JURISPRUDENCE

INTRODUCTION:

Jurisprudence is a word derived from the Latin word Jurisprudentia which means knowledge of law. It is
the study of theory, origin and concept of law. Many scholars of jurisprudence explain jurisprudence as
understanding of the role of law in society, legal reasoning, legal systems and legal institutions.

There are 5 schools of jurisprudence.

1-PHILOSOPHICAL SCHOOL:

Aristotle is known as father of natural law. The Philosophical school focuses on the law of the nature.
This school believes that law is the product of human reasons and its purpose is to elevate human
personality and there are inherent laws that are common to all societies. It also suggests that laws are a
logical progression from morals and if some actions are considered as morally wrong then it will be
against the law. The main point explained in this school is that the law is based on reason.

The main jurists:

1. Grotius: He stated that “a dictate of right reason which points out that an act, according as it is
or is not in conformity with rational nature, has in it a quality of moral baseness or moral
necessity.”

2. Hegel: The main contribution of Hegel for this school was the development of the idea of
evolution. He stated that “the state and law both are evolutionary.”

3. Immanuel Kant: He said “a dictate of right reason which points out that an act, according as it
is or is not in conformity with rational nature, has in it a quality of moral baseness or moral
necessity”. And “the opportunity of man act as indicated by his will and the moral proposes are
commonly co-relative because no moral hypothesis is conceivable without man’s opportunity of
self-assurance“.

2-ANALYTICAL SCHOOL:

John Austin is the father of Analytical school of jurisprudence and Sir Henry gave the name analytical to
this school. It is also called Positive school or positivism law. This school of jurisprudence focuses the
law as it exists not ought to be. The jurists suggest that the most important feature of law is its relation to
the state. This school holds that law and morality don’t have necessary connection and the force of law
comes from some basic social facts.

Main jurists:

1. Bentham: He is known as founder of this school. He wrote book named ‘The limits of
jurisprudence defined’. Bentham was against the point that the laws are made by judges. He said

1
 that laws must be made by legislature based on pain and pleasure. According to Bentham, there
are different aspects of the law. They are Source, Subjects, Objects, Extent, Aspect, Force,
Remedial appendages, and Expression

2. Austin: Austin is the father of English jurisprudence. He wrote the book ‘Province of
Jurisprudence Determined’. Austin divided the law into positive law and positive morality. He
stated positive laws as ‘laws properly so called’ and positive morality as ‘laws improperly so
called’. He further added that any law is called positive law when it is comprises on three
elements they are sanction, command and duty. According to Austin custom is not laws. People
follow laws because when they violate the law carries punishment in return.

3-HISTORICAL SCHOOL:

The founder of this school is Savigny. This school believes that the law is a result of a long historical
advancement of the public. From this school it is debated that law is exaggerative form of economic
necessities, social custom, conventions of religious principles and the relation of people with society.
People who follow this school stated that the law is found not made. The historical school denies the idea
of natural school of law which stated that the beginning of law is from superior authority and has specific
divine relevance.

The main focus was the need of people changing time to time. If the needs of people are being changing
as time is passing then law should be changed according to the need. This school follows the idea of man-
made laws. Law is formulated for the people and by the people it means that law should be according to
the necessities of people changing time to time and every person knows his needs better than anyone else.
The basic source of the Historical School is the customs of people and their conducts which changes as
their needs change. It is also called the continental school of Jurisprudence.

The main and prominent jurists:

1. Savigny: Savigny is the father of the historical school and he gives Volksgeist theory which says
that the law is based on the free will of common people. The main purpose of this school was to
establish that a nation’s customary law is its truly living law and the task of jurisprudence is only
to uncover and expose this law. He further added that law develops with the development of
Nations increments with it and passes on with the disintegration of the countries. According to
Savigny law is part of the culture and he rejects the theories of natural law and positive law.

2. Sir Henry Maine: Sir Henry is known as the founder of the English Historical School of Law.
He explain the enhancement of law in four stages:
 First Stage: Laws are made by the instructions of rulers. They act under divine
inspiration.
 Second Stage: In this stage the commands given by the King are considered as customary
law.
 Third Stage: In this stage the administration of customs will go under the power of
minority and the ruler is superseded by a minority who obtain control over the law.
 Fourth Stage: This stage codifies and promulgates the law.

2
 Sir Henry also said that after the fourth stages the societies need to progress in order to further
develop their legal structures. Sir Henry supports the concept of ‘codification’ and legislations.

3. George Friedrich Puchta: He was one of the great jurists of historical school and he also
contributes in this school by making improvements in the theory of Savigny and made it more
logical. He said that the idea of law came into existence due to the conflict between the individual
will and general will.
According to Puchta “What is visible to us is only the product, law, as it has emerged from the
dark laboratory in which it was prepared and by which it became real”. He further added that the
customary law was the most genuine expression of the common conviction of the people, and for
this reason, far superior to legislation and he considered explicit legislation useful only insofar as
it embodied the prevailing national customs and usages.

4-SOCIOLOGICAL SCHOOL:

This school considers law as a sociological phenomenon. The main concept of this school is to interpret
the law in social context which will bring good to the society. This school explains that the Law is wholly
concerned with its effect and results on society rather than treating law as will of god or command of
sovereign. The main point given by this school is that the law should be studied by the point of view of
the society and the social science method must be utilized to achieve this purpose. 

The prominent jurists:

1. Montesquieu (1689-1755): Montesquieu was the French jurist who supports the idea that the
legal process is influence by the social condition of society. He explains the significance of
history while making laws for society. Montesquieu in his book named The Spirit of Laws wrote
that “law should be determined by the characteristics of a nation so that they should be in
relation to the climate of each country, to the quality of each soul, to its situation and extent, to
the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they
should have relation to the degree of liberty which the constitution will bear, to the religion of the
inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs”.

2. Roscoe Pound: He is called the father of sociological school. Roscoe Pound use the term “Social
Engineering”, which means like engineers who manufacture goods and products for the society
with modification day by day, like the mobile phones and laptops, with these inventions, these
engineers helped the entire society globally by easing our works, now we don’t have to carry
those big old fashioned computers and those old ugly phones. Just like these engineers, we need
“Social Engineers” in our society to make new laws, amend the old ones in order to deal with the
current social problems and for the future ones. In a society the desire, needs and interest of an
individual are supreme for himself or herself as compared to the interest of the other person.

3. August Comte: Comte used the word “Sociology” for the very first time and he compared it to
an organism. He believed that “Society is like an organism and it could progress when it is

3
 guided by Scientific Principles”. August Comte makes great efforts to use the law as a tool by
which human society maintains itself and progresses.

4. Duguit: He contribute in this school by stating that in a society the law teaches us to become
interdependent to each other and he use the term called Social Solidarity. He further said that it is
the law of our society which promotes us all to perform social solidarity and the State is
responsible to promote Social Solidarity in the society. There should be no any law in societies
that deny promoting Social solidarity and if in case there is any law then it is a bad law.

5-REALIST SCHOOL:

This school is called realist because it focuses on approach that studies law as it is in the actual working
and its effects ahead. Realist school denies the traditional law definition and considers the decisions by
the courts. This school focuses on working of law and its effect that’s why it is called realist school.

This school supports sociological jurisprudence and recognizes law as the result of social influences and
conditions, and regards it as judicial decisions.

The main jurist of this school said that:

1. Oliver Holmes: “Law is what the courts do; it is not merely what the courts say. Life of law has
not been logic; it has been experience.”

2. Gray: “Law is what the judges decide. Everything else including a statute is merely a source of
law until interpreted by a court.” “Courts put life into the dead words of the statute including
expert opinions, customs and public policy.”

3. Jerome Frank: “Law is uncertain. Certainty of law is a myth.”