- The aim of analytical jurisprudence is to research, while not taking any reference either to their historical origin or development or their moral significance or validity, the primary principles of law. Different School of Law
- The most task of the Analytical School is a lucid and systematic exposition of legal concepts with a mature system of law.
- It’s conjointly referred to as positive school because there is no involvement of the school with the past or with the longer term of law however with the law which exists i.e., with the law “as it is” (Positum).
- The chief exponent of the Positivist or Analytical School in English is legal expert, Austin, Sir William Markby (1829-1914), Sheldon Amos (1835-1886), Netherlands (1835-1926), almond (1862-19240) and faculty member. H.L.A Hart(1907).
(i) THEORY OF BENTHAM
- Bentham was a great reformer of law and he believed that no Reform of substantive law may be led without reform of its kind and structure.
- He advocated an imperative theory of law in which the key thought is those of sovereignty and command.
- Bentham’s sovereign is “any person or assembly of persons to whom a full political community are (no matter on what account) presupposed to be in an exceeding disposition to pay obedience which in preference to the will of the other person”.
- He believed legal sanctions are necessary and are provided by subsidiary laws.
- The individuality of law “results from the integrality and therefore the unity of it ordered together”.
- Bentham’s law is termed “ Utilitarian Individualism” He criticized the tactic of the law created in administration as a result of its restraint on individual Liberty.
- Also, he said, the purpose of the law is to bring pleasure and avoid pain.
According to Friedman, Bentham’s theory’s weakness was the abstract and doctrinaire rationalism that stops him from seeing man altogether with his complexities and conjointly, pleasure and pain alone can not be the check to consider a law.
(ii) COMMAND THEORY OF JOHN AUSTIN (1790-1859)
- Austin proposed that positive law has four components i.e., command sanction, duty and sovereignty.
- He says, “ laws properly thus referred to as a species of command.”
- Being a command, each law properly thus refers to flows from a determinate source.
- Also in his views, a law may be a command of the sovereign backed by a sanction. Duty and sanction are interrelated terms, the concern or sanction provision drives to obedience.
Prof. Dias criticizes the idea that the concern of sanction isn’t the only or principal motive for obedience.
Another criticism is that Austin found himself compelled to treat nonexistence as a sanction so as to accommodate. Example the rule, “ you need to create a gratuitous promise beneath seal,” among his command-duty-sanction model.
(iii) H.L.A HART’S THEORY
- Prof. Hart is considered the leading representatives of British positivism.
- In step with him “ wherever there’s the law, their human conduct is formed in some sense non-optional obligation. The thought of obligation is at the core of a rule.
- He established the thought of primary and secondary rule –
He makes a distinction between basic or primary rules and secondary rules. Beneath primary rules masses are needed to try to do or abstain from bound action whether or not they would like or not.
Secondary rules are in an exceedingly sense parasitic upon or secondary to primary rights. They provide that people could also be doing or communicating certain things to introduce new rules of the first kind, extinguish or modify previous rules, in numerous ways which confirm the incidence or management of their operations.
- Primary rules impose duties. Secondary rules make sure powers, public or non-public.
- Hart viewed that it’s doable to imagine a society with no legislation, no law-makers, court or official of any kind.
Such a scheme is commonly noted jointly of custom however Hart prefers to visit such a scheme jointly of primary rules of obligation.
faculty member Ronald Dworkin has criticized Hart for representing law as a system of rules and for suggesting that at the bound purpose the judges use their discretion and play a legislative role.
(iv) PURE THEORY OF LAW
- According to Hans Kelsen writes that a theory of law ought to be free from ethics, politics, sociology, history etc. in numerous words it ought to be pure.
- The aim of a theory of law is to chop back Chaos and multiplicity to unity. Legal theory is science and not volition.
- The opinion of Kelsen is that in every system in spite of what propositions of law we have a tendency to tend to start, the academic degree hierarchy of “ought’s” is traceable to some initial on basic “ought” from which all others emanate. This is often spoken of as by him “Grundnorm” or the essential or law.
- When a Grundnom ceases to derive a minimum of support, it ceases to be the thought of the legal order and it’s replaced by another Grundnorm that obtains the support of the parents.
- The Grundnorm is the beginning line for the philosophy of Kelson. the rest of the system is taken into consideration as broadening down in gradations from it.
- Kelson does not give any criterion that the minimum of effectiveness is to be measured. It’s contended that in regardless of approach the effectiveness is measured, Kelson’s theory ceases to be “pure”
Grundnorm -Definition and Criticism
- According to Kelson, a dynamic system is one within which recent norms are constantly being created on the authority of an original or basic norm which is thought of by him as “Grundnorm”.
- Grundnorm is that essential all basic norm.
- Every rule of law derives its efficiency from another rule standing behind it, but Grundnorm has no rule behind it.
- The Grundnorm is that the initial hypothesis upon which the entire system rests.
- We cannot account for the validity or the existence of Grundnorm.
- What Kelson said was that the Grundnorm got to command a minimum of support. but at intervals in the international sphere, there are two accomplishable Grundnorm, the management of each municipal system or the management of law. Every National legal order cannot acknowledge any norm superior to its own Grundnorm.
HISTORICAL SCHOOL OF LAW
- According to G.G. Lee historical jurisprudence deals with law as a result of its appearance in varying stages of development. It holds fast the thread that binds on the modern and primitive conception of law and seeks to trace through all the tangled mazes that separate the two, line of association between them.
(i) F.K VON SAVIGNY’S THEORY
- According to Savigny, the character of any specific system of law was a reflection of the spirit of the people who evolved it. This was later defined as a result of the Volksgeist by Puchta, a disciple of Savigny.
- All law is the manifestation of this common consciousness. The broad principles of the system are to be found at intervals the spirit of people that is Volksgeist which they manifest themselves in customary rules.
- The Volksgeist cannot be criticized for being what it’s. It is the quality by that laws, that is the acutely conscious product of will as a distinction from customary conviction, are to be judged.
- An individual jurist would possibly see the favoured conviction.
- The Volksgeist was a unique and typically mystical reality that was joined to the biological heritage of people.
- Laws are the result of the Volksgeist, the national spirit of the genius of the people.
- Savigny successfully used this Volksgeist theory to reject the French code and move to written law in Germany.
- Professor Dias points out that the Volksgeist theory minimizes the influence that individuals, some time of the alien race, have exercised upon legal development.
- Professor Dias extra points out that the influence of the Volksgeist is at the foremost of really restricted one.
(ii) HENRY MAIN’S ANTHROPOLOGICAL APPROACH
- Henry Maine created a comparative study of the varied legal systems and derived the course of their evolution.
- According to him, law developed through four stages
- The starting law was created by commands of the ruler believed to be acting underneath divine inspiration because of the inspiration by the Themistes within the verse form of Homer.
- within the second stage, commands crystallize into customary law
- Within the third state, the information and administration of customs go into the hand of a minority typically of a non-secular nature, because of the weakening of the ability of the initial law-makers.
- The fourth stage was the time when code law was published within the style of code, as Solans Attic code or the twelve tables within Rome.
Societies that don’t progress on the far side, the fourth stage that closes the time of spontaneous legal development area units, are known as static societies by Maine.
- The legal fiction or Maine has typically been thought-about as a form of clumsy self -deluding quite Legislation, this read of fiction is unjust and this thought the role it competes within the development of law.
(iii) HERBERT SPENCER’S BIOLOGICAL INTERPRETATION
- Herbert Herbert Spencer, an English Sociologist, took Darwin’s theory and applied it to society’s modification and evolve over time.
- Herbert Spencer took the speculation of evolution one step on the far side of biology and applied it to mention that societies wherever organizations that progress through changes are almost like that of different living species.
- His main objections were threefold: the employment of powerful Powers of the govt., the discouragement given to voluntary self-improvement and also the disregard of the” laws of life”
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- The sociological school devotes its attention to not the moral content but aims to the particular circumstances that gave rise to the legal establishments and that condition their scope and operation.
- It is actually involved not with the man as a person however with the man in the association. The whole theory is to protest against the orthodox idea of law as an emanation from one authority within the state.
(i) IHERING’S THEORY.
- Rudolf von Inhering developed his philosophy through intensive study of the spirit of civil law and also the genius of Roman jurisprudence insisted him to dislike the jurisprudence of concepts.
- Through his studies Ihering became conscious of the dominant necessity for the law to serve social functions that created Ihering as utilitarian.
- According to him, the aim of the law is the protection of interest for maximum pleasure and minimum pain.
- Inhering Theory divides into the subsequent 3 classes the totality of human want:
nonlegal human wants- offered to man naturally
Mixed legal human desires -conditions of life exclusive to man
The strictly legal conditions that rely entirely on legal command.
- According to him, “law is the addition of the conditions of social life within the wider sense of the term as secured by the power of the state through an external compulsion .”
- Dr Friedmann writes that with Ihering, utilitarianism condemned to mean the pursuit of individual pleasure and has become the balance between individual and communal interests.
(ii) EUGEN EHRLICH’S THEORY
- Eugen Ehrlich was primarily involved with the social basis law. In keeping with him, the law comes from social truth and depends not on state authority however on compulsion.
- He believes, “living law” is to be discovered from judicial decisions, trendy business documents against that judicial decision ought to be checked and observation of individuals by living among them and noting their behaviour.
- According to him statute that is routinely forgotten is not any a part of the living law.
Dr. Friedman says that Ehrlich offers no clear criterion by a legal norm from the other social norm, he confuses the position of custom as a supply of law with customs as a kind of law.
(iii) THEORY OF SOCIAL ENGINEERING
- Roscoe Pound connected the task of the attorney to engineering and he recurrent that analogy oftentimes.
- The aim of social engineering is to create as efficient a structure of society as attainable which needs the satisfaction of the utmost needs with the minimum of friction and waste.
- For that purpose, interests were outlined by Pound as claims or needs or wishes or expectations that men assert are actual, regarding that law should do one thing which organized societies are to endure.
- It is the task of the jurists to help the court by classifying and expatiating on the interest protected by law
- For facilitating the tasks of social engineering, Pound classifieds the assorted interests into 3 heads-
a.personal interest -individual interest of temperament
b.Public interest- Public interest claims or demand on wishes declared by people in or checked out from the viewpoint of political life
C.Social interest- social interests are claims or demands or wishes thought of in terms of social life and generalized as claims of the group.
(iv) PRINCIPLE OF SOCIAL SOLIDARITY
- According to Duguit (1859-1928), the outstanding truth of society is the independence of individuals.
- All human action and organization ought to be directed to the top making certain the harmonious operating of man with man. Duguit calls it the principle of social solidarity.
- According to him the full plan of sovereignty is insignificant. All power is proscribed by the test of social solidarity.
- Implication of Social commonality –
– The social commonality is that the criterion of deciding the activities of people and every one organization.
– The state may be a human organization whose duty is to confirm social commonality.
While considering law Duguit confused with what it has to be compelled to be. He viewed that if the law doesn’t further promote social solidarity, that is a bit confusing.
THE PHILOSOPHICAL SCHOOLS OF LAW
- The Philosophical School considerations itself primarily with the relation of law to definite ideals that law is supposed to realize. It investigates the aim of law and therefore the measures and manner during which that purpose is consummated.
- As regards the relation between jurisprudence and ethics, the Philosophical School regards the perfection of human temperament as the final objective of law.
- Hugo Grotius is considered the father of Philosophical jurisprudence.
- Hugo Grotius, the celebrated father of law of International laws, in his book The Law of War and Peace, Grotius showed that a system of law is also derived from the social nature of man.
- The opinion of Grotius was that the agreement of humanity regarding certain rules of conduct is an indication that those rules originated for the right reason. Such general concordance is incontestable by pertaining to the vocalization of poets and philosophers, the theories of historians and men of letters and teachings of the civil law. During this means, he engineered up a system of law that ought to command universal respect by its own inherent ethical price.
(ii) IMMANUEL KANT
- Kant gave modern thinking a replacement basis that no sequent philosophy may ignore.
- Kant’s jurisprudence is entirely a theory of what the law has to be compelled to be.
- His theory is that the jurisprudence of a thinker, not an attorney.
- He was uncertain of the utility of a “State of Nation”. He saw no chance of international authority superior to the States.
(iii) HEGEL’S THEORY
- Hegel was the most influential thinker of Philosophical School. His system is a monistic one. The idea unfolds from the simple to the complex by means of the dialectical process.
- To quote him: “What is reasonable is real and what is real is reasonable.’’
- According to Hegel, both the State and law are the product of evolution. Legal institutions are within the sphere of legal, political and ethical institutions. They are the expression of the free human mind which wishes to embody itself in institutions.
- V.D. Mahajan’s Jurisprudence and Legal Theory ( Fifth Edition), Eastern Book Company.
Different School of Law
BY- Sonali Guha Roy | Osmania University College of Law, Hyderabad