. Salmond says that his theory of law contains an
important element of truth in as much as it rightly recognizes the
essential fact that civil law is the product of the state and depends for its
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existence on the physical force of the state exercised through the
agency of judicial tribunals. Austin was first who distinguished between
law and justice. Later on, all the theories have recognized this original
distinction and fundamental unity of law and justice. The credit goes to
Austin for opening an era of new approach to law.

Historical School of Jurisprudence

- The chief supporter of the school are- Savigny, Carter, Puchta, Henary
Maine and G.C. Lee. Under Historical School of jurisprudence we study
the origin, development and systematized change in law and legal
concepts. In this school the study of mutual relation of state and law is
made in Historical perspective. According to the view of historical school
law is found, not made. Law is based on customs and usages. One of the
main exponents of this school is Savigny.

Savigny:

Friedrich Karl von Savigny was born at Frankfurt (Germany) 1779. He

was educated at the university of Marburg and Gottingen and was a
professor of civil in the University of Marburg from 1801 to 1804.
Thereafter, he shifted to the University of Landshut. He was then
appointed as a professor at the newly formed university of Berlin in
1810 and worked there until 1842 when he was appointed as Minister of
justice in purssia. He retired from this post in 1848.

The main propositions of his theory of law as under-

1. Source of law is Volksgeist – Savigny was the opinion that law is a

product of the people’s life. It is a manifestation of its spirit. Law has its
source in the general consciousness (VOLKSGEIST) of the people.
According to savigny, a law made without taking into consideration the
past historical culture and tradition of community is likely to create
more confusion than solving the problem because law is not “artificial

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 lifeless mechanical device.” Thus, the origin of law lies in the popular
sprit of the people which Savigny termed as Volksgeist.
2. Law Develops Like Language and has a National Character-
Savigny pointed out that law has a national character and it develops
like language and binds people into one whole because of their common
faith, beliefs, and convictions. He pointed out that, “Law grows with the
grows of the society and gains its strength from the society itself and
finally it withers away as the nation loses its nationality. Law, language
customs and government have no separate existence from the people
who follow them. Common conviction of the people makes all these as a
single whole.
3. Early development of law is Spontaneous; latter on it is
Developed by jurists- Accordind to Savigny in the earlier stages law
develops spontaneously according to the needs of the community but
after the community reaches a certain level or civilization, the different
kinds of national activities, hitherto developing as a whole, bifurcate inn
different branches to be taken up for further study by specialists such as
jurists, linguists, anthropologists, scientists etc. law has to play a duel
role, namely as a regulator of general national life and as a distinct
discipline for study. The former may be called the political element of
law while the latter as a juristic element but both have a significant role
in the development of law. The history of Roman law furnishes the best
illustration of these processes.
4. Savigny’s view on codification of law : Although Savigny was not
totally against codification of law. He, however, opposed the codification
of the German law on the French pattern at that time because Germany
was then divided into several smaller states and its law was primitive
immature and lacked uniformity. He said that Germany law could be
codified at a large stage when the unification of Germany takes place and
there is one law and one language throughout the country. Since
Volksgeist i.e. common consciousness had not adequately developed at

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 that time, therefore, codification would have marred the evolution and
growth of law.
5. Law is a continuous and unbreakable process: Tracing the
evolution of law from Volksgeist, Savigny considered its growth as a
continuous and unbreakable process bound by common culture
traditions and beliefs. It has its roots in the historical processes which
should constitute the subject of study for the jurists.
6. Admiration for Roman Law :-While emphasizing Volksgeist as the
essence of law, Savigny justified adoption of Roman law in the texture of
German law which was more or less diffused in it. He, therefore, located
Volksgeist in the Romanized German customary law. He considered
Roman law as an inevitable tool for the development of unified system
of law in Germany.

Criticism of Savigny’s Theory:

Savigny’s theory has been criticized on the following grounds-

1. Inconsistency in the theory – Savigny emphasized the national

character of law but at the same time he recommended a method by
which the Roman law could be adopted to modern conditions and
Advocated for the acceptance of Roman law of Germany. On the one
hand, he asserted that the origin of law is in popular consciousness and
on the other hand, argued that some of the principles of roman law
were of universal application. Thus it is a clear cut inconsistency in his
ideas.
2. ‘Volksgeist’ not the Exclusive source of Law- Savigny’s view that
popular consciousness is the source of all law is not true. Sometimes, an
alien legal system is successfully transplanted in another country. There
are many technical legal rules which never existed in nor has any
connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness- savigny’s
view that custom are always based on the popular consciousness also
not acceptable. Many customs such as slavery, bounded labour etc.
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originated to accomplish the selfish interests of those who were in
power. Many customs are adopted because they are being blindly
followed and continued for a long time and not because they are
righteous and have the support of popular consciousness.
4. Savigny Ignored Other Factors That Influence Law- Savigny
overlooked the forces and factors which influence and determine the
growth of law. The creative function of the judge has also been ignored
in saivgny’s theory and the contribution of the jurist has been taken very
lightly. Many rules, in modern time, are the result of a conscious.
5. Many Things Unexplained- legal developments in various
countries show some uniformity to which he paid no heed.
6. Juristic Pessimism- According to Pound, Savigny encouraged
‘juristic pessimism’. According to his theory, legislation must accord with
popular consciousness. Such a view will not find favors in modern times.
No legal system would like to make compromise with abuses only
because the people are accustomed to it.

Savigny’s contribution: - Savigny’s theory of Volkseist interpreted

jurisprudence in terms of people’s will. Thus, it paved way to the
modern sociological approach to law laying greater emphasis on relation
of law with society. Savigny’s theory came as a reaction and revolt
against the 18th century natural law theory and analytical positivism.
Only defect in his theory that he carried the doctrine of ‘popular will’
too far.

Henry Maine:

Henry Maine made very valuable contribution to legal philosophy by

way of historical comparative method. He was an erudite scholar of law.
He started his career as regions professor of civil in the University of
Cambridge at an early age of twenty five. He was law Member in the
Council of the governor General of India between 1861-1869. This
provided him an opportunity for the study of Indian legal system. From
1869 to 1877 he occupied the chair of historical and comparative
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jurisprudence in Corpus Christi College, Oxford. After that he held the
distinguished post of the Master of Trinity Hall Cambridge. ‘Ancient Law’
‘Village Communities’, ‘Early History of Institution’, ‘Dissertation on Early
Law and Customs’, are the important contributions made by him to legal
thought and legal philosophy.

Maine’s View on the Development of Law-

Maine, through his comparative researches came to the conclusion

that the development of law and other social institutions has been more
or less on an identical pattern in almost all the ancient societies
belonging to Hindu, Roman, Anglo Saxon, Hebrew and Germanic
Communities. Most of these communities are founded on patriarchal
pattern wherein the eldest male parent called the

Pater families dominated the entire family including all its male and
female members, children and slaves as also the property. The word of
the Pater families was to them which they were supposed to follow.
There were, however, some communities which followed matriarchal
pattern in which the eldest female of the family was the central
authority to manage all the affairs of the family. It is because of his
kinship, namely blood relationship with the family that a person
acquired a status. Thus, the law of person was to be determined on the
basis of his status. Thus, slave, servant, ward, wife, citizen, etc., all
symbolized statutes which the law recognized in the interest of the
community. Maine was of the view that Pater-familiar constituted the
lowest unit of primitive communities. A few families taken together
formed the Family-group which consisted of union of families. An
aggregation of families constituted Gens which in turn led to the
formation of tribes. A collection of tribes formed the community which
Maine termed as commonwealth. It was in this manner that early
primitive societies evolved, their relationship being regulated by the law
of status which was also called as law of persons.

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Stages of development of law – According to Maine the evolution and
development of law may be traced through following four stages-

1. Law Made by the Ruler Under Divine Inspiration

2. Customary Law
3. Knowledge of law in the Hands of Priests
4. Codification

Contribution of Maine

1. Improved upon the theory of Historical School: In Maine we find

a very balanced view of history. Savigny explained the relation
between community and the law but Maine went further and
pointed out the link between the developments of both and
purged out many of the exaggerations which Savigny had made.
2. Comparative study: Importance of Legislation: A balanced view.-
Most of the historical jurists of the Continent confined their
studies only to Roman law but Maine studied the legal system of
various communities and by their analysis laid down a
comprehensive theory of the development of law.

Maine inspired later jurists.-

Maine’s theory preaches a belief in progress and it contained the germs

of sociological approach. Jurists like Maitland, Vinograd off and Bryce
were inspired by Maine and they applied his historical and comparative
method to the study of law.

Meaning and Main characteristic of natural lawThe exponents of

natural law philosophy conceive that it is a law which is inherent in the
nature of man and is independent of convention, legislation or any other
institutional devices.

Dias and Hughes describe natural law as a law which derives its validity
from its own inherent values, differentiated by its living and organic

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properties, from the law promulgated in advance by the State or its
agencies.

According to Cohen, natural law is not a body of actual enacted or

Interpreted law enforced by courts, it is in fact of way of looking at
things and a humanistic approach of Judges and Jurists. It embodies
within it a host of ideals such as morality, justice, reason, good conduct,
freedom, equality, liberty, ethics and so on.

From the jurisprudential point of view, natural law means those rules
and principles which are supposed to have originated from some
supreme source other than any political or worldly authority. Some
thinkers believe that these rules have a divine origin, some find their
source in nature, while others hold that they are the product of reason.

Main Characteristics of Natural Law

The chief characteristic feature of natural law maybe briefly stated as

follows :

1. It is basically a priori method different from empirical method, the

former, accepts things or conclusions in relation to a subject as they are
without any need or enquiry or observation while empirical or a
posteriori approach tries to find out the causes and reasons in relation
to the subject-matter.

2. It symbolizes physical law of nature based on moral ideals which has

universal applicability at all places and times.

3. It has often been used either to defend a change or to maintain status

quo according to needs and requirement of the time. For example,
Locke used natural law as an instrument of change but Hobbes used it to
maintain status quo in the society.

4. The concept of 'Rule of Law' in England and India and 'due process' in
USA are essentially based on natural law philosophy.

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 Natural Law as distinguished from other Laws

Natural law also differs from other forms of law such as the canon law,
common law, constitutional law, international law etc. in the following
aspects :

1. Natural law is eternal and unalterable but the other forms of laws are
subject to periodical changes and alterations.

2. Natural law is not made by man, it is only discovered by him whereas

other laws are created, evolved, modified and altered by man.

3. Natural law is not enforced by any external agency but every other
form of law is enforced by State, sovereign or ruler and there is always a
coercive force behind it.

4. Natural law is not promulgated by legislation, it is an outcome of

preaching’s of philosophers, prophets, saints etc. and thus in a sense, it
is a higher form of law to which all forms of man-made laws should pay
due obedience.

5. Unlike other forms of laws, natural law has no formal written code.
Also there is no precise penalty for its violation nor any specific reward
for abiding by its rules.

6. Natural law has an eternal lasting value which is immutable and t it

has been generally accepted that any man-made law which runs
contrary to natural law may succeed for the time-being, but it is likely to
fail sooner or later.

7. The central idea behind natural law is that it embodies moral

principles which depend on the nature of the Universe and which can be
di.,covered by natural reason. But human law can only be said to be law
in so far as it conforms to those principles.

Thomas Hobbes (1588-1679) theory of natural law was based on

natural right of self-preservation of person and property. He made use
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of natural law to justify the absolute authority of the ruler by endowing
him power to protect his subjects. Thus, he completely denounced the
religious and metaphysical character of natural law.

Thomas Hobbes propounded his theory of social contract relating to

evolution of the State. He had himself participated iii the civil war
between King Charles I and British Parliament and supported the
former. Therefore, he obviously supported the absolute power and .
authority of the ruler. He accepted the ideal principles underlying
natural law but did not give it much credence for it lacked sanction
which, in his view was essential to command obedience from the
people.

According to Hobbes, prior to 'social contract', man lived in aotic

condition of constant fear. The life in the state of nature was litary,
poor, nasty, brutish and short". Therefore, in Order to secure f-
protection and avoid misery and pain, men voluntarily entered into
ntract and surrendered their freedom to some mightest authority who
uld protect their lives and property. This led to the emergence of the
titution of the 'ruler' which later assumed the form of the State. Thus
bbes was a supporter of absolute power of the ruler and subjects had
rights against the sovereign who had to be obeyed howsoever rannical
or unworthy he might be) Obviously, Church also had no wer or
authority over the sovereign.

John Locke (1632-1704)

The new political theories which emerged as a result of naissance,

favoured absolute sovereignty of the State—undermining e importance
of the individual. Therefore, in order to support the ghts of individual
against the absolute power of the sovereign, a new interpretation of the
natural law and social contract theories became ore or less necessary.
John Locke had witnessed the Glorius Revolutin of 1688 and the wave of
individualism in England which had permeated e political and legal

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theories in Britain at that time. He, therefore, ame out with a new
interpretation of the social contract rejecting obbes' earlier concept of
state of nature. He stated that the life in state f nature was not as
miserable and brutish as depicted by Hobbes, instead it was reasonably
good and enjoyable except that the property was insecure. In order to
ensure proper protection of property, man entered into the 'social
contract' surrendering only a part of his rights, and not all the rights as
contemplated by Hobbesian theory.

Thus, it would be seem that locke's idea of social contract was founded
on new secular approach to natural law whereby power of the
government was conceded on trust by the people to the rulers and any
infringement of the conduct by the rulers was treated as a breach of the
people's fundamental natural rights which justified revolt against the
government.

Locke pleaded for a constitutionally limited government. The nineteenth

century doctrine of laissez faire was the result of the individual's
freedom in matters relating to economic activities which found support
in Locke's theory. Unlike Hobbes who supported State authority. Locke
pleaded for the individual liberty.

Immanuel Kant (1724-1804)

The natural law philosophy and docti Me of social contract was further
supported by Kant and Fichte in eighteenth century. They emphasised
that the basis of social contract was reason' and it was not historical
fact. Kant drew a distinction between natural rights and the acquired
rights and recognised c al) the former which were necessary for the
freedom of individual. He favoured separation of powers and pointed
out that function of the State should be to protect the la Kant's
philosophy destroyed the foundation of natural law theories towards
the end of 18th century which suffered a death blow at the hands of

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Bentham in the earl nineteenth century because of his theory of
hedonistic individualism.

Critical Appraisal of Natural Law Theory

The part played by the natural law in development of modern law can
hardly be exaggerated. Legal history testifies that it was natural law
which directly or indirectly provided a model for the first man-made law.
Appreciating the contribution of natural law Roscoe Pound said. "the
uncertainty of the higher law is preferable to the arbitariness and
insolence of naked force".

Oppenheim also recognised the contribution of the natural law and

observed, "but for the system of the law of nature and doctrines of its
prophets modern constitutional law and the law of nations would not
have been what they are today".

Despite the merits of natural law philosophy, it has been criticised for
its weaknesses on the following grounds :

1. The moral proposition, i.e., 'ought to be' may not always necessarily
conform to the needs of the society. For instance, it is natural for men to
beget children, as it is for trees to bear fruit. But the factual position
may be different since many countries including India, may like to
restrict the growth of their population by resorting to family planning
devices. While, on the other hand, no one would ever like to restrict the
growth of fruits on trees.

2. The concept of morality is a varying content changing from place to

place; therefore, it would be futile to 'think of universal applicability of
law. For example, one society may adhere to monogamy while another
may permit plurality of, marriages. Again, adultery is an offence in India
whereas in Britain, it is merely a civil wrong.

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 3. The rules of morality embodied in natural law are not amenable to
changes but the legal rules do need a change with the changing needs of
the society.

4. Legal disputes maybe settled by law courts but the disputes relating
to morality and law of nature cannot be subjected to judicial scrutiny,
and even if they are challenged in a court of law, the correctness of the
verdict may always be questioned since it is based on subjective
discretion of the Judge.

5. Though apparently law and morality may appear to be in conflict with

each other, the fact remains that in order to decide whether a particular
law is 'just' or `unjust', it has to be tested on the basis of the principles
of morality.

Meaning of Sociological School

Sociological school of jurisprudence has emerged as a result of synthesis

of various juristic thought. The exponent of this school considered law
as a social phenomenon. They are chiefly concerned with the
relationship of law to other contemporary social institutions. They
emphasise that the jurists should focus their attention on social
purposes and interest served by law rather than on individuals and their
abstract rights. According to this school, the essential characteristic of
law should be to represent common interaction of men in social groups,
whether past or present, ancient or modern.

The main concern of sociological jurists is to study the effect of law and
society on each other. They treat law as an instrument of social
progress. The relation between positive law and ideals of justice also
affects the sociology of law.

Many authorities contend that sociological jurisprudence originated as a

reaction to rigid legal positivism which relied on the fact that law is

19
solely based on the coercive power of the State and completely rejected
the pursuits of morality and justice as irrelevant in human relations.

Characteristic:

(1) the exponents of sociological school lay greater stress on

functional aspect of law rather than its abstract contents.
(2) They consider law as a social institution essentialy inter-linked
with other disciplines bearing direct impact on the society and
uphold the view that law is designed on the basis of human
experience in order to meet the needs of the society.
(3) Sociological School completely discards the abstract notions of
analytical positivism which lay over-emphasis on command or
power aspect of law as also the dead weight of past culture and
traditions which constituted the main theme of the historical
jurisprudence.
(4) Sociological jurists, however, differ in their approach to the
perception of law. Some prefer to adopt a pragmatic empirical
recourse to study the functional aspect of law while others
emphasise on defining law in terms of court's ruling and decisions
thus adopting a realistic approach to law.

Four Developmental Stages of Sociological Jurisprudence

The major stages through which the sociological jurisprudence evolved

and developed may briefly be stated as follows:

(1) Empirical Scientific Approach to Law : Auguste Compte is said to be

the founder of the sociological jurisprudence who made a beginning to
what has been known as 'scientific positivism'. His approach to law was
empirical based on experience and observation Thus he rejected
metaphysical methods of the study of law which was commonly
resorted to by his predecessors belonging to the philosophical and
historical school. He denounced all hypothetical considerations in the
perception of law and based his study of law on empirical observation in
20
an effort to establish co-relation between law and society. Being a
mathematician himself.

(2) The Impact of Darwinian Evolutionary Theory : The next stage in the
development of sociological jurisprudence has been called as the
'biological stage' because of the influence of the Darwin's evolutionary
theory. Herbert Spencer explained social phenomenon as a biological
process adapting itself to the changing needs of the society He asserted
that law must evolve and adapt itself to the changing needs of the
progressive society as a whole.

(3) Impact of Psychological Theories : According to Dean Roscoe Pound,

the third stage of the development of sociological school is the
psychological stage. It was a period of later half of the 19th century and
the first quarter of the twentieth century during which psychology had
greatly influenced other social sciences including the law. Gierke (1841-
1921) denounced the orthodox approach of the historical school which
overemphasised on metaphysical approach to law and highlighted the
importance of group-personality for securing collective interests.

(4) Unification Stage : The last stage of development of sociological

jurisprudence consists of unification of sociological method with other
social sciences. It was realised that different social sciences represent
different aspects of human society.

Roscoe Pound (1870-1964)

The contribution of Roscoe Pound to sociological jurisprudence may be

studied under the following heads

1. Emphasis of Functional Aspect of Law : Roscoe Pound added new

dimensions to sociological school of jurisprudence. His approach to
sociological jurisprudence was different in the sense that he attempted
to cover social-life as a whole unlike his predecessors who considered
law as the main subject of study and society is merely subsidiary to it.

21
Pound laid greater stress on functional aspect of law. This is why his
approach has been termed as 'functional school' by some writers. 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." He thus considers law as a means of a
developed technique and treats jurisprudence as a 'social engineering'.
The end of law according to him, is to satisfy a maximum of wants with a
minimum of friction or confrontation.

2. Pound's Theory of Social Engineering : Roscoe Pound conceived law

as a 'social engineering', its main task being to accelerate the process of
social ordering by making all possible efforts to avoid conflicts of
interest of individuals in the society. Thus courts, legislators,
administrators and jurists must work with a plan and make an effort to
maintain a balance between the competing interests in society. He
enumerated the various interests which the law should seek to protect
and classified them into three broad categories.

(i) Private Interests : These include :

(a) Individual's interests of personality, namely, interests of physical

integrity, reputation, freedom of voilation and freedom of
conscience. They are safeguarded by laws of crimes, torts, contracts,
constitutional law, etc.

(b) The interests of domestic relations of persons such as husband

and wife, parent and children, marital life as also the individual's
private interests.

(c) The interest of property, succession, testamentary disposition,

freedom of contractual relations, association etc. are also included in
the category of private interests.

(ii) Public Interests : The main public interests according to Roscoe

Pound are :

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 (a) Interests in the preservation of the State as such; and

(b) State as a guardian of social interest such as administration of

trusts, charitable endowments, protection of natural environment,
territorial waters, sea-shores, regulation of public employment and
so on.

(iii) Social Interests : The social interests which need legal protection
are :

(a) Interests in the preservation of peace, general health, security of

transactions etc.

(b) Preserving social institutions such as religion, political and

economic institutions etc.

(c) Interests preserving general morals by prohibiting transactions

which are against morality such as prostitution, drunkenness,
gambling etc.

(d) Interests in conservation of social resources e.g., natural

resources, reformation of delinquents, protection of economically
weaker sections of the society.

(e) Social interest in general progress including economic, political

and cultural progress. For example, freedom of trade and commerce,
freedom of speech and expression, encouragement to arts and
promotion of higher education etc.

(f) Interests which promote human personality by enabling a person to

live political, physical, cultural social and economic life to suit his taste
and improve his personality.

3. Jural Postulates of Roscoe Pound : In order to evaluate the conflicting

interests in due order of priority, Pound suggested that every society has
certain basic assumptions upon which its ordering rests, though for most
of the time they maybe implicit rather than expressly formulated. These
23
assumptions maybe called as jural postulates of the legal system of that
society. Pound has mentioned five jural postualtes as follows :

Jural Postulates I : In civilised society men must be able to assume that

other will commit no intentional aggression upon them.

Jural Postulate II : In Civilised society men must be able to assume that

they may control for beneficial purposes what they have discovered and
appropriated to their own use, what they have created by their own
labour and what they have acquired under the existing social and
economic order.

Jural Postulate III : In civilised society men must be able to assume that
those with whom they deal as a member of the society will act in good
faith and hence :

(a) will make good reasonable expectations which their promises or

other conduct reasonably create;

(b) will carry out their undertaking according to the expectations

which the moral sentiment of the community attaches thereto;

(c) will restore specifically or by equivalent what comes to them by

mistake, or failure of the pre-suppositions of a transaction, or other
unanticipated situation whereby they receive at other's expense
what they could not reasonably have expected to receive under the
actual circumstances.

Jural Postulate IV: In civilised society men mut be able to sume that
those who engage in some course of conduct will act' with e care not to
cast an unreasonable risk of injury upon others.

Jural Postulate V: In civilised society men must be able to sume that

others who maintain things or employ agencies, harmless in e sphere of
their use but harmful in their normal actions elsewhere, d having a

24
natural tendency to cross the boundaries of their proper e will restrain
them and keep them within their proper bounds.

Pound's Contribution : Roscoe Pound based his theory of social

gineering on the assumption that protection of interests is the main
bject matter of law and it is the duty of jurists to make a 'valuation of
ese interests' for the satisfaction of human wants in order to strike a
alance between stability and social change. Thus, adopting a functional
pproach to law, Pound stresses upon the need for study of law in lation
to and as a part of the whole process of social control.

Criticism Against Pound's Theory: Dr. Allen has criticised the tilitarian in
Pound's theory as it confines the interpretation of 'wants d desire' to
only material welfare of individual's life completely gnoring the personal
freedoms which are equally important for a happy ocial living.

It has also been argued against Pound's theory of interests that it as no

significance in a pluralistic society where there are linguistic, thnic, and
religious minorities having diverse interests. Harmonising heir divergent
interests is by no means as easy task to be performed hrough law and
courts.

Dr. Friedmann has expressed doubts about the value of classification of

interests and remarked that "there is danger of an plicit grading of
interests as either individual, public or social because these are changing
conceptions as has been accepted by Pound himself. Not only that, the
respective value of these interests and their valuation also depends on
changing political and legal system”.

Basic Features of Realist School

Realism denounces traditional legal rules and concepts and concentrates

more on what the courts actually do in reading the final decision in the
case before them. In strict sense of the term, realists define law as
generalised prediction of what the courts will do. The main-

25
characteristic features of Realist jurisprudence as stated by Goodhart
are as follows :

(1) Realists believe the that there can be no certainty about law as its
predictability depends upon the set of facts which are before the
court for decision.

(2) They do not support formal, logical and conceptual approach t

law because the Court while deciding a case reaches its decision on
'emotive' rather than logical grounds.

(3) They lay greater stress on psychological approach to the proper

understanding of law as it is concerned with human behaviour and
convictions of the lawyers and Judges.

(4) Realists are opposed to the value of legal terminology, for they
consider it as tacit method of suppressing uncertainty of law.

(5) The realist school prefers to evaluate any part of law in terms of
its effects.

According to Llewellyn, there is no Realist school as such, it is only a

movement in thought and work about law. It presupposes that law is
intimately connected with the society and since the society changes
faster than law, there can never be certainty about law. There is no
place for idealism in law and, therefore, law as it 'is' must be completely
divorced from law as it 'ought' to be. Since realists consider law as what
the courts do with reference to a given set of facts to reach decision,
they lay greater emphasis on case-law method of the study of law.

Llewellyn acknowledged the fact that there is large measure of

predictability in case law attributable to the general "craft" of decision
making. He placed reliance on insight and wisdom of the judiciary which
enables Judges to achieve objective criteria so as to arrive at the
appropriate legal solutions. This brings about consistency in the
treatment of cases and thereby promotes the cause of Justice.
26
Jerome Frank (1889-1957) was initially a practising lawyer. He served in
the Law Department of the Government for about a decade. In 1941, he
was appointed as Judge in the United States Circuit Court.

Frank explained his views about realistic approach to jurisprudence in

his classic work entitled, Law and the Modern Mind. He exploded the
myth that law is continuous, uniform, certain and invariable and
asserted that the Judges do not make law but instead, they discover it.
According to him, the individual decision of the Judge is law par
excellent. He reiterated that law consists of decisions and the personal
convictions, likes and dislikes, emotions. The temperament of the Judge
has an important bearing on the mechanism of law.

Scandinavian Realism

According to Bodenheimer, Scandiniavian realism differs from the

American realist school in two major aspects, namely,

(1) it is more speculative in approach to legal problems, and

(2) it does not devote as much attention to psychological behaviour of

Judges as the American realists do. However, both adopt an empiricist
attitude towards L. and life and give more weight to the social effects of
law with emphasis of judicial decisions.

Friedmann has summarised the contribution of Scandinavian rea'7st

school to jurisprudence and observed that Swedish realists have
demonstrated that "any legal order must be conditioned upon a certain
scale of values, which can be assessed not in absolute terms but with
regard to social needs changing with times, notions and circumstances.
Law is directed to certain ends". Unlike the American realists the
Scandinavians are concerned with the theoritical working of the legal
system as a whole.

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 Contribution of Realist School of Jurisprudence

The main contribution of Realists to jurisprudence lies in the fact that

they have approached law in a positive spirit and demonstrated the
futility of theoretical concepts of justice and natural law. Opposing
positivist's view, the realist school hold that law is uncertain and
indeterminable in nature, therefore, certainty of law is a myth. As Frank
Jerome rightly pointed out, "realist school has sought to liberate the
Judges from the enslavement of unduly rigid legal concepts and exorted
them to take into consideration the ground realisties of social facts
while deciding the cases." According to Friedmann, realist movement is
an `attempt to rationalise and modernise the law—both administration
of law and the material for legislative change, by utilising scientific
method and taking into account the factual realities of social life. For
Julius Stone, "Realist movement is a gloss on the sociological approach
to jurisprudence. He considers realism as a combination of the positivist
and the sociological approach. It is positivist in the sense that it
undertakes the study of law as it is, and sociological, because it expects
that law should function to meet the ends of society. Thus in his view,
realist school is merely a branch of sociological jurisprudence and a
method of scientific and rational approach to law.'

Criticism Against Realism

The realist approach to jurisprudence has evoked criticism from many

quarters. The critics allege that the exponents of Realist school have
completely overlooked the importance of rules and legal principle and
treated law as an assemblage of unconnected court decisions. Their
perception of law rests upon the subjective fantacies and life-experience
of the Judge who is deciding the case of dispute. Therefore, there
cannot be certainty and definiteness about the law.

Another criticism so often advanced against realists is that they seem to

have totally neglected that part of the law which never comes before

28
the court. Therefore, it is erroneous to think that law evolves and
develops only through court decisions. In fact a great part of the law
enacted by legislature never comes before the court, nevertheless, it
does remain a law enforceable and applicable in appropriate cases and
situations.

Realist school has exaggerated the role of human factor in judicial

decisions. It is not correct to say that judicial pronouncements are the
outcome of personality and behavior of the judge. There are a variety of
other factors as well /which he has to take into consideration while
reaching his decision.

Besides the administration of civil and criminal justice, the higher courts
in India have also taken up the task of social justice administration
through judicial activism in the exercise of their writ jurisdiction. This
trend is discernible from the decisions of the Supreme Court and some
of the High Courts onwards lat seventies of the 20th century. The higher
judiciary realized that India being a welfare State, it is committed to the
cause of social justice and the courts must respond to this cause keeping
in view the felt needs of the Indian Society.

The Indian Constitution is one of the best documents to show as to how

the concept of justice in its extended form has been engraved in various
provisions of the Constitution. To begin with, the Indian Constitution
envisages that the Republic of India shall secure to all its citizens
justice—social, economic and political, liberty of thought and expression
and equality of status and opportunity. It recites that constitutional law
shall Endeavour to ensure justice to all citizens within the framework of
the constitutional mandate.

The words "Socialist Secular Democratic Republic" added by the 42nd

Constitutional Amendment, 1976 further illustrate that the principal aim
is to eliminate inequality and provide a decent standard o life to the
working people, the Supreme Court in S. D. Makara v. Union of India and

29
Minerva Mills cases further observed that the expression `social justice'
in the Preamble recognizes the Benthamite principle o greatest
happiness of the greatest number without deprivation of leg rights of
persons.

The concept of justice, particularly, Article 46 seeks to protect the

weaker sections from social injustice. Similar provisions also exist in
Article 15 (4) regarding special provisions for backwards classes Article
16 (4) regarding reservation for backward classes; Article 330 regarding
special provisions relating to Scheduled Castes and Scheduled Tribes in
reserving certain seats of Parliament, Article 335 regarding relaxation of
minimum qualifying standard for admission to certain professions e.g.,
medical, engineering etc.

Article 39-A contains a directive for legal aid to poor ensuring the poor
sections access to justice and law courts. It is on the basis of this
provision that legal aid programmes have been launched by most of the
States in India. The Legal Services Authorities Act, 1987 has been
enacted in order to achieve the objective enshrined in Art. 39A. For the
disposal of cases expeditiously and without much cost, Lok Adalats have
been constituted under the Act which are functioning as voluntary and
conciliatory agencies. More recently, the Supreme Court Legal Service
Committee Rules have been framed in 2000 with a view to providing
free legal services to indigent and needy litigants in their cases before
the Supreme Court.

The directive principles contained in Articles 39 (a) to (g) further

requires the State to remove inequalities of wealth and ensure
distributive justice to all alike and ensure fair distribution of material
wealth to remove disparity between 'haves' and 'have notes.'

Likewise, Article 43 regarding living wages and Article 43-A which was
introduced by 42nd Constitution Amendment, 1976 regarding
participation of workers in management of industries are directed

30
towards ensuring social justice for the industrial workers. That apart,
Article 41 regarding public assistance to disabled and aged persons and
Article 42 regarding securing just and humane condition of work etc. are
all directed towards the attainment of the object of social justice.

Besides, the above provisions, Article 311 (i) which provides that no
person in the civil service shall be removed or reduced in rank unless
given a reasonable opportunity of being heard is again based on sound
principle of natural justice.

The constitutional provisions relating to preventing detention as

contained in Article 22 and protection against double jeopardy
contained in Article 20 also seek to ensure justice to every citizen.

Apart from the foregoing provisions, the recent trend of public interest
litigation which Professor Upendra Baxi preferred to call the Social
Action Litigations (SAL) has revolutionalised the whole law relating to
writ remedies under the constitutional provisions as provided in Article
32 and. Article 226. Now even an ordinary prayer of petition to the
Supreme Court under Article 32 or to the High Court under Article 226,
maybe taken up and heard by these Courts as writ petition if it is filed on
behalf of some group of persons who themselves are unable to move
the Court due to poverty, misery etc. That is, under PIL justice has been
taken to the door-steps of the poor, down-trodden and persons of
meager resources. The land-mark decisions in People's Democratic
Right v. Union of India; Bandhua Mukti Morcha case; M _ C. Mehta v.
union of India; Olga Tellis v. Maharashtra State; Neerja Choudhri v. State
of Maharashtra; Meneka Gandhi v. Union of India; Vishakha v. State of
Rajasthan are only some of the best illustrations of demonstrate the
incorporation of the principles of social justice through this new trend of
writ jurisdiction.

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 Secondary Functions of Court

1. Adjudication of the claims of citizens against the State through

petition of right.

2. Declaration of the rights of individuals by declaratory proceedings.

This may included declaration of nullity of marriage, legitimacy,
interpretation of wills, advice to executor etc.

3. Administration of the trust, insolvency, liquidation proceedings etc.

4. Title of right as created by decrees e.g., decree of divorce of judicial

separation, adjudication of bankruptcy, grant of letters of
administration, appointment or removal of trustees etc. In Such cases
the judgment of the court operates as a title of right and not as remedy
of a wrong.

32