CHAPTER - II

SALIENT FEATURES OF SOCIOLOGICAL SCHOOL OF

JURISPRUDENCE

In this chapter, the various important trends of sociological school are

elaborated. This school came into existence because some important
drawbacks and lacunae were noticed in the other schools of thought. Some
of the important aspects connected with other schools are briefly enunciated
and how they paved the way for the emergence of schools of sociological
school is emphasized in this chapter.

Threefold Classification: As observed by Salmond, "Jurisprudence, in

its specific sense as the theory or philosophy of law, is divisible into three
branches". This division of the schools of Jurisprudence is based upon the
fact that certain basic assumptions about law characterize the Jurists of each
school and distinguish them from those of other schools of juristic thought. A
comprehensive basis of classification is provided by the attitude of the jurists
towards certain basic relations of law, e.g., its relation to the State, its relation
to the society and its relation to certain ideals such as justice, freedom of will
or the pursuit of happiness. On this basis Jurisprudence is divisible into three
major schools.

1. ANALYTICAL SCHOOL: Imperative, Positive, Teleological, English or

Austinian School: The jurists of the Analytical School consider that the most
important aspect of law is its relation to the State. Law is treated as an
imperative or command emanating from the State. For this reason this school
is known as the Imperative School. The exponents of this school are
concerned neither with the past nor with the future of law but with law as it
exists, i.e., with law "as is" (Positus). For this reason this school is termed the
positive school. This school is dominant in England and so is popularly called
the English school. Its founder is John Austin who was the first occupant of
the chair of Jurisprudence in the University of London. Hence it is also known
as the Austinian School. The positive school takes for granted the developed
legal system and proceeds logically to analyse its basic concepts and classify
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them so as to bring out their relations to one another. This concentration on
the systematic analysis of legal concepts has given this school the name of

analytical school of jurisprudence.

2. HISTORICAL SCHOOL: Contrasted with Analytical School: The Historical

School attaches importance not to the relation of law to the State but to the
societal institutions in which law exhibits itself. Customs and habit patterns of
social groups loom large in the eyes of the historical jurist. While the
analytical school confines itself to mature legal systems, the historical school
concentrates its attention on the primitive legal institutions of society. To the
analytical jurist the typical law is an arbitrary State command, but to the

historical jurist the typical law is a customary rule spontaneously evolved by

historical necessity and popular practice.

Comparative School: The comparative method aims at the collection,

examination and collation of the notions, doctrines and institutions which are
found in various legal systems worthy of a comparative study. Its purpose is
to distinguish what is local or accidental or transient in legal doctrine from

what is general, essentia) and permanent.

The material at the disposal of comparative jurists is not very

extensive. A great many of the mature systems of law have been profoundly

influenced by and are in fact based upon the Roman law. The scope of the
comparative method thus becomes very limited indeed. As Viscount Bryce
observes: "In practice the comparative method becomes an examination of
Roman conceptions with the help of light from England in those departments
of English law which have been least influenced by Rome and of some
glimmers from the East and from the laws of ancient European people".
Comparative jurisprudence is thus only a broadened form of the older
historical jurisprudence.

Historical Jurisprudence distinguished from legal History: Legal

history is not synonymous with historical jurisprudence. Legal history sets
forth the historical process whereby a particular legal system has grown and
come to be what it is. Historical jurisprudence, on the other hand, is the
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history not of the legal system but of the first principles and basic concepts of
the legal system. Historical jurisprudence thus traces how the concepts of
property and of contract germinated and developed. The legal history, say, of
England, expounds how the law of property or of contracts was altered and
developed from time to time. There can be no doubt that legal history is the
store-house from which the historical jurist draws his conclusions. With the
aid of legal history, the historical jurist can demonstrate how the fundamental
notions lying at the basis of the legal system have evolved and trace
scientifically the history of the first principles of law.

3. PHILOSOPHICAL SCHOOL: Ethical School, Metaphysical School or Law

of Nature School: Attitude to law: The philosophical school concerns itself
chiefly with the relation of law to certain ideals which law is meant to achieve.
It investigates the purpose of law and the measure and manner in which that
purpose is fulfilled. The philosophical jurist regards law neither as the arbitrary
command of a ruler nor as the creation of historical necessity. To him law is
the product of human reason and its purpose is to elevate and ennoble
human personality.

Relation between Ethics and Jurisprudence: The philosophical school

regards the perfection of human personality as the ultimate objective of law.
The science of Ethics, which deals with the principles and moral
considerations affecting man's conduct and constituting his criterion of right
and wrong, also sets for itself the goal of making man virtuous and so attain
perfection. Since the ultimate objectives of jurisprudence and ethics are thus
coincident, philosophical jurists seek to differentiate between the subject-
matter of the two sister sciences.

Ethics does not rely upon Compulsion: The German philosopher

Immanuel Kant made a clear distinction between law and ethics. In "Lectures
on Ethics" Kant observes: "Ethics concerns itself with the laws of free action in
so far as we cannot be coerced to it, but the strict law concerns itself with free
action in so far as we can be compelled to it". Ethics is the science of virtue
while law belongs to the science of right. Ethics aims at the elevation of man's
inner life while law seeks the regulation of his external conduct. Organized
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society should not exercise compulsion to make man virtuous. Compulsion
should be confined to the regulation of man's external conduct. "Woe to the
political legislator", said Kant, "who aims In his Constitution to realize ethical
purposes by force, to produce virtuous intuition by legal compulsion. For in
this way he will not only effect the very opposite result, but will undermine and
endanger his political Constitution as well."

"The Common Ground of Law and Ethics": Salmond points out that
"philosophical jurisprudence is the common ground of moral and legal
philosophy of ethics and jurisprudence”. The justification for this statement
would be found when we examine the conclusions of philosophical
jurisprudence.

The philosophical school rivets its attention on the purpose of law and
the justification for coercive regulation of human conduct by means of legal
rules. Immanuel Kant has shown that the chief purpose of the law is the
provision of a field of free activity for the individual without interference by his
fellowmen. Law is the means by which the individual will is harmonized with
the general will of the community. Law achieves this harmony by delimiting
the sphere of permissible free activity of each individual. The individual will is
moulded by ethics in the path of virtue so that it may freely acquiesce in and
identify itself with the general will. Law sets to work in the opposite direction. It
moulds the general will so that it may accommodate itself to the free play of
individual will and so identify itself with the latter. There is thus a tendency for
ethics and law to overlap and ultimately to coincide in the highest stages of
their development.

The proximate object of jurisprudence is to secure liberty to the

individual and its ultimate object is the same as that of ethics, namely, the
attainment of human perfection. Liberty, being the perfect relation between
human beings, is an essential pre-requisite to the perfection of human
personality. In realizing its proximate object, therefore, jurisprudence becomes
a means towards the realization of its ultimate object which is the special
object of ethics also to achieve. Philosophical jurisprudence thus becomes the

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meeting-point and common ground of moral and legal philosophy-of ethics

and jurisprudence.

4. ENGLISH AND CONTINENTAL SCHOOLS OF JURISPRUDENCE:

Continental School is Metaphysical: The analytical school Is dominant in
England while the philosophical school is predominant on the Continent.
Salmond suggests that this peculiarity is traceable to the circumstance that
the term corresponding to "law" in Continental languages means not only law
but also right or justice. The German word Recht, the French word Droit and
the Italian word Diritto, each has this double signification. The connection
between law and justice is thus emphasized by the Continental nomenclature.
Continental jurists are therefore prone to attach a special importance to law in
its relation to certain higher ideals which it has to achieve. For this reason.
Continental jurists have developed philosophical jurisprudence.

The English School is Analytical: In England the existence of

different words for law and justice tends to conceal the relation between the
two. English jurists are accordingly prone to formulate a theory of law which
does not concern itself with justice. They avoid metaphysical speculation
confining themselves to the basic concepts of mature legal systems and the
law that is rather than speculating upon law as it ought to be. The analytical
method is well suited for this purpose and so English jurisprudence largely
assumes the analytical form.

The analytical method provides us with a systematic legal terminology

by its concentration on definitions and classifications. This in itself is great
service to legal science. One can easily see that nothing but confusion would
be the result if like Humpty Dumpty in Alice in Wonderland the legist reserves
to himself the right to give words whatever meaning he chooses. An agreed
terminology is a basic necessity if legal controversy is to be conducted to any
useful purpose.

The results of the analytical method are thus most useful to the legal
practitioner, for controversy is the very breath of his nostrils. It is no wonder;
therefore, that this method should find a congenial soil in England were
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lawyers and professionally trained judges are the most powerful contributors
to the development of the legal system. Further, the British, being the most
practical people, avoided the shadowy abstractions of the metaphysical
method and adopted the analytical method as the determinant method of
jurisprudence.

5. POSITIVISM: The law may be dealt with in jurisprudence either by taking it

as it actually is (Positus as is) or by contemplating what an ideal law should
be like. For a long time in the course of evolution of jurisprudence the actual
law was ignored and the ideal law was pursued. In this way the Natural Law
School came into being and there was a tendency to derive legal systems by
a priori methods. The a priori method is the method of the Philosophical
School. It does not investigate the actual facts or any existing legal system
and proceeds to theorise about law on the basis of postulates and
assumptions as to human nature. Positivism was a movement against tills a
priori tendency in jurisprudence. Austin has been considered as the founder
of English positivism. Recently in 1945 a work of Bentham came to Ilght-The
Limits of Jurisprudence Defined. From this work it may be concluded that the
founder of analytical positivism is Bentham and not Austin.

The theories associated with analytical positivism are the famous

Austinian theory of Imperative law and of indivisible and unlimited
sovereignty. These theories have been considered earlier. Kelsen's Pure
Theories may be regarded as a typical positivist contribution. The theory
attempts to banish from the sphere of law considerations of aesthetics,
political history and other social disciplines for maintaining the purity of its
conclusions. We have dealt with this theory in a later chapter.

The method of positivism has also been pursued by the historical

school. The historical school also developed by way of reaction to the Law of
Nature School. Professor Thiobault, a German jurist, put forward a proposal
in 1814 for the codification of German law on the lines of the French Code
Napoleon. He put forward this proposal under the influence of the dominant
Law of Nature School which considered it possible to erect a legal system
without taking any note of its historical antecedents. Savigny, another
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German jurist, opposed this proposal in an article entitled "The vocation of our

age for legislation and Jurisprudence". He maintained that a legal system is

the product of the volkgeist or the spirit of a people. Any attempt to foist a
code upon Germany copied from the Code Napoleon would be an outrage
since it would completely ignore the lines of evolution of Germanic law.

Historical research into the legal institutions thus assumed great importance.
In England Sir Henry Maine carried this method beyond the confines of
civilized societies by drawing attention to the nature of law and legal

institutions in primitive societies. He added the anthropological dimension to

historical research in relation to law. Historical jurisprudence thus becomes

the history of various legal institutions, such as property, contract, wills,
family, inheritance, crimes and so on. This anthropological approach has
shown how societies have hitherto progressed from status to contract, how
the penal law of early societies is the law of torts rather than the law of
crimes, how testamentary power is a fruit of feudalism and so on. The
approach of the historical school is also positivistic and so its work may be
described as historical positivism to distinguish it from analytical positivism

described above.

6. JURISTS OF THE PHILOSOPHICAL SCHOOL: Hugo Grotius (1583-

1645) : The celebrated Hollander, Hugo Grotius is regarded as the father of
philosophical jurisprudence. In De Jure Belli et Pads (The law of war and
peace), which earned him the lasting reverence of posterity, Grotius shows
that a system of Natural Law may be derived from the social nature of man.
Natural law he defines as "the 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". Grotius considers that the
agreement of mankind concerning certain rules of conduct is an indication that
such rules originated in right reason. Such general concordance he
demonstrates by referring to the utterances of poets and philosophers, the
pronouncements of historians and men of letters and the teaching of the
Roman law. In this way he builds up a system of Natural Law that should
command universal respect by its own inherent moral worth.

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Immanuel Kant (1724-1804) : The philosophical or meta-physical method

was systematically developed by Immanuel Kant. This German philosopher

made a dear distinction between law and ethics. In "Lectures on Ethics" Kant

observes: "Ethics concerns itself with the laws of free action in so far as we
cannot be coerced to it, but the strict law concerns itself with fee action in so
far as we can be compelled to it". Ethics is the science of virtue while law
belongs to the science of right. Ethics aims at the elevation of man's inner life

while law seeks the regulation of his external conduct. Organised sodety
should not exercise compulsion to make man virtuous. Compulsion should be
confined to the regulation of man's external conduct. "Woe to the political

legislator", said Kant, "who aims in his Constitution to realize ethical purposes
by force, to produce virtuous intuition by legal compulsion. For in this way he
will not only effed the very opposite result, but will undermine and endanger

his political Constitution as well".

According to Kant it is possible to deduce a single universal practical

prindple of law from which all laws may be derived. The distinctive feature of
man is his ability to will, i.e., his capacity to reach a free decision. The
principle that determines the will is called by Kant 'an imperative’. Imperatives
are of two kinds: the hypothetical imperative which presents the necessity of

an act as a means towards a desired end, and the categorical imperative

which presents an act as of itself objectively necessary without reference to
any ulterior end. It is the categorical imperative that should govern the human
will and it proceeds from the conception that a person should so act that his
rule of conduct, not having any ulterior ends, permits him to desire that it may
become a universal law. This universal law, as Kant points out in his
'Philosophy of Law’, may be expressed thus; "Act externally in such a manner
that the free exercise of thy will may be able to co-exist with the freedom of all
others". It follows from this that law is the "sum total of the conditions under
which the personal wishes of man can be reconciled with the personal wishes
of another man, in accordance with a general law of freedom". The
justification of law and coercive regulation is the provision of a field of free
activity for the individual without external interference. The basis of its

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authority is to be sought in the intrinsic force of the Just rule as binding upon a

moral entity.

Hegel (1770-1831): The Kantian doctrine of freedom of will as being

the end of law was elaborated by Hegel. According to this German
philosopher the human spirit achieves cognition of its personality once it
transcends the stage of mere physical sensation. Having awakened to the

knowledge of itself as the free Ego, it proceeds to assert itself. It thus comes
into conflict with other egos. The purpose of the legal order is to produce a

synthesis of the conflicting egos in society by attuning the self-consciousness

of each to that of the others and so merge the self-centred consciousness of
each ego in the universal consciousness. This purpose is achieved by the
recognition of the freedom of the ego, limited only by the like freedom of other
egos. Legal right is the objective realisation of such recognition by the
universal will and aims at securing to each individual an external sphere of
freedom, that is, of free activity as regards his person and property.

Hegel's great contribution to philosophical jurisprudence is the

development of the idea of Evolution. In his view all the various manifestations
of social life, including law, are the product of an evolutionary, dynamic
process. This process takes on a dialectical form, revealing itself in thesis,
antithesis, and synthesis. The human spirit sets a thesis which becomes
current as the leading idea of a particular historical epoch. In due course
against this thesis an anti-thesis is set up and from the ensuing conflict a
synthesis develops which, absorbing elements of both, reconciles them on a
higher plane. This process repeats itself time and again in history.

In 'Philosophy of Right and Law1 Hegel demonstrates that behind the

colourful pageant of history is one pervading idea, the idea of freedom.
History is the march of the spirit of freedom. Legal history is the march of
freedom in civil relations. Ecclesiastical bondage has given way to temporal
freedom; tyrannical rule has given way to freedom of legal government and
economic enslavement of the citizen has given way to economic freedom.
Thus society may change and has always changed, but in the adaptation of
the law to changing society, the changes in law are governed by an
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ascertainable dialectic, the evolution of the grand idea of freedom. It is to this

idea which is realising itself in history that ail law should conform. By
conformance to this idea the purpose of the legal order would be fulfilled, the

purpose, that is to say, of raising humanity to perfection.

Fall of the Philosophical School: The view of the philosophical

school that the principles of law can be found by the exercise of reason and
may be stated with certainty and definiteness led towards the close of the
eighteenth century to the belief that a perfect code of laws could be
constructed by jurists by an effort of reason unaided by historical legal
materials. A German Professor of Civil Law, Thibaut (1771-1840) put forward
a proposal for the preparation of a code of laws for the Germans on the model
of the Code Napoleon. This proposal was vigorously opposed by Savigny who
published in 1814 his 'Yom Beruf - The vocation of our age for legislation and
jurisprudence' assailing the view that law could be made consciously by
human reason embodied in legislation and giving currency to the theory that
law is the product of a people's genius unfolding itself in history and
expressing itself in custom or popular practice. Savigny thus founded the
historical school which put an end to the dominance of the Philosophical or

Law of Nature School in juridical science.

7. JURISTS OF THE HISTORICAL SCHOOL: Savigny (1779-1861) :

Savigny is regarded as the founder of the historical school. His ideas,

however, has been to some extent anticipated by Gustav Hugo (1768-1844)

who put forward the view that the law of a people like its language and
manners forms and develops by itself. It evolves without the aid of
enactments and prescriptions of political authority, much as the rules of the
well-known games of a people are formed. These latter rules establish
themselves gradually by the successive resolution of doubtful questions in
particular cases. Law is formed by a similar process.

Savigny, the greatest jurist of the nineteenth century, confuted for the
first time in a scientific manner the hypothesis of natural law. He showed that
law is not formed by nature and is not discoverable by pure reason. Law is
the product of the Volkgeist, the national spirit or genius of the people. The
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content of a legal system Is thus determined not by reason at all, but by the

qualities of the people by whom it is developed. Savigny was not oblivious to

the fact that the development of law is largely carried on by professionally

trained Jurists, but this he explains by regarding legal experts as the
representatives of the people. "The foundation of the law", says Savigny, "has
its existence, its reality in the common consciousness of the people. We

become acquainted with it as it manifests itself in external acts, as it appears

in practice, manners and customs. Custom is the sign of positive law.... When

in course of time law is developed in its details, it can no more be mastered

by the people generally. A separate class of legal experts is formed, which,

itself an element of the people, represents the community in this domain of

thought."

Savigny was himself trained under the powerful influence of the

philosophical school. His own definition of law is remarkable for its
resemblance to the Kantian definition. For him, as also to the ethical school of
jurists, law is "the rule whereby the invisible border-line is fixed within which
the being and activity of each individual obtains a secure and free space”. His
divergence from the philosophical school, however, is with reference to the
true nature of law and the source from which it proceeds. While the
philosophical school conceived of law as originating in man's reason and
having its authority in its ethical or moral basis, Savigny sees law as a
spontaneous evolution of the national spirit, having its justification in the
social pressure behind it or in historic necessity.

Sir Henry Maine (1822-1888): The honour of being the founder of the
historic-comparative school of jurisprudence in England belongs undoubtedly
to Sir Henry Maine. This savant of legal science became Regius Professor of
Civil Law in the University of Cambridge at the remarkably early age of
twenty-five. He was Law Member in the Council of the Governor-General of
India between 1861 and 1869 and had an opportunity of observing at first
hand and studying Indian conditions. His knowledge of Indian legal
institutions was a great asset to him as a student of comparative
jurisprudence.

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 Maine occupied the chair of historical and comparative jurisprudence in
Corpus Christian College, Oxford from 1869 to 1877. Thereafter he held the

position of master of Trinity Hall, Cambridge, In 1884 he was appointed

Whewell Professor of International Law at Cambridge. He held the position for

a year and dial later in 1888.

His works: The first published work of Maine is ’Ancient Law1 (1861)

which is practically a manifesto of his life-work. In it he stated his broadest

general doctrines. The more important of his later works-Village Communities
(1871), Early History of Institutions (1875), Dissertations on Early Law and
Custom (1883)-follow out in greater detail and with more scientific elaboration
the general principles formulated in 'Ancient Law1 at the outset of his

scholastic career.

Leading Ideas: The leading ideas of Sir Henry Maine are divisible into
three groups. The first relates to the origin, sources and development of law
in general. Maine shows that at its origin, law is entangled with religion and
traces its development as follows: first, personal commands and Judicial
decisions or themistes giving rise to patriarchal rules, then customary law
expounded by priestly aristocracies; thirdly, the fixation of customs in codes in
order that the law may be known to the people; next, the gradual modification
of this archaic written law by the help of fiction, equity and legislation; later on,

the rise of philosophic theories with the spread of international intercourse

and ultimately the advent of scientific jurisprudence.

The second group of ideas familiarized by Maine is concerned with the

origin and development of society. Maine subscribes to the Patriarchal Theory
of Society. The evidence furnished by ancient law leads him to the conclusion
that the primal unit of society was the Family and not the Individual as in
modem society. This family was organised on the patriarchal model presided
over by the oldest living male ascendant. "The aggregation of Families forms
the Gens or House. The aggregation of Houses makes the Tribe. The
aggregation of Tribes constitutes the Commonwealth."

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 The third group of ideas developed by Maine is in connection with
private law. Maine has given us illuminating studies of the evolution of the law

of wills and succession, of the institutions of Private Property and Contract.

The most conspicuous feature of Maine's work is the breadth and

brilliance of his generalizations made on the basis of a comparative estimate
of legal institutions in various societies at different levels of historic
development. His work abounds in such broad generalizations as that' 'the
penal law of ancient communities is not the law of Crimes but the Law of

Torts"; that "the positive duty resulting from one man's reliance on the word of
another is among the slowest conquests of advancing civilization"; and that

"the movement of progressive societies has hitherto been a movement from

status to contract".
Not one of the theories associated with the name of Maine has passed
without challenge. The researches of scholars of comparative jurisprudence,
have revealed that his doctrines require modification and qualification in
various directions. None can impugn, however, the originality of his
methodology. As Sir Frederic Pollock says in his 'Introduction to Maine's
Ancient Law1: "We may till the fields that the master left untouched, and one
man will bring a better ox to yoke to the plough and another a worse; but it is
the master's plough still.'

The achievement of the historical school consisted in over-throwing the

dominant rationalist tendency in Jurisprudence and substituting in its place an
empirical tendency. This latter tendency was also fostered by the analytical
school of jurisprudence which, however, had nothing in common with the
historical school.

8. JURISTS OF THE ANALYTICAL SCHOOL: Bentham (1748-1832):

Jereme Bentham was the forerunner of the analytical method in England. He
was decidedly averse to Natural Law and metaphysical-historical
jurisprudence. He believed that law was made up of individual laws which are
commands of the supreme power in a politically organized society. What
distinguishes him from the genuine analytical jurist, however, is his faith in the
existence of a higher principle by which legal rules may be tested. This
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superior principle he found in the principle of utility. In 'Introduction to the
Principles of Morals and Legislation' Bentham explains this principle of utility

as "that principle which approves of every action whatsoever according to the

tendency which it appears to have to augment or diminish the happiness of
the party whose interest is in question'^. By his philosophy of individualist
utilitarianism Bentham furnished us with a measuring rod by which laws may
be tested. He was the great pioneer of the field of legislation and exercised a
powerful influence on John Austin, the founder of the English or analytical
school of jurisprudence.

John Austin (1790-1859): John Austin was the first lecturer in

Jurisprudence in the University of London. His 'Province of Jurisprudence
determined’ was published in 1832. Under the name of 'Lectures on
Jurisprudence' his writings were posthumously published by his widow.

Law for Austin consists of "commands set as general rules of conduct,

by a sovereign to a member or members of the independent political society
wherein the author of the law Is supreme". It is clear that unlike the historical
school, the analytical school regards law as an arbitrary creation. It sees the
sanction or authority of law neither in its ethical basis nor in its historical
background but in its enforcement by State authority. The typical law for it is a
State command or statute.

The leading exponents of the Analytical School in England are Sir

William Markby, Sheldon Amos, Sir Thomas Holland, and Sir John Salmond.
Sir William Markby (1829-1914) was judge of the Calcutta High Court (1866
1878) and his 'Elements of Law1 was published in 1871. Amos (1835-1886)
was a judge of the Court of Appeal in Egypt and published his' Science of
Law1 in 1874. Holland (1835-1926) published his 'Elements of Jurisprudence'
in 1880. Sir John Salmond (1862-1924) was a judge of the Supreme Court of
New Zealand and his great work 'Jurisprudence or Theory of Law1 was
published in 1902. The works of these authors are justly regarded as
standard works on Analytical Jurisprudence.

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 The analytical school is represented in America by Prof. Gray, Hohfeld
and Kocourck and on the Continent, by Bierling, Kelsen, Korkunov and

others.

The defects of the analytical method are obvious enough. It restricts

itself to tiie facts of mature legal systems and treats of law as it is. It must be
admitted, however, that very often it is not safe to disregard what the Law has
been In the past. It is only by the light of history that we can truly understand
and judge legal institutions now existing. This truth was decisively grasped by

the historical school. The influence of the analytical school waned in the
period of the ascendancy of the historical school, but the latter too lost its hold
on the world of thought by becoming fatalistic, insisting too much on the
unconscious growth of law and repudiating the element of purposeful effort as
a factor in legal evolution. This led to the development of Sociological
Jurisprudence in the present century.

Latest trends in jurisprudence: The present century is characterised by the

tendency towards unification of the various schools of Jurisprudence.

1. RENAISSANCE OF PHILOSOPHIC IDEALISM; There has been a

revaluation of the cardinal tenets of the philosophical school in the light of the
criticisms of the historical jurists. The chief defect of its thought lay in the
assumption of an ideal, immutable law or natural law, discoverable by reason,
to' which actual systems of law should correspond. The historical school
sufficiently demonstrated the untenability of this assumption. The view of the
philosophical school has now undergone a radical change and this is shown
in the work of Kohler and Stammler.

Kohler (1849-1919) : Kohler stood directly in the tradition and under

the influence of the Hegelians. His definition of law as "the standard of
conduct which in consequence of the inner impulse that urges men towards a
reasonable form of life, emanates from the whole, and is forced upon the
individual" stamps him as a neo-Hegelian.

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 In 'Philosophy of Law*1 Kohler postulates the promotion and vltall sing of

culture as the end achieved through the instrumentality of law. But culture he
means the totality of humanity's achievement Kohler points out that the
assumption of a Law of Nature, a permanent law suitable to all times, is
fallacious since it involves the notion that the world has already attained the
final aim of culture. In actual fact civilisation is changing and progressing and

law has to adapt itself to the constantly advancing culture. Every culture
should thus have its own postulates of law to be utilised by society according
to requirements. While there is no doubt a universal idea of civilization, there
is no eternal law or universal body of legal institutions, suitable for all

civilizations. What is good for one stage of culture would be ruinous to

another.

An eminent American jurist, Dean Pound, considers that Kohler's

"formation of the jural postulates of the time and place is one of the most
important achievements of recent legal science1". The natural law of the

philosophical school loses its rigidity and becomes charged with a changing
or growing content being conceived as something relative and not as
something that shall stand for ever.

Stammler (1856-1938): Stammler is a neo-Kantian and his

philosophical position is summed up in The Theory of Justice'. He frankly
admits that "there is not a single rule of law the positive content of which can
be fixed a priori"2. He emphasises, however, the need for the development of

a theory of just law in addition to the investigation of positive law. In this view
the content of a given law can be tested with reference to the theory of 'just
law*.

A law, in the view of Stammler, is just if it conforms to the Social Ideal,

that is, if it brings about a harmony between the purposes of the individual
and those of society. The Social Ideal is "a community of men willing freely"
and represents the union of individual purposes. It requires, first, the
11
■ *.......... "

1 Pound: Interpretations of Legal History, p. 150

2 Stammler: Theory of Justice, p. 90

73
maintenance of the proper interests of every associate and, second" the

maintenance of social co-operation. The first requirement leads to two

principles which Stammler expresses thus: "(1) The content of a volition must
not be left to the arbitrary control of another. (2) A juristic claim must not
subsist except on the condition that the one bound may still remain his own
neighbour", that is, may be an end in himself. These formulae prevent a
juristic precept from sacrificing all, associate to the subjective purposes of
another and being treated as a means to the accomplishment of the purposes

of that other party. The second requirement, namely, that of social co­
operation also leads to two principles: "(1) He who is juristically united with
others cannot be arbitrarily excluded from the community. (2) A power of

disposition juristically granted cannot be exclusive except in the sense that

the one excluded may still remain his own neighbour". Stammler developed
the application of these principles to the important spheres of juristic life under
the section-' The Practice of Just Law".

Having presented his 'Social Ideal' Stammler admits, and this is

important, that two legal systems which have very different rules and
principles of law may both be in conformity with the Social Ideal. It is clear
that his conception of the Social Ideal gives us once more Natural Law with a
changing content.

The historical jurists for their part have now recognised the soundness
of the main contentions of the philosophical school. Bruns (1816-1880)
declared that the emphasis laid by the philosophical school upon the human
and universal character of law led to the development of a purer legal
philosophy, "which no longer regards as its task the discovery of an absolute
law of nature, but only seeks to recognise in their universality and necessity,
the general conceptions and ideas which attain concrete historical
manifestation in the single national system of law" Gnelst (1816-1895) who
regarded himself as a follower of Savigny also came to the conclusion that a
fuller development of legal science could be attained only by taking up again
the natural law doctrines of the past, and giving them further development.
Indeed, as Windscheid (1817-1892) pointed out, the antithesis of the
74
philosophical and historical schools has disappeared by each recognising the

correctness of the main contention of the other side.

2. NEO-AUSTINIANISM; In the analytical school also there is a discernible

tendency towards accommodation of its point of view to those of the other
schools. The chief defect in the conclusions of the analytical school lay in
ignoring the social aspects of law and its ethical basis and emphasising the
capacity for its coercive enforcement and its enunciation by sovereign political

authority. While the historical school regarded custom as the very type of law,
the Austinians denied entirely the claim of customary law to be recognised as
law strictusensu. International Law, the existence and binding efficacy of
which Grotius took great pains to establish, is relegated by the Austinians to
the category of positive morality.

Prof. Robson in 'Civilisation and the Growth of Law1 has deplored the
fact that' 'English legal thought since Bentham has run in narrow grooves,

remaining crabbed and 'practical' in the worst sense of the word,

unimaginative and devoid of any philosophical, ethical or sociological
background. It is scarcely too much to say that jurisprudence hardly exists in
Great Britain. Philosophy and law are barely on speaking terms, while
sociology and law are strangers who have never even met”3.

The Neo-Austinian School in England has shown itself responsive to

the criticisms of the other schools of juristic thought. Jethrow Brown has
recast the Austinian definition of law as follows: "Law is an expression of the
general will affirming an order which will be enforced by the organised might
of the State and directed to the realisation of some real or imaginary good”4.

The admission that law is not a mere State command and that it proceeds
from the 'general will' coupled with the recognition of the fact that law
discharges a social function by the 'realisation of some good' shows an
unmistakable attempt to supply the missing ethical element in Austin’s
conception of law. Sir John Salmond recognises customary law as a legal

3 Robson: Civilisation and the Growth of Law, p. 254

4 Jethrow Brown: Austinian Theory of Law: Excursus, p. 354.

75
material source of law and so entitled to be regarded as law in the strict sense
of the term. International Law too in Salmond’s opinion is not mere positive

morality but a species of Conventional Law.

While the English analytical school of'jurists are appreciating the

importance of the ethical aspects of law, the Continental jurists are realising
that coercive force is also an essential element in the conception of law.
Ihering says: "A legal rule without coercion is a fire which does not bum, a
light that does not shine"5. He considers International Law to be only an

incomplete form of law.

3. SOCIOLOGICAL SCHOOL: The unification of the schools of jurisprudence

has given rise to the Sociological School. The sociological jurists look upon
law as a social phenomenon. Law is a social function, an expression of

human society concerning the external relations of its individual members.

The jurist should concentrate his attention not so much on individuals and

their abstract rights as ’willing agents' as on the social purposes and interests
served by law.
/

The sociological method necessarily undertakes the widest possible

range of investigation of the facts and laws of social groups, ancient as well
as modem, irrespective of the degree of civilisation which they have reached,
so as to secure a sounder scientific theory of juridical institutions than has yet
been attained.

Montesquieu (1689-1755): The French philosopher Montesquieu is

the forerunner of the sociological method in jurisprudence. He was the first to
recognise and take account of the influence of social conditions on the legal
process. In The Spirit of Laws' he declared that laws should be determined by
a nation's characteristics so that "they should be in relation to the climate of
each country, to the quality of each soil, to its situation and extent, to the
principal occupations of the natives, whether husbandmen, huntsmen, or
shepherds: they should have relation to the degree of liberty which the

5 Ihering: Law as Means to an End, p. 241

76
constitution will bear, to the religion of the inhabitants, to their inclinations,

riches, numbers, commerce, manners and customs". This is a clear statement

of the sociological conception of law.

August Comte (1798-1857): The honour of being the founder of the

science of Sociology belongs to another French philosopher August Comte.
The legitimate object of scientific study, according to Comte, is society itself

and not any particular institution of government. He stressed the fact that men
have ever been associated in groups and that it was in the social group and
not in isolated individuals that the impulses originated which culminated in the
establishment of law and government. He definitely rejected the view that
society rests upon an individualistic basis and that the individual is the focal
point of law. His philosophy is thus in sharp contrast to the mechanistic

philosophy current before his time.

Herbert Spencer (1820-1903): The most distinguished of English

sociologists is Herbert Spencer. By calling to aid ethnographical and
anthropological material he demonstrated that societies resemble individual
organisms. Originating in small beginnings they develop complex structures
the component parts of which become more and more interdependent while
the social organism itself becomes more and more independent of its
constituent units.

In ’Principles of Sociology1 Spencer traces his theory of the origin of

law. He shows that law arises from four sources, namely, inherited usages
with quasi-religious sanctions, injunctions of deceased leaders, the will of the
predominant man and collective opinion of the community. Laws of
supposedly divine origin are first differentiated from laws of recognised human
origin. Human lam become further differentiated into those which are
sanctioned by the ruler and those which are sanctioned by the aggregate of
social interests and of .these the latter, in the course of social evolution, tend
more and more to absorb the former. Ultimately it would be recognised that
"law will have no other justification than that gained by it as a maintainer of the
conditions to complete life in the associated State".

77
 Ihering (1818-1898): The German jurist, Rudolf Von Ihering was born
in 1818 at Aurich in East Friesland. He became a teacher of Roman law and
published his magnum opus from 1852 to 1865 in four volumes under the title
"The spirit of the Roman law in the various stages of its development". This
publication brought him recognition and was translated into the principal
European languages. In 1867 Ihering became Professor in the University of
Vienna. The distractions of that metropolis interfered with his academic work
and so he left Vienna and joined the Gottingen University where he spent the
last two decades of his life in pioneering a new school of jurisprudential
thought.

Until Ihering's time law was regarded as a system of delimiting abstract

rights. From juristic texts concepts were derived by a process of interpretation.
By a process of logical deduction one legal principle was derived from
another. This idea of analysis and combination of legal principles was
dominant in jurisprudence, it was against this conceptual jurisprudence that
Ihering delivered his attacks. In The Struggle for Law published in 1872,
Ihering developed the thesis that the origin of law is to be found in social
struggles. The birth of law", he declared, "like that of men has been uniformly
attended by the violent throes of childbirth". In Law as a Means to an End, the
first volume of which appeared in 1877, Ihering showed that law is a system of
reconciling conflicting interests. "Purpose", he said, "is the creator of the entire
law". Referring to the philosophical school, he observed: "You might as well
hope to move a loaded wagon from its place by means of a lecture on the
theory of motion as the human will by means of the categorical imperative.
The real force which moves the human will is interest". The doctrine of foe
historical school that law evolves spontaneously like language was assailed
by Ihering. He observes pungently that according to the historical school, the
Roman law of debtor slavery grew in the same way as "the grammatical rule
that cum governs the ablative".

Ihering inspired the sociological school of Jurisprudence. One of his

disciples, the Russian Prince Leo Gallitizin, referred to Ihering as the
Prometheus who had brought the light of jurisprudence to mankind. Ihering's
call for the creation of a "living law” was taken up by his disciple Eugen
78
Ehrlich. Earnest Fuchs, leader of the Gepnan free-law school, who stood for
the principle of allowing absolute freedom to judges to decide, untrammeled

by rules of law, according to their social intuitions, derived his inspiration from
Ihering. The American School of Sociological Jurisprudence was also greatly

influenced by the work of Ihering.

Eugen Ehrlich (1862-1922); Ehrlich was bom in 1862 at Czernowitz in

the duchy of Bukowina, which was then part of the Austro-Hungarian Empire.
He became professor of Roman law at the University of Czernowitz. Like
Savigny, Ehrlich believed that law evolves spontaneously. In his Sociology of

Law Ehrlich observes: "The great mass of law-arises immediately in society

itself in the form of a spontaneous ordering of social relations, of marriage, the
family associations, possession, contracts, succession......."e. He differs,

however, with Savigny in one vital respect. In Savigny's view law is tied to the
primitive consciousness of the people. Ehrlich, on the other hand, locates law
in the present-day institutions of the society. The fundamental arrangements
of society are governed by the basic institutions of the social order, such as
marriage, domestic relations, inheritance, possession, contract etc. While
legal provisions are addressed to courts and administrative officials, there is a
living law which dominates life even though it may not have been formulated
as legal propositions. Ehrlich attached great importance to the study of this
living law. "The source of our knowledge of this law", he declared, "is, first, the
modem legal document: secondly, direct observation of life, of commerce, of
customs and usages, and of all associations, not only of those that the law
has recognized but also of those that it has overlooked and passed by, indeed
even of those it has disapproved"6
7. This is a truly sociological approach to the

problem. One may dispute the appropriateness of Ehrlich's application of the

term law or "living law" to describe the extra-legal controls actually in vogue
for the regulation of social relationships. It must, however, be admitted that
the sociological method of inquiry insisted upon by Ehrlich is a significant
contribution to juristic thought.

6 Ehrlich; Sociology of Law, Trans, by Nathan Isaacs, p. 138

7 Ehrlich: Fundamental Principles of the Sociology of Law, p. 493

79
 Leon Duguit (1859-1928): In recent times the French jurist Duguit has
made a realistic and sociological approach to juridical problems. He rejects
the classical theories of analytical jurisprudence as to the nature of law and
completely repudiates the notion of sovereignty. In 'Law in the Modern State',
he observes' 'The idea of public service replaces the idea of sovereignty. The
State is no longer a sovereign power issuing its commands. It is a group of
individuals who must use the force they possess to supply the public need.
The idea of public service lies at the very base of the theory of the modem
State. No other notion takes its root so profoundly in the facte of social life"8.

In Duguifs view law is the inevitable consequence of social solidarity.

Man cannot Jive in isolation and has to associate with his fellows in a social
organization. Laws are the expressions of the discipline of society in regard to
its members. So, "to speak of a norm as obligatory in a juridical sense means
simply that at a given moment. If this norm is violated the bulk of the people
feels that it is just according to the feeling for justice that it forms for itself at
this moment, that it (the norm) is necessary for the maintenance of social
solidarity, that what there is of conscious force in the group intervenes to
repress this violation".
An order issued by the governmental organization in this view, has no
inherent or intrinsic claim to obedience. It has to conform to a criterion of
justice. This criterion Duguit finds in his conception of social solidarity. Like
Kohler's concept of a Natural Law with growing content, and Stamrnler's
Social Ideal, Duguit's conception of social solidarity is meant to answer the
insistent demand in recent times, owing to the transfer of interest from
individuals to society, that jurisprudence should evolve a technique for the
evaluation of positive law.

Roscoe Pound (1870-1964): The American jurist Roscoe Pound was

bom in Lincoln, Nebraska. He was devoted to classics and botany in his
youth. In 1901 he was appointed as an auxiliary Judge of the Supreme Court

8 Duguit: Law in the Modem State, (Trans. Frida and Harold Laski, p.
XLVI)

so
of Nebraska. In 1903 he became Dean of the Law School of the University of
Nebraska. He was Dean and Carter Professor of Jurisprudence at Harvard
University from 1916 to 1936. It was from Harvard that he published a series
of articles on Sociological Jurisprudence.
Among the advocates of the sociological method, the name of Roscoe
Pound stands pre-eminent. He, more than any other in recent times, is
responsible for the growth of the functional attitude in juridical science, the
attitude of looking to the working of law rather than to its abstract content, and
regarding law as a social institution which it should be our endeavour to
improve by conscious and intelligent effort along lines which jurists shall
determine as the most efficacious for achieving the ends and purposes to be
served. In "Interpretations of Legal History", he observes: "Law is the body of
knowledge and experience with the aid of which a large part of social
engineering is carried on. It is more than a body of rules. It has conceptions
and standards for conduct and for decision, but it has also doctrines and'
modes of professional thought and professional rules of art by which file
precepts for conduct and decision are applied and developed and given
effect. Like an engineer's formulae, they represent experience, scientific
formulations of experience and logical development of the formulations, but
also inventive skill in conceiving new devices and formulating their
requirements by means of a developed technique".

Jurisprudence thus becomes a science of social engineering which is

concerned with that part of the field of social relations that is capable of
regulation by the action of the politically organized society. For facilitating the
tasks of social engineering. Pound classified the various Interests which are to
be protected by the law under three heads: Private interests, Public interests
and Social interests.

The Private interests to be protected by the law are :(a) The individual's
interests of personality: These include his physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by the
Criminal Law, Law of Torts, Law of Contracts and by limitations upon the
powers of Government to interfere in the matter of belief and opinion, (b)
Individual's interest in domestic relations: These include marriage, relations of
81
husband and wife, parents and children, and claims to maintenance, (c)

Interests of substance: These include proprietary rights, inheritance and

testamentary succession, and occupational freedom. The principal public
interests are: (i) interests in the preservation of the State as such and (li)

interests of the State as the guardian of social interests.

The Social interests which Pound considers to be deserving of legal

protection are: (a) Interest in the preservation of peace and order and
maintaining general security, (b) Interest in preserving social institutions like
marriage and religious institutions, (c) Interest in preserving general morals by
counteracting corruption, discouraging gambling and invalidating transactions
repugnant to current morality, (d) Interest in conserving social resources, (e)

Interest in general progress which is to be achieved by freedom of education,

freedom of speech and expression, freedom of property, trade and of
commerce and if) Interest in the promotion of human personality.

The problem which juridical science has to face is the evaluation and
balancing of these interests. For facilitating this process, Pound has provided
what he calls the Jural postulates of civilised society. In 1919 he summarised
these postulates as follows: Every individual in civilized society must be able
to take it for granted that,

(i) he can appropriate for his own use what he has created by his own labour,
and what he has acquired under the existing economic order;
(ii) that others will not commit any intentional aggression upon him;

(iii) that others will act with due care and will not cast upon him an
unreasonable risk of injury;

(iv) that the people with whom he deals will carry out their undertakings and
act In good faith;

In 1942 Pound added to this list three more postulates, namely,

(v) that he will have security as a job-holder;
(vi) that society will bear the burden of supporting him when he becomes
aged;

82
(vii) that society as a whole will bear the risk of unforeseen misfortunes such

as disablement.

The jural postulates are to be applied both by the legislators and by the
judges for evaluating and balancing and various interests and harmonising
them. Justice Cardozo observes: "If you ask how he is to know when one
interest outweighs another. I can only answer that he must get his knowledge
from experience and study and reflection; in brief from life itself. This may be
regarded as the sum and substance of the line of approach of the sociological

school to juridical phenomena.

Functional School: The fundamental tenet of the sociological school

is that we cannot understand what a thing is unless we study what it does.
Law in action may be very different from law in books. The jurist should and is

thus expected to study the actual functioning of legal institutions and

endeavour to make legal rules really effective for the purpose for which they
were designed. For this reason the sociological schools referred to by Paton
in his work on 'Jurisprudence1 as the functional school.

GERMAN SCHOOL OF “JURISPRUDENCE OF INTERESTS": A German

school of jurists, known as the "Jurisprudence of Interests" has made a
distinctive contribution to sociological jurisprudence. This school took up for
development certain ideas about law which became current as a result of the
work of the German sociological jurist, Rudolph Von Ihering. While writing the
third volume of his great treatise, "The spirit of the Roman Law", Ihering
discovered that a legal right was really a legally protected interest of the
bearer of the right. From this Ihering concluded that there is a sociological
purpose behind every rule of law. Law is not a spontaneous evolution, not is it
an arbitrary State product. It is not based upon reason but is the product of
expediency, being fashioned to harmonize and reconcile conflicting interests
in society.

Elaborating this idea Philipp Heck, the leader of the school of

"Jurisprudence of Interests" observes: "The fundamental truth from which we
must proceed is that each command- of the law determines of conflict of

83
Interests; It originates from a struggle between opposing interests, and
represents as it were the resultant of these opposing forces".

The purpose of the social order is the protection of human interests.

Since the interests of some men in society conflict with those of others and
law cannot protect all of them, the function of law is to appraise such interests
and select some for its protection. The American Jurists have elaborated this
functional aspect.

REALIST SCHOOL OF AMERICA: In America. Sociological

Jurisprudence has developed an extreme wing under the name of the Realist
School. The sociological method has brought legal science into intimate
relation with the facts of social life and made jurists recognise law as a
product of social forces. The realist movement applies the method with
special reference to those aspects of the law which are connected with courts
in the application of law is regarded by these realists as emanating from
judges. One of the great American Judges, Oliver Wendell Holmes (1841-
1936} is regarded as the spiritual father of this movement. In an address
delivered at the Boston University, Holmes made the following remark: The
prophecies of what the courts will do in fact and nothing more pretentious, are
what I mean by the law”. It has become a tenet of the realist school that a rule
of law is a rule of conduct so established as to justify a prediction with
reasonable certainty that it will be enforced by the courts if its authority is
challenged. Owing to the importance which they attach to the judicial function
in the creation of law, the realist schools of jurists are led to investigate the
precise nature of the judicial process and the various social factors at work in
giving substance to a judicial decision.

Llewellyn, one of the exponents of the realist movement, has set forth
the following points as the cardinal features of American realism:

(a) Realism is not so much a new school of jurisprudence as a new

methodology in jurisprudence.

(b) Realists regard law as dynamic and not as static. They regard law as
serving certain social ends and study any given cross-section of it to ascertain

84
to what extent these ends are being served.

(c) Realists, for the purpose of observation of the functioning of any part of the
legal system accept a "divorce of is from ought". This means that the ethical

purposes which, according to the observer, should underlie the law are
ignored and are not allowed to blur the vision of the observer.
(d) Realism emphasises the social effects of laws and of legal decisions.

The realist movement concentrated its attention on the role of the

Judges in the interpretation of law. Its proponents regarded Judges as
moulders of the law who have greater freedom of choice in coming to
decisions than is usually acknowledged by the exponents of analytical
jurisprudence. So toe realist school insists upon a study of the personality of

the judges to forecast with greater accuracy probable judicial action in a given
fact-situation.

Criticism: The 'realists' in America place emphasis on the need for an

enquiry into the effects of the interaction of law and social conduct. This is so
far so good. What needs equal emphasis, however, is toe need for an inquiry
into what results men should strive to achieve through law. A mere filing up of
data would not aid the science of law unless a value-judgment can be passed
thereon which would serve as toe basis for legislative action. The evaluation
would indicate what action is desirable upon the facts of law gathered by
observation. The basis for this evaluation is not found by pragmatism as such.
This is the weak point of toe pragmatists. This fact, however, is being
increasingly realised by the pragmatists themselves and efforts are being
made to supplement pragmatism by a theory of justice. Thus Garlan of the
realist school observes in his Legal Realism and Justice: "The attempt to
determine what the law is involves a simultaneous attempt to determine what
is desirable". When this corrective is supplied, 'realism' can be of toe utmost
service to the science of law.

It is clear from the above that, toe sociological school of jurisprudence

eliminates many drawbacks noticed in the other schools of thought.

85