KAMKUS COLLEGE OF LAW

LL.M. Ist. SEM.

JURISPRUDENCE– I
(Theories of Law)
(Code:L-1002)

Contents:
(1) Introduction: Definition, Nature and Scope of Jurisprudence, Importance of
the Study of Jurisprudence.

(2) Natural law: Classical Natural Law, Revival of Natural Law:- Rudolf
Stammler and Kohler.

(3) Analytical School: John Austin, Hans Kelsen, and H.L.A. Hart.

(4) Historical School: Fredrick Karl Von Savigny, Sir Henry Maine.

(5) Sociological School: Background and Characteristics, Roscoe Pound,

Leon Dugit.

(6) American Modern Realism.

(7) Economic Approach of Law: Marxist Economic Approach on Law.
(8) Relationship between Law and Morality: Hart and Fuller Controversy.

JURISPRUDENCE- It’s meaning:

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Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of
law are based. It is concerned with rules of external conduct which persons are constrained to obey.
Therefore, etymologically jurisprudence is that science which imparts to us knowledge about “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 statutes 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, tort, 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. These
have to be studied in details when we study those branches of law separately. This may be illustrated
further by the example of law of crimes. Jurisprudence examines the general principles of penal liability
but it does not attempt to detail out the essentials of each offence. In short, jurisprudence may be
considered to be the study and systematic arrangement of the general principles of Law.
Ulpian. -Jurisprudence, in its etymological sense means ‘Knowledge of law’
Prof.Gray. -Professor Gray has also defined jurisprudence more or less in the same manner. He opined
that “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”.
Salmond. -Salmond defines jurisprudence the “science of the first principles of the civil law”.
John Austin. -Austin calls jurisprudence as the “philosophy of positive law”.
Holland. -Sir Thomas Erskine Holland defines jurisprudence as ‘the formal science of positive law.
Dr. Allen. -The noted English jurist Dr. Allen has defined jurisprudence as ‘the scientific synthesis of the
essential principles of law’. Though this definition may seem to be abstract at a glance, it surely takes
notice of the widening scope of law in its various facets.
Keeton. -According to Keeton “jurisprudence is the study and scientific synthesis of the general
principles of law” The definition seeks to explain the distinction between public and private laws.
Roscoe Pound.-According to Pound, jurisprudence is “the science of law using the term ‘law’ in the
juridical sense, as denoting the body of principles recognized or enforced by public and regular
tribunals in the administration of justice”. He emphasized that there is an inevitable co-relationship
between jurisprudence and other social sciences. Thus he opined that “jurisprudence, ethics, economics,
politics and sociology are distinct enough at the core, but shade out into each other”. Pound suggested a
separate branch of sociological jurisprudence, which is concerned with the influence of law on society at
large. He firmly believed that behind every issue, there is something social; therefore, in the study of
jurisprudence, the emphasis should be on the relationship between law and society.

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believed that behind every issue, there is something social; therefore, in the study of jurisprudence, the
emphasis should be on the relationship between law and society.
SCOPE OF JURISPRUDENCE:
CONTENTS OF JURISPRUDENCE: - The following are the contents of jurisprudence:-
(i)Sources: It is true that the basic features of a legal system are mainly to be found in its authoritative
sources and the nature and working of the legal authority behind these sources. Under this head matters
such as custom, legislation, precedent as a sources of law, pros and cons of codification of laws, methods
of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for
study.
(ii)Legal Concepts: -Jurisprudence includes the analysis of legal concepts such as rights, title, property,
ownership, possession, obligations, acts, negligence, legal personality and related issues. Although all
these concepts are equally studied in the ordinary branches of law, but since each of them functions in
several different branches of law, jurisprudence tries to build a more comprehensive picture of each
concept as a whole.
(iii)Legal Theory: - Legal theory is concerned with law as it exists and functions in the society and the
manner in which law is created and enforced as also the influence of social opinion and law on each other.
It is therefore necessary that while analysing legal concepts and effort should be made to present them in
the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE:
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical use.
But it is not correct to say so. Its utility is as under:-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of serious
scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest.
The legal researches on jurisprudence may well have their effect on contemporary socio-political thought
and at the same time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the complexities of
law more manageable and rational and in this way theory can help to improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of
lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism
and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law
but the social function of law which has relevance in modern jurisprudence. For instance, a proper
understanding of law of contract may perhaps require some knowledge of economic and economic theory
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or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps
also of sociology.
4. Commenting on the significance and utility of jurisprudence: Holland observed, “the ever renewed
complexity of human relations call for an increasing complexity of legal details, till a merely empirical
knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the
fundamental principles of law in a given society. This why it has been characterized as “The eye of
law.”
5.Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by
the legislature by providing the interpretation.
6.The study of jurisprudence helps in rationalizing the thinking the students and prepares them for an
upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of
human affairs boldly and courageously.
7.Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-making.
The study of jurisprudence may familiarize them with technicalities of law and legal precepts thus making
their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and
life into focus for it concerns human thought in relation to social existence. The law should serve the
purpose of social-engineering by preserving societal values and eliminating conflicting interests of
individuals in the society.
Jurisprudence is the ‘eye of law’: On account of importance of jurisprudence in the field of law it is
called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost all
human activities and the movements of body are possible only through them. Unless man can see
anything properly, he cannot do any work. The reason of calling jurisprudence ‘the eye of law’ is that
jurisprudence functions for law in the same manner as the eyes do in human body. For example- the
interpretation of law is a very difficult task;it cannot be done without the help of jurisprudence.
‘PATON’ in this connection says that,“Jurisprudence is a particular method of study, not the law of one
particular county but of the general notions of law itself.’ Whenever any complicated problem regarding
law like:-
(1)How and when the law developed. (2) What is its object?(3) Whether the law was made by people or
it was due to the inspiration of some Divine force. (4) Whether the law is a command of a sovereign or it
is a result of gradual development of civilization in society. The main function of jurisprudence is to study
the origin of law, its development and its contribution towards society.

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The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is the well
known saying that, “ignorance of law is no excuse,” hence it is essential to know the correct basic
principles of law which are contained only in the jurisprudence. Law is also connected with civil life. A
person who obeys laws is known as a civilized citizen. A person who does not obey law is punished. It is
therefore necessary that all the people should have the sound knowledge of law which is possible only
with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has
rightly been called the eye of law.
Jurisprudence- Modern Concept:
In the present century, therefore, the concept of jurisprudence has changed some emphasizing the
historical aspects of the law with wholly different notion of law depending upon the customs, traditions
and usages of each community. Others like Cardozo, Llewellynhave defined jurisprudence in terms of
judicial processes’
Importance / Utility of Jurisprudence:
Julius Stoneperfectly defines Jurisprudence. According to him "jurisprudence is lawyers
extraversion". The knowledge of Jurisprudence sharpens the lawyers own technique of the
logical analysis of legal Concepts. It helps lawyers to set the law in its proper contours by
considering the needs of the society and by taking note of the advances made in related and
relevant disciplines.
Holland observed that jurisprudence throw light on the basic ideas and the fundamental
principles of law in a given society. Therefore some of the jurists call it "eye of law".
Jurisprudence helps the judges and lawyers in ascertaining true meaning of laws passed by the
legislature by providing the rules of interpretation. To become successful lawyer or judge
jurisprudential background is necessary.
Jurisprudence is also helpful to legislators who play a vital role in the process of law making.
Study of jurisprudence helps them to understand the technicalities of the law and legal precept. It
makes their job easy and interesting.
One must be aware, however, that a study of jurisprudence is not considered an essential
component of the education and training programs of large numbers of lawyers. Concentration
by some jurists on highly abstract theorising, to the exclusion of the severely practical concerns
of the law, may have contributed to suspicion of the subject and a rejection of its pretensions.

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Posner’s condemnation of much recent jurisprudence as ‘much too solemn and self-important’
and of its votaries as writing ‘too marmoreal, hieratic, and censorious a prose’ is worthy of note.
Much of the true value of jurisprudence resides elsewhere than in the day-to-day practical
applications of the law. It is claimed that its study provides a discipline of thought which seeks
not to ignore the realities of legal practice, but rather to give added dimension to an
understanding of those realities. Jurisprudence offers an overall view of the law, a unified and
systematic picture, in which the nature of legal institutions and theories becomes more
comprehensible. Austin viewed jurisprudence as providing a ‘map’ of the law which presents it
as ‘a system or organic whole’.
Some legal scholars and students have found a major attraction of jurisprudence to be its intrinsic
interest, which emerges from the importance of the perennial questions with which it deals.
‘What are human rights?’, ‘Are there any absolute values in the law?’, ‘What is justice?’ These
problems exemplify matters which have been raised over the centuries by philosophers and
jurists. Not only the content of legislation and the administration of legal institutions, but the
basis of society itself, have been affected by attempts to answer questions of this nature. They are
of abiding human interest.
The intellectual discipline required for a study of this area of thought must be of a high order.
Intensive, systematic analysis, the ability to exercise one’s critical faculties and to engage in a
continuous questioning of one’s own basic assumptions – all can be heightened by a study of
jurisprudence. The intellectual skills required to see into the essence of current arguments which
turn, for example, on ‘the right to silence’, ‘the value of the jury’, ‘the presumption of
innocence’, can be sharpened by a consideration of legal theorising.
The study of jurisprudence should enlarge one’s perception of the patterns of fact and thought
from which today’s legal structures have emerged. Specifically, awareness of the evolution of
legal thought provides a key to an understanding of change as a basic phenomenon of the law. It
is the continuous shifting of views and the transformation of social institutions which tend to be
reflected in jurisprudence – and which give rise to the deep conflicts which trouble many
observers, such as Arnold. The ability to perceive a process of change beneath the apparently
static processes of the law can be intensified by jurisprudential analysis. It is of interest to note

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the recognition of change which emerged in the decision of the House of Lords in Page v
Smith(1995) and in which could be discerned a modification of views concerning nervous shock
and tort – an area in which there has been much jurisprudential speculation and debate. The War
Crimes Act 1991 was preceded by wide-ranging debates which turned on important aspects of
legal theory, involving changing social attitudes towards crime, punishment, and retribution. A
shift of emphasis in the role of foresee ability and intent in assault, which has formed the basis of
much recent jurisprudential debate, was evident in the decision of the House of Lords in R v
Savage (1991). Perception of the law as an aspect of a changing social environment and attitudes
characterizes much contemporary juristic thinking, particularly evident in cases involving ‘the
right to life’: see, for example, the decision of the Court of Appeal in Re A (Children) (2000), in
which the court was asked to pronounce on the lawfulness of the surgical separation of conjoined
twins.
Additionally, awareness of change and its reflection in legal theory may enable jurists to note,
and perhaps warn against, the invisible, unacknowledged, yet extremely potent influence of
‘defunct scribblers’ who continue to affect the thoughts and the activities of those ‘practical
persons’ who have ‘no time for theorising’. Jurists and philosophers have pointed out the
significance of the paradox that those who affect to reject theory are, effectively, embracing it.
The statement, ‘I don’t need any legal theory to tell me that violence can be met effectively only
by a law which sanctions counter-violence’, is, in fact, the expression of a basic, complex theory.
The belief, ‘You haven’t to be a theoretician to know that the law has no place in family
relationships’ implies acceptance, consciously or unconsciously, of a profound analysis of
functions of law. A study of the growth and social context of legal theory makes clear the
relationship of theory and practice, the one modifying the other.
The very wide range of contemporary jurisprudence has enlarged its relevance and interest. The
days when legal theory was equated with an implied rejection of the significance of ‘problems of
the real world’ have gone. The figure of the jurist as a recluse, uninterested in law in action, is
now seen as mere caricature. Modern jurists include many who demonstrate a profound concern
for social justice and communal harmony – this is obvious in the writings of contemporary
American legal theoreticians. Dworkin, for example, argues cogently that the real purpose of the

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law can be found in the aim of ensuring that a community acts towards all its members in a
‘coherent, principled fashion’. Rawls proposes acceptance of a public conception of justice
which must constitute the fundamental character of any well-ordered human association. Nozick
lays stress on the importance of using principles of justice so as to clarify problems inherent in
the holding and transferring of society’s resources. It may be that a pattern of concern has now
emerged in which the responsibilities of the law, its theoreticians and practitioners, are clearly
emphasised, a pattern which is in clear contrast to the implications of Arnold’s perception of a
‘chaotic’ jurisprudence.
Where jurists survey the established socio-legal order, their jurisprudential analysis is often of
significance for students of the law who are a part of that order, and whose perceptions of law as
an instrument of social policy are thereby challenged. One type of perception relates generally to
the relationship between jurisprudence and other disciplines. Because modern jurisprudence
ranges very widely over society and because it builds some of its theoretical framework on
material derived from contact with other disciplines, students are brought to an awareness of the
interdependence of all social studies and to acceptance of the complex nature of their own place
within the social framework – a positive step which belies the negative nature of Arnold’s
comment.
The role of the lawyer within our society – and it is that to which many law students aspire –
is the subject of continuing analysis by jurists, with the result that the very rationale of the legal
profession in the Western world has become a matter of debate and can no longer be taken for
granted – a valuable event in itself. Thus, Luban has investigated facets of the role of the lawyer
as ‘partisan advocate’ – a creature of the common law adversarial system. He believes that the
standard view of the role of the lawyer, based on principles of ‘partnership and
non-accountability’ in some respects, may no longer be acceptable to society save in a highly
qualified form. He calls for a more intensive debate on professional ethics as they relate to the
individual conscience and socio-legal institutions and suggests that the lawyer acts as a ‘broker
of the conspiracy at the Centre of the legal system’ – a conspiracy between citizens and legal
institutions, each acting within defined areas so as to maximize power. Jurisprudential analysis
of this nature is thought provoking and valuable.

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 Perhaps the most important product of a study of jurisprudence emerges in an enhanced ability
to discern the shape of legal things to come, albeit in shadowy and inchoate form. The attitudes
of today’s legal theoreticians in relation to matters such as mens rea, causation, the concept of
economic loss in tort, the basis of property rights, and the nature of parental responsibility, might
mark tomorrow’s ideologies and legal structures. A study of the modes of thought of
contemporary jurists contemplating ‘the destination of the law’ cannot but be advantageous to
those who have an interest in the future of society and the law.
None of these comments should be taken, however, as denying the existence of trivial, often
worthless, theorising in the name of jurisprudence. Feinberg’s objections to ‘portentous and
hoary figures from the past’ being paraded, each with an odd vocabulary, and a host of dogmatic
assertions, to the confusion of students, are not to be ignored. These objections may add weight
to Arnold’s complaint. But interest in the past for its own sake has little appeal to lawyers or
students. ‘Jurisprudence for its own sake’ is now almost a meaningless slogan. Jurisprudence has
changed its objectives and its methodology. The search for justice in human relationships, the
search for certainty in the law and the continuous probing of the role of the State in the
recognition, promulgation, and enforcement of human rights are rarely absent from legal
theorising. The result is a challenging of entrenched positions and narrow certainties, and a
questioning of the hitherto unquestionable. This is, indeed, a sign of ‘conflict’; but it is also a
sign of vitality.
When Stone wrote of the science of jurisprudence as ‘the lawyer’s extraversion ... the light
derived from present knowledge in disciplines other than the law’, he acknowledged the
structures of legal theory as being linked totally with other studies, thus proclaiming the
relevance of jurisprudence to life in general and everyday law in particular.
In that sense, a study of jurisprudence can be valuable in that it ensures perceptions of the law in
the setting of a comprehensible, changing world. At times, these perceptions will appear, in
Arnold’s words, as ‘a troubling mass of conflicting ideas’, chaotic and often contradictory. But
this is not necessarily a negative or undesirable state of affairs, for it is in the attempted
resolution of apparent contradictions that the study of jurisprudence can be advanced.

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 Julius Stoneperfectly defines Jurisprudence. According to him "jurisprudence is lawyers
extraversion". The knowledge of Jurisprudence sharpens the lawyers own technique of the
logical analysis of legal Concepts. It helps lawyers to set the law in its proper contours by
considering the needs of the society and by taking note of the advances made in related and
relevant disciplines.
Hollandobserved that jurisprudence throw light on the basic ideas and the fundamental
principles of law in a given society. Therefore some of the jurists call it "eye of law".
Jurisprudence helps the judges and lawyers in ascertaining true meaning of laws passed by the
legislature by providing the rules of interpretation. To become successful lawyer or judge
jurisprudential background is necessary.
Jurisprudence is also helpful to legislators who play a vital role in the process of law making.
Study of jurisprudence helps them to understand the technicalities of the law and legal precept. It
makes their job easy and interesting.
(2) Natural Law Theory or Law of Nature:
The natural law philosophy occupies an important place in the realm of politics, law, religion and
ethics from the earliest times. It has played the role of harmonizing, synthesizing and promoting
peace and justice in different periods and protected public against injustice, tyranny and misrule.
Commending the function of natural law in liberating people from politico-legal disorder and
tracing its evolution, Blackstone observed:
“the natural law being co-existent with mankind and emanating from God Himself is superior
to all other laws. It is binding over all the globe in all countries and at all the times and no
man made law will be valid if it is contrary to the law of nature.”
Legal thinkers have expressed divergent views regarding the extent of natural law. The natural
law philosophy dominated in Greece during 5th B.C. when it was believed that it is something
external to man. Sophists called it as an order of things which embodies reason. Socrates, Plato
and Aristotle also accepted that ‘postulates of reason have a universal force and men are
endowed with reason irrespective of race or nationality.

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Cicero supported natural law since it is the creation of reason of the intelligent man who stands
highest in creation by virtue of its faculty of reasoning. He believed in universal applicability of
natural law because it is based on the general morality of the human society.
The concept of natural law has been differently interpreted by writers at different times. Some of
them contend that natural law consists of ideals which guide legal development and
administration while others charactertises it as quest for perfect law deducible by reason. The
supporters of natural law theory believe that there is a basic element in law which prevents a
total separation of ‘law as it is’ from the ‘law as it ought to be’

Main Characteristics of Natural Law:

•Itis called lex naturalis in Latin.
•It refers to the use of reason to analyze human nature and deduce binding rules of moral
behavior.
•This law refers to the basic principles of natural rights and wrongs and leads to Principles of
Natural Justice.
•It is often said that this law is a Command of the God that is imposed on Men.
•This law is established by reason by which the world is governed. It is an unwritten law and
there is no specific code or Act for this though this is found in every Act.
•This law is also called Eternal Law because it has existed since the beginning of the world.
•Because it is based on the very basic principles supposed to be to be laid down by God for
guiding human, this law is also called Natural Law.
•Since this law is based on reasoning and rational thinking, it is called Rational Thought
•Natural law exists only in ideal state and differs from law of a State.
•Philosophy of Natural law has inspired legislation and the use of reason in formulating a System
of law
All the above points can be summed up by saying: Natural law is the idea that there are rational
objective limits to the power of legislative rulers. The foundations of law are accessible through
human reason and it is from these laws of nature that human created laws gain whatever force
they have.

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Aristotle is the Father of Natural Law. Socratesand Plato posted the existence of natural justice
or natural right.
The Natural Law Theory, according to Salmond, consists of 'objective moralprinciples which
depend on the essential nature of the universe and which can be discovered by natural reason'.
The theory says that a higher or universal law exists that applies to all human beings, and written
laws should imitate these inherent principles.
If a written law is unjust, then it is not a true (natural) law and need not be obeyed. This theory
asserts that there are laws that are imminent in nature, to which enacted laws should correspond
as closely as possible.
This view is frequently summarized by the maxim - an unjust law is not a true law - lex injusta
non est lex, in which ‘unjust’ is defined as contrary to natural law.
Natural law is closely associated with morality and, in historically influential versions, with the
intentions of God.
Natural law is sometimes identified with the maxim that "an unjust law is no law at all".
Classes of Natural Law:
Natural Law can be studied in four classes:
1.Ancient Theory
2.Medieval Theory
3.Renaissance Theories
4.Modern Theories
Natural Law- Greek Origin (Ancient Period)
To Greek natural law was both a way of living as well as thinking. The Greek philosophers, the
Sophists, Socrates, Plato and Aristotle touched either in a purely theoretical or practical manner
upon the ethical or political side of the speculation.
Heraclitus (530-470 B.C.) was the first Greek philosopher who founded natural law philosophy
in the rhythm of events. He took fire as his fundamental physical principle i.e. bright and dry-
and he seems to have regarded this as incessantly struggling with the dark and moist principle
which is opposed to it.

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Socrates (470-399 B.C.)was great inquirer of truth and moral values and not a dogmatist. For
practical reasons he emphasized upon practical morality which he based on scientific outlook.
‘Virtue’ he said ‘is knowledge’ and “whatever is not knowledge is sin”.
Plato (427-347 B.C.) expounded his concept of State- the Republic wherein with perfect
division of labour
“each man ought to do his work in the station of life to which he is called by his capacities.”
To him “To mind one’s own business and not to be meddlesome is justice.”
Thus Plato enunciates the doctrine that justice is harmony of man’s inner life and harmony is the
quality of justice and it is achieved by reason and wisdom over desires. In his ideal State Plato is
of the view that it is the intelligent man- the philosophers who should be the kings.

Aristotle (385-322 B.C.)

Aristotle expounded the theory of natural law and positive law in clearer terms than his
predecessors. The purpose of State, community, law is to enable man to realise good life that is
living according to virtue. It was Aristotle who said, ‘He who bides the law or rule, may be
deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the best;
for desire is a wild beast and passion perverts the minds of the rulers, even when they are best of
men. ‘The law is reason unaffected by desires’ Thus law of reason embodies the basic principles
of justice and morality which were of universal validity and independent of time and place. For
Aristotle says, ‘Of political justice part is natural, part legal,- natural, that which everywhere has
the same force and does not exist by people’s thinking this or that; legal, that which is originally
indifferent, but when it has been laid down is not indifferent.’

Sophists (450-400 B.C.)

Beside these philosophers a remarkable group of teachers called Sophists had also focused on
ethical and moral values in order to prepare the young men of Athens to be efficient citizens. in
instructing them in the duties of citizen. In instructing them in the duties of citizenship, they
found it necessary to inquire into the basis of political obligation and social morality in general.
The Sophists – Parmendes and the Pythagoreans helped to preserve stability and postulated

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reason for obedience of law. Thus the Sophists, cynics and philosophers in Greece developed a
general omnibus theory of State, society, natural law and law as philosophers rather than as
lawyers and jurists. Pound rightly observes, that to understand Greek thinking about law we must
remember four points:
(1)It is the thinking of philosophers or of Orators, not of jurists;
(2)It is influenced by the contrast of politically declared or politically made laws and tribal
ethical custom in what was still an undifferentiated social control;
(3)Enacted laws were in origin declared custom………;
(4)There was a growing sense of law as a conscious product of wisdom………….”

Romans- Natural Law:

Although the Greeks and the Stoic philosophers expounded the doctrine of higher law of nature
based on reason in the philosophical sense, it was left to the Romans to study, explain and
systematize natural law as lawyers and judges in a legal manner.
In fact, the Romans magistrates – praetor peregrinus (who expounded the doctrine of
jusgentinum),praetor urbanus (who administered jus civile), and the Romans lawyers all
contributed towards the scientific development of natural law strictly on legal basis which finally
culminated in the famous Code of Justinion. During the time of Justinion the jurists were able to
distinguish the jus natural, the jus gentium and the jus civile and to attach to each its peculiar
characteristics. Julius Stone rightly observes,
………….Greek law in general scarcely survived as a system because it never found its class of
legal specialists and never abandoned its lay administrators, its popular tribunals of grotesque
size. While Roman law developed through the efforts of juris consults and praetors into a
permanent heritage of western society. Natural law with Greek thus remained a philosophers’s
speculation in an age of unsettled conditions and political disorders. At Rome on the other
hand……….natural law was given a revolutionary role in legal development in the practical
activities of juris consults, in those of the praetorperegrines……..and of the praetor urbanus

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and all those participated in adapting the old juscivile to the needs of a developing commercial
society
Roman Legal Theory:
Indeed Markus Tullius Cicero (106-43 B.C.),Roman Philosopher achieved fame as lawyer,
statesman and orator. His legal philosophy is contained in his famous work ‘De Legibus.’
According to him,
“true law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting………………and there would not be different laws at Rome and at Athens,
but one eternal and unchangeable law which will be valid for all nations at all nations at all
times”,
Thus Cicero supported natural law because it was a creation of ‘reason’ of the intelligent man
who stands highest in the creation by virtue of his faculty of reasoning. He believed in the
universal applicability of natural law based on general morality of the human society.

Natural Law and Medieval Age:

The period from 12th century to mid-fourteenth century is generally reckoned as the ‘medieval
age’ in the European history. This period was dominated by the ecclesiastical doctrines which
the Christian Fathers propagated for establishing the superiority of Church over the State. They
used natural theory to propagate Christianity and to establish a new legal order and political
ideology based on morals and theology. The Christian Saints especially Ambrose,
St.Augustineand Gregorypropagated a view that Divine law was superior to all other laws.
According to them, all laws are either Divine or human. Divine laws are based on nature while
human laws on custom. It is the divine nature of the natural law which makes it binding
overruling all other laws. Saint Augustinepointed out that divine wisdom was revealed in the
scriptures. The moral precepts or Holy Scriptures were in fact the principles of natural law.
According to Gierke, the medieval period Christian theology centered around two
fundamental principles, namely:-
(1)Unity derived from God, involving one faith, one church and one empire; and
(2)The supremacy of law both, divine and man-made, as a part of unity of universe.

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Until the rise of humanism natural law, divine law and human law were bound together, all being
imposed from above by God.

The main tenetsof the natural law theory of the medieval period may briefly be stated as
follows:-
(1)The supporters of the theory believed that the institution of slavery, property, state etc.
represented the evil desires because they are not the creation of nature, nevertheless, they are
necessary for preventing or limiting the vicious tendencies of men. The existence of State and
society is essential for the development of morals and ethical values in man. Ciceroand
Senecasupported this view.
(2)‘Law’ is the greatest binding force both for those who govern and the governed. Thus the
natural law theory accepted the supremacy of law.
(3)The greatest problem before the medieval legal thinkers and philosophers was the correct
interpretation of law. They believed in two facets of the human activities, namely,
(i)Worldly and (ii) Godly. They are radically different from one another and there
arises no question of conflict or clash between the two. State i.e. ruler is supreme in
the field of worldly activities whereas Pope held supreme authority in the realm of
Godly activities.
(4)As to the question about the exact source of legal authority in a developed society, the
majority view was that State and law were the gift of the people who agreed to subdue
themselves to their authority.

Saint Thomas Aquinas (1225-1274)

Among the theologicians of the medieval period, the name of Thomas Aquinas deserves a
special mention. St. Aquinas was the first theologist who in his famous work Summa
Theologica considered law as a means to end and, therefore, ought to follow the divine law as
embodied in Ten Commandments which is the repository of all divine revealed wisdom
contained in the Scriptures. It was he who made a clear cut distinction, between lex aeterna and
lex naturalis of which the former is the reason of divine wisdom ‘governing the whole

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universe’ while the latter is the law of human nature, proceeding ultimately from God, but
immediately from human nature, and governing the actions of men only. Man, he held, being a
rational creature, participates in eternal reason, so that he must which the lex aeterna addresses
to the rest of the creation, is ought when addressed to him.
Thus that part of the eternal law which man’s reason reveals is to be called natural law. As
regards human law (lex humana) was concerned, it embodied the primary precepts of natural
law. The precepts of human law are these: to live honourably; to injure no one; to give every
man his due.
To sum up, the eternal law, the natural law and the human law form a continuous series. The
whole series may be compared to a tree, with the eternal law for its root, the natural law for its
trunk, and the different systems of human law for its branches. Wherever, the soil is not too bad
and the climate favourable, the tree sends forth its splendid flowers of justice and equity and
yields the fruits of peace and order, virtue and happiness. Indeed peace is the fruit of justice.
According to St. Thomas the law of nature is the foundation of all human law.

Natural law – Modern Classical Era (The Period of Renaissance):

The natural law of the classical modern era was in essence different in form and spirit from that
of medieval age which was dominated by Church, priests and holy Christian Saints. After
Renaissance and Reformation in the 14th and 15th centuries natural law ceased to be associated
with Church or Divine God. While Renaissance destroyed medieval feudal order by freeing
individual from its clutches, the Reformation re-interpreted the true spirit of man and his nature
on the basis of Aristotlean or Ciceroian philosophy – especially as propounded by Hugo
Grotious, Hobbes, Locke, Rousseau and Kant.
Thus natural law of modern classical period was marked by its two distinctive characteristics.
First, it was more secularized, political and non-religious in form and content. The new natural
law philosophy divorced from its theological or divine origin and was founded once again on
human reason exclusively. Second, the medieval scholastic thinkers had made individual as
merely an object having only duties and obligations towards Pope, the Emperor and the feudal
lords. The emerging natural law in the classical era became a theory of Natural Rights of Man

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and States which dominated the British, the French and the American Revolutions in seventeenth
and eighteenth centuries. Consequently, natural law ceased to be lex naturalis- the enactments of
a supernatural legislator God and again became jus naturale – the dictate of right reason in the
sixteenth, seventeenth and eighteenth centuries.
Thus the role of natural law during this period was unpredictable – at times, as can be seen from
the natural law theories of Grotius, Locke and Rousseau, it was of revolutionary character
undermining the existing institutions and at other it was a shield to perpetuate and bolster status
quo as is seen in the natural law theory of Thomas Hobbes.
(1)Hugo Grotius (1583-1645)
The Dutch scholar, statesman, philosopher, jurist and diplomat was the child of Renaissance and
Reformation. He propounded a theory of functional natural law which became the basis of his
pioneering work ‘De jure Belli ac pacis,’(Laws of War andPeace 1625). He propagated the
principles of international law which he believed to be applicable on all states which were
binding on them both in war and peace. These common principles among nations which Grotius
referred are the natural law.
(2) Thomas Hobbes (1588-1679)
Hobbes theory of natural law is to be seen in the context of civil war between Protestants and
Catholics in England during 16th century causing political uncertainty and instability and so he
advocated firm and inflexible application of the laws against disorder and conflicts. Accordingly
in Hobbes natural law becomes an instrument to perpetuate reactionary conservatism and justify
status quo in order to preserve peace and protect individuals from perpetual conflict, chaos and
war. In him the principle feature of natural law was the natural right to self- preservation of
person and property. Connecting with this was Hobbes´ political motive in using natural law to
justify the necessity of an absolute ruler, an overwhelming political power to protect ordinary
people against themselves and against their own feelings. Thus Hobbes completely striped
natural law of its religious and metaphysical character. Hobbestheory of natural law was:
“The law of nature, that I may define it, is the dictate of right reason
conversant about those things which are either to be done or omitted for
consent preservation of life and as members as much in us lies.”

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According to Hobbes, prior to ‘social contract’, man lived in chaotic condition of constraint fear.
The life in the state of nature was “solitary, poor, nasty, brutish and short”. Therefore, in order
to secure self- protection and avoid misery and pain, men voluntarily entered into contract and
surrendered their freedom to some mightiest authority who could protect their lives and property.
This led to the emergence of the institutionof the ‘ruler’ which later assumed the form of the
State. Thus Hobbes was supporter of absolute power of the ruler and subjects had no rights
against the sovereign who had to be obeyed however tyrannical or unworthy he might be.
Obviously, church also had no power or authority over the sovereign.
Obviously, Hobbes used natural law theory to support absolute authority of the ruler. In his
famous work ‘Leviathan’ which appeared in 1651, he observed that law is dependent upon the
sanction of the sovereign. In his opinion, “Governments without sword are but words, and of no
strength to secure a man at all”. He therefore, reiterated that civil law is the real law because
it is commanded and enforced by the sovereign. Taking inspiration from Hobbes´ theory, later
writers and legal thinkers propounded their theories of utilitarianism, materialism and
absolutism. Austin’s imperative theory of law is essentially an outcome of Hobbes´ doctrine of
absolutism of the sovereign.

(3) John Locke (1632-1704):

Samuel Pufendorf- the German philosopher and Montesquieu followed Hobbes in the continent
of Europe. In both of them the state of nature is not like that of Hobbes and create an internal
structure of state based on social contract wherein the government rests on the consent of the
governed and can be changed if it did not protect natural rights of the individuals, e.g. the
freedom of speech, association, common safety and security of men in society. Both of them also
define law as a dictate of right reason or human reason.
He therefore, came out with a new interpretation of the social contract rejecting Hobbes´ earlier
concept of state of nature. He stated that the life in state of 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

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Hobbesian theory. Thus the natural rights of man such as right to life, liberty and property
remained with him and only the right to maintain order and to enforce the law of nature was
surrendered by him. The purpose of the State and law was to uphold and ‘protect the natural
rights’ of men. So long as the State fulfils this purpose, its laws were valid and binding but when
it ceases to do so, the people have a right to revolt against the government and overthrow it. Thus
Locke emphasized on the protection of three main rights, namely, right to life, liberty and
property which were inalienable and necessary for the well being of the individual.
It may be stated that Locke’s idea of social contract was founded on new secular approach to
natural law whereby the 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.
The nature of state as contemplated by Locke has been criticized by some jurists on the ground
that if the life in the state of nature was happy and enjoyable, where was the necessity to install a
government or State? Besides, Locke’s theory gives an impression as if there might have been a
social contract actually, which in fact is merely a conceptual assumption.

Jean Jacques Rousseau (1712-1778):

According to Jean Jacques Rousseau, the French philosopher and jurist, the original freedom,
happiness, equality and liberty which existed in primitive societies prior to social contract was
lost in the modern civilization. Hence through De Contract Social a new form of social
organization – the State was formed to assume and guarantee rights, liberties, freedom and
equality. Thus, State and law which were one and the same thing according to Rousseau were the
product of General Will and not of reason as the jurists in the 17th century proclaimed.
According to him sovereign is not only source but the essence of law, because the sovereign acts
only by means of law. The sovereign has no force other than the legislative power. ‘In short’ he
said ‘each given himself to all, gives himself nobody; and there is not one associate over whom
we don’t acquire the same rights which we concede to him over ourselves, we gain the
equivalent of all that we lose, and none, power the preserve what we have. By this device while

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the individual relinquishing his natural rights in return received civil liberties – freedom of
speech, assembly, press, equality.
As regards Rousseau’s theory of General Will (volente generale) it was the ‘will’ of the whole
community. It was the ‘general will’ instead of right reason which became the standard of right,
justice and equality. The ‘general will’, therefore, for all purposes was the will of the majority
citizens to which blind obedience was to be given. It could never be the will of all citizens for
such a thing is merely a wishful thinking. The majority view was accepted on the belief that
majority view is right than minority view. Rousseau himself did not refer ‘general will’ as
majority view but he said that ‘general will’ is always right about the common good and
common interest. As regards his concept of law is concerned in the Chapter on Law, Rousseau,
observes:
‘But when the whole people decrees for the whole people, it considers only itself – without
there being any division of the whole. In that case the matter about which decree is made is,
like decreeing will, general. This act is what I call law.’
In other words, Rousseau’s concept of law, general will, sovereignty, State, etc. are
interchangeable terms.
Immanuel Kant (1724-1804):
The natural law philosophy and doctrine of social contract was further supported by Kantand
Fichte in eighteenth century. They emphasized that the basis of social contract was ‘reason’ and
it was not a historical fact. Kant drew a distinction between natural rights and the acquired rights
and recognized only 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 law.
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 Bentham in the early 19th century because
of his theory of hedonistic individualism. Kant propounded his famous theory of ‘Categorical
Imperative’ in his classic work entitled ‘Critique of Pure Reason’
Kant’s theory of ‘Categorical Imperative’ was derived from Rousseau’s theory of ‘General
Will’. It embodies two principles:-

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(1) The ‘categorical imperative’ expects a man to act in such a way that he is guided by dictates
of his own conscience. Thus it is nothing more than a human right of self-determination.
(2) The second principle expounded by Kant was the doctrine of ‘autonomy of the will’ which
means an action emanating from reason but it does mean the freedom to do so as one pleases.
In essence, Kant held that, “an action is right only if it co-exist with each and every man’s
free will according to the universal law”.This he called as “the principle of Innate Right”. The
sole function of the State according to him is to ensure observance of law.
Distinguishing law from morality, Kant replaced the rational foundation by a metaphysical
natural law based on the obligatory force of the legal order. He argued that law needed no
foundation as it stands upon its own basis as a system of precepts imposed and enforced by the
sovereign. Kant believed that “law is the last result of human wisdom acting upon human
experience for the benefit of the public.” Therefore, he regarded positive law as the product of
human wisdom.

Kant’s Doctrine of Moral Reason- Categorical Imperative

In Kant the law of nature is conceived as a principle of human reason – a kind of rational
system capable of rational deductions on ethical lines. Such a ‘pure reason’ cannot be derived
from empirical observations or by a process of inductions. According to him the law of reason is
a purely logical category not influenced by external factors or ends or empirical choices or
experiences. Law of reason is a moral imperative – it is categorical, obligatory in the form of
command directing the human will to do what is morally good for all at all times and places
irrespective of ends, consideration of selfish desires. Kant in his “Foundation of Metaphysic of
Morals” makes a distinction between Hypothetical and Categorical Imperatives. He says, ‘All
imperatives are commands either hypothetically or categorically. The former present the
practical necessity of possible action as a means to achieving something else which one desires
(or which one may possibly desire). The Categorical Imperative would be one which presented
an action as of itself objectively necessary without regard to any other end’. He distinguished
Categorical Imperative from Hypothetical Imperative, he latter says, ‘If you want to do this.’ The
Hypothetical Imperative is selfish, interest oriented and can never be a universal imperative.

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Categorical Imperatives consider duty without any particular regard. It is to be done simply
because it is a command of free will. It is to be done for its own sake because it is a dictate of
one’s own reason. This call is imperative or obligatory since it has to be complied with in all
times and all places. Thus Kant’s test of rationality of an imperative is its universality. Take an
imperative, make it universal, so as to be acceptable to all and its moral test is complete. Kant,
therefore, was of the view that the absolute imperative duty has no reference to any external ends
to which the will is directed, but simply the right direction of will itself.
It follows from this that moral law cannot have any particular content. It cannot tell us any
particular things that we are to do or to abstain from doing; because all particular things have in
them an empirical and contingent element, and the moral law can have no reference to any such
element. Hence moral law cannot tell us what the matter or content of our actions ought to be; it
can only instruct us with regard to the form. But a pure form, without any matter, must be simply
the form of law in general. That is to say, the moral law can tell us nothing more than that we are
to act in a way that in conformable to law. And this means simply that our actions must have a
certain self-consistency – i.e., that the principles on which we act must be principles that we can
adopt throughout the whole of our lives, and that we can apply to the lives of others. Kant is thus
led to give as the content of the Categorical Imperative this formula, - ‘Act’ only on that maxim
(or principle) which thou can at the same time will to become a universal law.’ He illustrates the
application of this formula by giving few examples.
It is wrong to break a promise, because the breach of a promise is a kind of action which could
not be universalized. If it were a universal rule that every one were to break his promise,
whenever he felt inclined, no one would place any reliance on promise.
Similarly, we could not without a certain absurdity, have universal suicide or universal stealing
or even indifference to the misfortunes of others. Since, then, we cannot really will that such acts
should be done by everyone; we have no right to will that we ourselves should do them. In fact
moral law – act only in such a way as you could will that everyone else should act under the
same general conditions.

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Thus Categorical Imperative is not a subjective choice but an objective necessity. Being
objective it is an end in itself. The individual, who is an embodiment of this imperative is
consequently an end in himself. Kant accordingly propounded two principles.
(a) Act in such a way that maxim (principle) of your action can be made the maxim of a general
action. This is his famous ‘Categorical Imperative’
(b)The other principle which Kant expounded was the doctrine of the ‘autonomy of the will’.
This, however, did not mean the freedom to do as one pleases. An action to be free in an action
emanating from reason. ‘There can be nothing more dreadful’, said Kant ‘than that actions of
a man should be subject to the will of another’. The freedom of will is to follow one’s own
determination. Of course, reason calls a man to act as a consistent whole. He ought to regulate
his conduct by making some agreement with himself. Such agreement is the only test which
distinguishes a sane man from an insane. As a corollary of the categorical imperative Kant also
postulated the basic concept of ‘Innate Right’ belonging to everyone by nature independent of
all juridical acts of experience, ‘the birth right of freedom’ that is, ‘independence from the
arbitrary will of another.’ ‘An action is right’ said Kant ‘only if it co-exist with each and every
man’s free will according to the universal law.’ This was his ‘principle of Innate Right or
Freedom;

Natural Law – Nineteenth Century Positivism

In the 19th century the general environment was not conducive to natural law. The period
witnessed the emergence of Industrial Revolution, great scientific discoveries laissez faire
ideology both in politics and economy which urgently needed a certain, stable and deterministic
legal theory instead of fluid and reflex theories of natural law. Both industrial innovations and
scientific discoveries were based on a posteriori determinate principles stipulating definite
guidance, action and consequences. In legal theory the overall hegemony of natural law had been
overshadowed by Montesquieu’s ‘Esprit des Lois’ in which he asserted that laws are the creature
of climate, soil, environment, custom and commerce, etc.
It was, however, David Hume (1711-76) who destroyed the theoretical basis of natural law. As a
great analytical thinker Hume insisted on the separation of law and morals and rejected the

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existence of natural law on account of its being vague, confusing and contrary to empirical and
observable facts and truths. Further, the French philosopher Auguste Comte, a great positivist
ushered the era of modern positivism or positive philosophy which gave rude shock to natural
law. He stood against dogmatism, superposition, fetish and super-natural beliefs, which,
according to him, were false, non-scientific and subjective. He classified the growth of human
belief through three phases from the time men began to think of the mysterious nature- what
came to be regarded the Law of Three Stages. In the primitive Theological Stage men had strong
belief that physical phenomenon – the sun rise, the rainfall, the sea and the seasons and the like
are, all caused, controlled and directed by super-natural power. The next was the medieval
Metaphysical Stage wherein the thinking developed that every natural phenomena is caused by
the action of God and similar unseen divine power. The third stage – is the Positive or Scientific
as people gave up the idea of unseen and unknown supreme power and begun to investigate, and
understand the universe through ‘observation’, analysis, recording and interpreting the
observable data and thereby drawing conclusions on the basis of it. The theory of ‘natural
selection’ of Darwin gave further impetus to 19th century positivism which was the arch enemy
of natural law.
Indeed the cult of ‘scientific study of society’ was carried further by Jeremy Bentham, James
Mill, and John Austin etc. in England as all of them held low opinion and hatred towards natural
law. Jeremy Bentham especially coined epithets for natural law as confusing, non-sense, abstract,
etc. and concluded it as, ‘this formidable non-entity the law of nature’ or ‘non-sense in silts’.
John Austin condemned natural law as ‘ambiguousandmisleading’ ‘laws improperly so-called’
‘laws by analogy’ denoted by the expression ‘positive morality’.
In Germany with the emergence of Historical School the main thrust and theme of legal theory
was anti – philosophical, anti-rational anti-universal. Law was considered as a product of
‘common consciousness’ irrational and non-metaphysical in character. Moreover, with
Darwin’s‘Origin of Species’ (1860) and Herbert Spencer’s ‘Social Statics’ completely destroyed
the very roots of natural law theory. It is rightly remarked, that ‘the abandonment of natural law
marks the rise of modern jurisprudence assumed new forms which had not been possible so long
it was so connected and inter connected and inter-linked with natural law. In short, natural with

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its foundation on higher values like idealism, morality, justice, reason, etc. were discarded and
rejected as ineffectual, unreal, unhistorical and non-scientific. The 19th century complex
problem needed practical and realistic approach which natural law theories could not resolve
hence legal theory adopted scientific direction and positivistic approach which culminated in
analytical and historical approaches that had full sway and sweep in society. Thus separation
between ‘is’ and ‘ought’, law and morality, law and justice and fact and value was complete and
the search for higher values and ideals over and above the positive law had come to an end
reducing law to a set of rules laid down by some authority obliging others to obey irrespective of
moral or ethical norms, purposes or considerations.

Reaction against Positivism:

(Twentieth Century – Natural Law Revival)
However, both the analytical and historical approaches proved disastrous to the cause of justice,
liberty, freedom and democracy in the 20th century. Too much insistence on positivism devoid
of ideal and moral elements made it barren and soulless leading to conflicts, injustice no longer
suited to the new expectations and aspirations of the individuals. The historical school with its
overemphasis on cultural and racial character of legal system paved way to Nazism in Germany
and Fascism in Italy and Japan responsible for First and Second World Wars. Simultaneously the
perpetuation of economic disparities within and societies gave rise to acute social and economic
tensions which required urgent solutions. All these factors made it amply clear that Austinian
positivism and Savigny’s ‘Volksgeist’ no longer can fulfil the claims of justice nor people were
willing to accept the separation of between law and morality as sought by both the schools. Thus
a tendency revived among people to seek criteria or standards outside the governmental organs
with which to measure justice and fair play. The revival of natural law in the 20th and 21st
centuries is not wholly in old form. The sweep of new natural law is quite broad embodying
standards which are value oriented conditioned by time and place. The new natural law is
value-loaded, value-oriented and value conscious and is relativistic not absolute, changing and
varying and not permanent and everlasting in character.

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The principle exponents of new revived natural law are many but only a few are discussed
herein.
Rudolf Stammler (1856-1938)
Stammler was a Professor of Roman Law in various Universities and had succeeded Josef
Kohlar as Professor of Law in Berlin University and attained distinction of being a neo- Kantian.
Like Kant he rejected the natural lawyer’s identification of positive law with just law recognizing
clearly that positive law is binding independently of its goodness or badness and that study of it
is a concern of legal science. Like Kant he also separates justice from the ethical good, the
former is concerned only with external conduct the latter with inner conduct of the individual.
However, he differs from Kant’s fundamental principle of ‘Categorical Imperative’ that a just
rule must be capable of universal application. Foe Kant had stated his ‘Categorical Imperative’ in
terms of conduct of each free-willing individual harmonious with that of all others. For Stammler
it is with the ideal of society that individual conduct must harmonious. The second departure is
in Stammler’s relativism. As early as in 1896 he insisted in his ‘Wirtchaft’ and ‘Recht’ that
while the ideal of justice was absolute its application varies constantly with the time and place
what he described as ‘natural law with achanging content’ and set out on the search for such a
‘relative’ natural law. He ridiculed the efforts of setting out a body of unchangeable valid rules
of universal application and proclaimed that there cannot be universal rules because content of
such rules is empirically conditioned and changing with changing times and situation – what he
called ‘the natural lawwith a variable content’ . In other words, everything that his reference to
human wants, and to the manner of satisfying them is merely empirical and is subject to constant
change. There is not a rule of law whose positive content can be fixed a priori.
The main theme of his theory of natural law is to provide a standard for determining the justice
of a given law. According to him ‘all positive law is an attempt at just law’. He says, the
purpose of law is not to protect the will of one but to unify the purposes of all. The law of nature
means to him a ‘just law’ and a ‘just law’ is that which harmonises the purposes within the
framework of social life. Thus law has to be relativistic not absolute in relations to changing
circumstances of particular times, places and societies. It has so far as possible to be objectively
just although it may feel short of the ideal of the absolutely just law and has to arrive at a

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relatively just compromise called ‘the natural law with a variable content’. His concept of law,
the idea of just law (vorbild) and the idea of special community all involve harmony between
individual and community purposes and the participation of each of the achievement of common
purposes and thus establishment of justice based on twin principles wherein the individual
remains an end in himself along with duty of care and consideration towards neighbours in
society.
Joseph Kohler (1849-1919)
Joseph Kohler, a disciple of Hegel vehemently protests against materialistic legal interpretation
as that of Ihring. He is like Sir Henry Maine historical and evolutionary in outlook. Kohler says:
“A unity of spirit rules mankind and evolutionary forces its way out of universal
substance………….Materialism is dead the philosophy of spirit lives”.
He again says, ‘Mankind constantly progresses in culture in the sense that permanent cultural
values are produced and law becomes a means to serve and advance cultural values. However,
Kohler is convinced of Stammler’s of natural law with variable content. He says, ‘There is no
eternal law. The law that is suitable for one period is not so for another period, we can only
strive every culture with its corresponding system of law.'
As a neo-Hegelian, Kohler defined law as, “the. standard of conduct which in consequence of
the inner impulse that urges upon men towards a reasonable form of life, emanates from the
whole, and is forced upon the individual”. He says that there is no eternal law and the law
shapes itself as the society advances morally and culturally in course of evolution. He tried to
free the nineteenth century natural law from the rigid and a priori approach and attempted to
make it relativistic, adapting itself to the changing norms of the society.
Another twentieth century natural law natural law as a set of principles of practical
reasonableness in ordering human society. He emphasised on six values namely
(1) life,
(2) knowledge, that is perfect truth over false,
(3) performance,
(4) appreciation for beauty,
(5) practical reasonableness in shaping one’s own character; and

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(6) religious freedom.
The function of law according to Finis is to promote these values and ensure justice and order in
the society.
Important Questions:
Q.1: Discuss the main characteristics of Natural Law.
Q,2: “Natural law consists of the principles which are based on logic and reason.” In the light
of this observation, discuss the development of natural law in brief and point out its application
in the Indian Legal System.

(3) Analytical Positivism

Analytical Jurisprudence is the general name for the approach to Jurisprudence which concern
itself mainly with classification of legal principles and rules and with analysis of the concepts,
relationships, words and ideas used in legal system such as Person, Obligation, Right, Duty, Act,
etc. It is mainly associated with Positivism, the approach to law which concerns itself with
positive law i.e. legal system and rules actually in force distinct from ideal systems or law which
should be. Analytical Jurisprudence though fore-shadowed by Thomas Hobbes, is chiefly
associated with Jeremy Benthamand John Austin. It has been extensively developed in England
notably by Markby, Holland, Salmond, Hartetc. in the continent by Hans Kelsenand U.S.A.
mainly by John Chipman Gray, Oliver Wendell Holmes,etc.
POSITIVISM – Explained: The difference in perception between the normative (natural) and
positivist (factual) notions of law in Jurisprudence is mainly a 19th century phenomena. The
normative notion attempts to study law from philosophical, abstract and ideal angel e.g., with
reference to Nature, God, Reason or Conscience – all of which are beyond and independent of
human power, control or authority. It is these ideal notions which explain what is good or what is
evil, or what is right and what is wrong. The positivist methodology of studying law is
essentially antithesis of normative notion of law as it asserts of being realistic, scientific,
investigative and empirical in its approach to law. It rejects the subjective-cum-moral or a priori
tests and claims to be real, logical and scientific in the study of law as it is rather than as it ought
to be. It attempts to apply purely objective or logical tests for the existence of law on the touch-

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stone of fact- situation. A positivist refuses to rely on revealed or assumed hypothetical
assumptions of law. Indeed the positivist approach basically emerged as a revolt against the
methodology of abstract thinking and expressed its dissatisfaction against a system of law
dominated by incoherence, uncertainty, confusion and fallacies. Its basic theme is logic,
consistency, certainty, clarity and above all a strict separation between is and ought the former
being proper subject matter of jurisprudence and latter being rejected outside the realm of
jurisprudence what Bentham described as ‘science of legislation’.
The term ‘positivism’ has many meanings, which are tabulated by Prof. Hartas follows: Laws
are commands;
The analysis of legal concepts is – (a) worth pursuing; (b) distinct from sociological and
historical inquiries;
Decisions can be deduced logically from predetermined rules without recourse to social aims,
policy or morality;
Moral judgments can’t be established or defended by rationale, argument, evidence or proof; and
The law as it is actually laid down has to be kept separate from the law that ought to be.
Positivism flourishes in stable conditions. The difficulties of maintaining a right separation
between ‘law what is’ and ‘what ought to be’ come to light in turmoil.

Jeremy Bentham (1748-1832)

Jeremy Bentham laid down the foundation of positivism in the modern sense of term. He was a
ferment champion of codified law and of reforming English law, which was, according to him, in
utter chaos. He distinguished between ‘expositional jurisprudence (what the law is) and
‘censorial jurisprudence (what law ought to be) or the art of legislation’. The main function of
the former was ‘to evaluate law’, while that of the later ‘to analyse law’. In seeking answers to
the questions {what is a penal code of laws? /What is a civil code? }, he had to investigate the
nature of law, which led to him into a maze through which he mapped out a path of laws in
general. This was finished more or less in 1782, but remained unpublished till 1939 when Prof.
Everett disinterred it and published under the title “The Limits of Jurisprudence Defined” in

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1945. A revised edition was published as “Laws in General” in 1970 under the editorship of
Prof. H.L.A. Hart.
Benthamgave the ‘Principle of Utility’, which says, “Only those laws are important, which
give maximum happiness to the maximum number of people”. Those laws, which are not
giving maximum pleasure and giving maximum pain to the people, ought to be removed. He also
gave “Hedonistic Calculus, which is the imaginary principle to judge pleasure and pain of any
law”.

John Austin (1790-1859)

John Austin, who was a Prof. in London University, is the founder of the Analytical School. He
is considered as the father of English Jurisprudence. He was elected to the chair of Jurisprudence
in the University of London in 1826. Then he proceeded to Germany and devoted some time to
the study of Roman Law. Austin, a disciple of Bentham, is a positivist and concerned with “what
law is” and ‘not what law ought to be’. ‘Positive’ means ‘as it is’.
The first six (6) lectures of Austin were published in 1832 under the title “The Province of
Jurisprudence Determined”, while rest were published posthumously in 1861. He avoided
metaphysical method, which is a German characteristic. The method, which Austin applied, is
called analytical method and he confined his field of study only to ‘positive law’. Therefore, the
school founded by him is called by various names- ‘Analytical’, ‘Positivism’, and ‘Analytical
Positivism’. Prof. Allenthinks it proper to call the Austin’s school as “Imperative School” on
the basis of its conception of law, i.e..‘Law is Command’.
For Austin, the matter of jurisprudence is “positive law”; “law simply and strictly so called” or
“law set by political superiors to political inferiors”.He believed that ‘Law’ is only an ‘aggregate
of laws and defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him”. To him law is the command of a sovereign requiring
his subjects to do or forbear from doing something. There is an implied threat of ‘sanction’ if the
command is not obeyed.

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He distinguished between ‘laws properly so called’ and ‘laws improperly so called’. The former
are general commands addressed to the community at large and enjoined classes of acts and
forbearance. They are divided into laws set by God / divine law / law of God and laws set by
men to men. Laws set by men to men also fell into two categories – the first consisted of ‘laws
set by political superiors to political inferiors’. This was termed by Austin ‘positive law’ or ‘law
simply and strictly so called’ and was, to him, the subject matter of jurisprudence.
Thus, ‘law properly so- called’ must have three elements –
(i)Command,
(ii)Sanction and
(iii)Sovereign.
The second category consisted of ‘laws set by men to men neither as political superiors nor in
pursuance of rights conferred upon them by such superiors’, e.g., ‘those set by a master to a
servant or the rules of a club. They are still laws properly so called because they are commands,
but he distinguished them from positive law by giving them the term ‘positive morality’.
Analogous to the laws of the latter class are a number of rules to which the name “laws
improperly so called” is given. They are opinions or sentiments of an indeterminate body of men
and laws of fashion or honour. He places international law under this class. In the same way,
there are certain other rules which are called law metaphorically – laws of nature. They are laws
improperly so called.
‘Positive Law’ (law simply and strictly so called or law set by political superiors to political
inferiors) is the only proper subject matter of jurisprudence. Jurisprudence is the general science
of positive law.
Laws properly so called are species of commands. But being a command, it flows from a
determinate source or emanates from a determinate author. For whenever a command is
expressed of intimated, one party signifies a wish that another shall do or forbear and the latter is
obnoxious to an evil which the former intends to inflict in case the wish isdisregarded. The key
to understanding law properly so called lies in duty which is created by the command of a
sovereign. Duty and sanction are co-relative terms – whenever duty lies, a command has been
signified and whenever a command is signified, a duty is imposed

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In a nutshell, by law, Austin means command, sanction and duty (C+S+D), which are
inextricably linked and can’t be separated. There are three kinds of laws, which, though not
command, are still within the province of jurisprudence:
(i)Declaratory of Explanatory Laws: Austin does not regard them as commands because they
are passed only to explain laws already in force, e.g., General Clauses Act.
(ii)Laws to Repeal Laws: These too are not commands but are rather the revocation of a
command. They release from duties imposed by existing laws and are named permissive laws.
(iii)Laws of Imperfect Obligation: These laws have no sanction attached to them. Thus, there is
a duty, but in case of non-compliance, there is no sanction.
Criticisms of Austin’s Theory:
1. Customs ignored: For Austin, law is the command of sovereign. In the early times, not the
command of superior, but customs regulated the conduct of the people. Even after coming of
State into existence, customs continued to regulate the conduct. Therefore, customs should also
be included in the study of jurisprudence, but he ignored them. Customs have been in existence
since old times. Customs have also be an important source of law. As per Austin, customs can
only be a law if the sovereign accepts them as law, while customs provide the basis on which the
law can be based. Thus, even if the sovereign does not recognise them as law, customs have
always be an important source of law and can’t be ignored.
(ii)Judge-made law: There is no place for judge-made law. In the course of their duty (while
applying precedents and interpreting the law), judges make law. Though an Austian would say
that judges act under the powers delegated to them by the sovereign, therefore, their acts are the
commands of the sovereign. However, in modern times, judges perform a creative function and
Austin’s definition of law does not include it.
(iii) Command theory untenable: Command presupposes a commander. No indeterminate party
can command, expressly or tacitly or can receive obedience or submission. The question is
whether he can be discovered, who might be regarded as having commanded the corpus of law.
In democratic system, it is not possible that one person commands.

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(iv)Sanction is not the only means to induce obedience: As per Austin, it is the sanction alone
which induces the man to obey law, while it is open to criticism from many points of view as
there are many other considerations such as reasoning, logic, love etc. due to which people obey.
(v) International Law: Austin put International Law under positive morality as the law of
honour and law of fashion. The so-called law of nations consists of opinions or sentiments. It,
therefore, is no law properly so called. The main ingredient of law lacking in International Law
is sanction, but this alone will not deprive from being called law. Now-a-days, International Law
is playing an important role and thus it can’t be totally negated. Hence, nobody will accept that
International Law is not law. Therefore, according to Austin, a very important branch of law
shall be excluded from the study of jurisprudence.
(vi) Relation of Law and Morals Overlooked: To Austin, law isn’t concerned with morals but
this isn’t correct preposition. Law is not an arbitrary command, but it is a growth of an organic
nature. Moreover, law has not grown as a result of blind forces, but it has been developed
consciously and has been directed towards a definite ends. It isn’t completely devoid of ethical
and moral elements. Any law, which is devoid of ethics or morality can’t withstand the test of
time. People don’t accept it whole heartedly because of it being unethical. Hence, morals have
always be an integral part of law.
(vii) Other Laws Ignored: Austin does not cover procedural laws, e.g.,Civil Procedure Code,
etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity
Act, etc.
Applicability of Austin’s Theory in India:
(1) We don’t have a legally unlimited or indivisible sovereign. Our Constitution is supreme,
though it can be amended, but basic structure can’t be.
(2) Though there is separation of powers, yet sometimes judiciary makes law (Article-141 –
Vishakha’s case and D.K. Basu’s case)
(3) Ordinance making power of the Governor and the President (Article – 123 and 213):
(4)We have quasi-federal system. Though the President has the supreme power, but the same is
exercised by the Prime Minister.

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(5)Directive Principles of State Policy (DPSP) are not positive law as per Austin. Though DPSP
are not justifiable, yet they are important as they govern the guidelines for the society. Thus, the
principle of ‘is’ and ‘ought’ fails.
Comparison of Bentham and Austin:
(i)Bentham provided a deeper and more adaptable theory. His concept of sovereignty was
flexible as it avoided indivisibility and illimitability. He was, thus, able to accommodate the
division of authority between organs as in a federation or division in certain areas as well as
restrictions of authority
(ii) His concept of law was broader than Austin’s. He avoided the absurdity of “law properly so
called”.
(iii) His sanction was both wider and less important than Austin’s sanction. Laws are still laws
even though supported by moral or religious sanctions or they may be accompanied by rewards.
He, thus, had no need to resort to a sanction by nullity.

H.L.A.Hart’s Concept of Law:

Prof. H.L.A. Hart, a British Philosopher and an eminent jurist, is considered as the significant
exponent of Analytical Positivism. Hart in his vital contribution, “The Concept of Law” (1961)
has expounded his legal theory as a system of rules by exploring the relationship between law
and society. His main objective is to further explain understanding of law, coercion and morality.
According to Hart, the law is a system of rules. Two types of rules are “Primary and
Secondary”. Hart rejects Austin’s theory that rule is a kind of command and substitutes a more
elaborate and general analysis of what rules are. Hart observed, “Union of these two types of
rules is the most powerful tool, which will lead to proper general analysis of the situation
created by Austin’s definition of law.
Primary rules are those that impose duty upon individuals and are binding because of practices of
acceptance which people are required to do or abstain from certain actions. In other words
Primary rules impose duties obligations on individuals in primitive community. Due to social
control, such community suffers from three defects – uncertainty, static character and
inefficiency. The stage of primitive community requires proper modification to make the social

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structure more effective, efficient and certain. This gives rise to Secondary and introduction of
Secondary rules (power conferring rules enabling legislations to determinate when the rules
have been broken) is described as step forward as important to society as the invention of the
wheel. He emphasized that “Law is a union of Primary and Secondary rules and, thus, it is
born in the society. Under Primary Rules, human beings are required to do or abstain from
certain actions, whether they wish or not. Secondary rules are in a sense parasitic upon or
secondary to Primary rules. While a Primary rules impose duties, Secondary rules confer
powers.”
While Primary Rules concerned with the actions which the individuals must or must not
undertake, the Secondary Rules specify the ways in which the Primary Rules may be
conclusively ascertained, introduced, eliminated, varied and the fact of their violation
conclusively determined.
According to Hart, a rule is:
(i)Something, which creates obligation and simultaneously
(ii) A standard by which one can judge whether rule is right or wrong.
Defects of primitive society / regime of Primary Rules of Obligation:
(i)Uncertainty about what are primary rules of obligation.
(ii)Static Character, i.e., new rules are not created and old ones are not repealed.
(iii) Inefficiency of the diffused social pressure by which rules are maintained. There is a
question of who will ascertain finally and authoritatively if a rule has been violated or not or in
case of conflict between two rules.
The remedy for each of these three defects consists in supplementing the Primary Rules of
Obligation with Secondary Rules, which are rules of a different kind – recognition, change and
adjudication (RCA).
The removal of defects will transform a primitive society, i.e., a pre-legal society into a
developed society, i.e., a legal society. If we consider the structure which results from the
combination of PRO (Primary Rules of Obligation) with the Secondary Rules of RCA
(Recognition, Change and Adjudication), we have a systematic legal system to meet the
requirements of the society.

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Rule of Recognition as an ultimate rule:
The ROR, which provides the criteria by which the validity of other rules of the system is
assessed, is an ultimate rule. ROR gives validity to PRO (Primary Rules of Obligation) but there
is no rule which provides criteria for the assessment of the validity of the ROR itself. The
validity of the ROR can’t be questioned; such questions are invalid questions. However,the
existence and validity of the ROR need not be presupposed as is the case with Kelsen’s Ground
norm. Hart’s ROR is positive.
According to Hart, there are two minimum conditions necessary and sufficient for the existence
of a legal system:
(i)PRO, which are valid according to the ultimate ROR, must be generally obeyed; and
(ii) ROR, which specifies the criteria of legal validity and ROC (Rule of Change) and ROA
(Rule of Adjudication), i.e., SRO must be effectively accepted as common public standards of
official behavior by its officials.
While the first contention is one which only private citizens need to satisfy, the second condition
must be satisfied by the officials of the system. The officials should observe ROR from internal
as well as external point of view, while the private citizens need not have an internal point of
view.
External View: It is taken by those who are concerned with the rules merely as an observer who
does not himself accept them. They are concerned with the rules only to the extent that any
violation of the rules invites sanctions, “I was obliged to do it. I am likely to suffer for it if ….”
Internal View: It is taken by those members of the society who voluntarily accept the rules and
uses them as guides of their own conduct and as a criterion to evaluate other people’s conduct.
Criticism / Difference with Austin:
The foundation of Hart’s theory of law is made of the critical evaluation of Austin’s theory of
law.
(i)Hart said that Austin has talked about society and not a legal system.

37
(ii)He said that Austin failed to acknowledge that the laws are applicable not only to the general
members of the society, but also to the sovereign members of the society in their role as
individual citizens.
(iii) All the laws are not coercive commands. There are other varieties of law, such as laws
conferring legal powers to adjudicate (public powers) or legislate or to create or vary legal
relations (private powers).
(iv) There legal rules like customs, which Austin completely ignored.
(v)The analysis of law in terms of the sovereign, habitually obeyed, failed to take into account
model legal system.
(vi) While Austin’s command merely predieis the obligation, Hart’s rule actually constructs the
obligation.
(vii)In place of Austin’s monolithic model, Hart suggests a dual system consisting of two types
rules- which he described as PRs &SRs.
(viii)Hart said that the judges have limited discretion, but, in fact, the judicial discretion
must be conceived in positivism permitting judges to look outside law for standards to guide
them while deciding cases.
(ix)Austin & Kelsen condemned natural law, but Hart considers that it is necessary for law or
morality to have certain content of natural law. Rules of morality are implicit in Hart’s system of
law of PRs. SRs.
(x) For Prof. Dias, distinction between a legal and pre-legal state of affairs is not at all clear.
There is difficulty in finding ROR. He also questioned the sharp distinction between rules
creating duties & rules creating powers as a legal system is constituted by their union.
The idea of obligation: The Gunman situation: ‘A’ orders ‘B’ to hand over his money &
threatens to shoot him if he doesn’t comply.
According to Austin, it illustrates the notion of obligations or duty in general, ‘A’ must be the
sovereign habitually obeyed & the orders must be general prescribing courses of conduct and not
single actions. Here, the meaning of obligation lies in the fact that ‘B’ if he obeyed was obliged
to hand over money.

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‘B’ had an obligation or duty to hand over money. But there is difference between the assertion
that someone was obliged to do something & the assertion that he had an obligation to do it. The
first is often a psychological statement about the beliefs & motives. Hart says that it can be said
that ‘B’ was obliged to hand over his purse, but it can’t be said that he had an obligation to do
that.
A person had an obligation, e.g. to tell the truth or report for military service. The statement that
he had an obligation is quite independent of the question whether or not he in fact reported for
service; the statement that someone was obliged to do something normally carried the
implication that he actually did it.
Hart has made further contributions on Austin’s approach to law as also his research has
provoked many other jurists from European Countries to develop & critically examine his ideas
thereby enriching the Analytical Jurisprudence.

Kelsen’s Pure Theory of Law:

Kelsen was a Prof. of Jurisprudence in Vienna University, Austria. He owes his fame mainly due
to his ‘Pure Theory of Law’. According to him, ‘a theory of law must deal with law as it is
actually laid down not as it ought to be’. Kelsen advocated that ‘a theory of law should be
uniform and it should be to all time & in all places. A theory is something, which has
universal application’. In order to make his theory to have universal application. In order to
make his theory to have universal application, he desisted from including the elements of
sociology, politics, economics, history or other disciplines because they are subject to variation
from one place to another & from one time to another. Thus, he devised a pure theory, which
would have the ingredient of only one discipline, i.e. law & totally devoid of sociology, political
science, economics, etc.
He insisted that a theory of law must be free from ethics, politics. Sociology, history etc. Though
their value is not denied, but Kelsen insisted that a theory of law must not have such
considerations. There must be a pure theory of law. It is for this reason that Kelsen refused to
define law as a command of sovereign, as Austin stated, because that introduces subjective &
political considerations. He wished his science to be really objective.

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For Kelsen, law is normative and not a natural science based on cause and effect. It is a norm
that directs an official to apply force under certain circumstances. Thus, his theory of law is a
theory of positive law.
Every body of facts has two distinguishable elements:
(i)External manifestation of human conduct that is perceived by our senses.
(ii)The legal meaning of this act, i.e., the meaning conferred upon the act by the law.
e.g.,people assemble in a large room, make speeches, some raise their hands, others don’t. This is
the external manifestation of the fact. Its meaning is that a statute is being passed, that a law is
being created.
Every manifested act is subject to two meanings – subjective and objective meaning, e.g.,
somebody makes some dispositions stating in writing what is to happen to his belongings when
he dies. The subjective meaning of this act is a testament. Objectively, however, it may not be a
testament due to non-observance of some legal formalities, etc.
Difference between Austin and Kelsen:
(i)The view of Austin is that law is a command backed by a sanction. However, Kelsen rejects
the idea of command as it introduces a psychological element into a theory which should be
pure.
(ii)To Austin, ‘sanction’ is something outside the law which imparts validity to law. ‘ought to’
can’t be derived from any fact outside the law.
(iii)To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards, etc.
are all norms in addition to the command.

Norm and Ground norm:

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behavior. In other words, norm
is the meaning of an act of will by which certain behavior is commanded or permitted or
authorized. Legal norms always belong to the realm of the ‘ought’. It is different from moral
norm. The ‘ought’ in the legal norm refers to the sanction to be applied to contra-legal behavior.
In this process, Kelsen achieved two objectives:
(i)he removed the natural law and moral or ethical criteria from the concept of positive law; and

40
(ii)it also enabled him to solve the problem – how a norm can be said to be valid in case of
illegal behavior.
‘Ground norm’ or the basic /fundamental norm is the initial hypothesis upon which the whole
system rests. The ‘Ground norm’ is the justification for the rests of the legal system. It is
essential that it should command a minimum of support. When it ceases to be the basis of the
legal order, it is replaced by some other ‘Ground norm’ which obtains the support of the people.
The Ground norm is the starting point for the philosophy of Kelsen.
A legal order is comprised of norms placed in a hierarchical manner – one norm placed above
another norm and every norm deriving its validity from the norm above it. The hierarchy takes a
pyramid form and symbolizes the legal order. The highest norm in the hierarchy is called the
basic norm or the Ground norm.
Basic Norm / Ground norm:
The function of ‘Ground norm’ is to give objective validity to positive legal order, i.e., it is the
common source for the validity of all norms that belong to legal order. Kelsen offered no
explanation about the source of validity of the ‘Ground norm’. He just presupposed that the
‘Ground norm’ is valid. Kelsen stated that ‘Ground norm’ need not be the same in every legal
order, but a ‘Ground norm’ of some kind will always be there. The basic point is that those who
are in effective control ought to be obeyed.
The following various features of ‘Ground norm’ will illustrate the reason for its position in
pyramidal structure:
(i)Ground norm’ is not the positive norm or rule of law, but is an extra-legal or non-legal norm
as it is not derived from any higher norm.
(ii)It itself is not valid or invalid; it is an assumption or a jural postulate.
(iii)It only empowers and does not impose sanctions.
(iv)It validates the rest of the legal system/order.
(v)The pre-supposition of basic norm is based upon effectiveness.
(vi)Basic norm is the pre-supposed starting point of the procedure of creation of norms.
(vii)It gives validity to norms, but does not give content to norms.

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Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize that
jurisprudence must study the relationship between law and justice, but Kelsen wished to free
the law from the metaphysical mist of justice, material of social science and natural law. He also
refused to follow Austin’s view (law is a command of sovereign) as it introduces subjective and
political considerations in the concept of law. He insisted that the sole object of the study of
jurisprudence is the nature of norms or standards which are set up by law.
For him law & state are really the same thing viewed from different aspects. A legal order
becomes a state when it has developed organs for creation, declaration and enforcement of law.
Kelsen specially emphasized that the relation between state and law are inter-connected and
traditional approach can’t continue in the emerging conditions of the society. But the practical
importance of Kelsen’s approach is that he emphasized that law is a more fundamental notion
than that of state. While it is true that law can’t exist without a legal order that order may take
forms other than that of the state. Hence, Kelsen’s theory is wider and, therefore, more,
expectable than that of Austin.
An important feature of Kelsen’s doctrine is that the state is viewed as a system of human
behavior and an order of compulsions. Thus, only relatively centralised legal orders are states.
Kelsen also applied his theory of pure science of law to the system known as ‘International
Law’, but revealed many limitations. The pure theory requires that ‘Grundnorm’ be discovered.
What Kelsen said that the ‘Grundnorm’ should command a minimum of support. There are two
possible ‘Grundnorm’ in Intl. Law –(i) The supremacy of each system; and (ii) the supremacy
of intl. law. Every national legal order can recognize any norm superior to its own Groundnorm
In view of Prof. Dias, it may be the principle of ‘pacta sunt servanda’ and with reference to intl.
law, The ‘Grundnorm’ is a pure supposition unlike that of municipal law.
Kelsen didn’t regard the distinction between public and private law. He stated that contract may
play as great a part as public law. To him, law may be made either by a parliament, a judge or a
private citizen. Thus, a contract executes a superior norm and creates a binding obligation.
Kelsen believed that ‘reason’ could derive one form from another, but that reason would not
create an original norm, i.e. ‘Grundnorm’/one which was not derived from another.

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Criticisms:
(i)The basic norm is a very troublesome feature of Kelsen’s system. It is not clear what sort of
norm this really is, nor what it does, nor where we can find it (per Lord Lloyd)
(ii)Kelsen did not explain the existence of the basic norm on which the whole legal system was
founded by him (per Prof. Goodhart)
(iii)As regards the quality of purity, for all purposes, it is dependent on the basic norm. Since that
basic norm itself is the most impure, the subsequent operations must reproduce that original
impurity in the inferior norm, thereby making the whole system impure.
(iv)The reasons for the validity of a norm can only be the validity of another norm-total
pre-supposition.
Conclusion: Kelsen’s legal theory is an original piece of research, which has successfully made
a vital contribution to jurisprudential thought. His view regarding norms, right, state, public and
private law, have received wide appreciations from various academicians and jurists. His
analysis about legal order is thought-provoking. Being original and creative piece of research, it
was bound to encourage contemporary jurists, eminent judges and philosophers to react and raise
many questions for further clarification and research.
Though Kelsen emerged 1oo years after Austin, due to lack of development of communication
channels, he was totally unaware of Austin’s theory. Hence, Kelsen viewed positivism from an
angle different from that of Austin. Resultantly, it can’t be said that Kelsen’s Pure Theory of Law
is an improvement upon Austin’s Command Theory.
However, complete diversity is not possible within the same discipline and there were
similarities between Kelsen’s and Austin’s approach to the extent that they both:
•took law as it is;
•talked of fact as it exists;
•were positivist;
•were analysist; and
•were imperative thinker;

Important Questions:

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Q.1: “Law is a command of Sovereign.” Austin. Discuss. Do you agree with the view that
Austinian definition of law is not suitable for a modern democratic state which has a written
Constitution?
Q.2: Critically explain the Imperative Theory of Law.How far do you agree that it is unethical
and inadequate?
Q.3: Kelsen “wishes to free the Law from the metaphysical mist which it has been covered at
all times.” Discuss.
Q.4: Explain fully Kelsen’s Pure theory of Law. Is it correct to say that this theory has left dry
bones of law deprived of flesh and blood which give them life?

(4) Historical School of Jurisprudence

During the 18th century the innate assumption of the natural law jurists has been a system of law
which was founded on intuitive human conscience or abstract human Reason. Such a law being
like brooding omniscience was considered to be universal, permanent, unchangeable and static in
nature. Likewise during the 19th century in England analytical positivists too constructed a
soul-less barren sovereign-made-coercive law devoid of moral and cultural values- described as
‘gun-man-situation’. These two models were not only unhistorical and devoid of historic values
and traditions but both of them unabashedly repudiated and rejected all laws of historical growth
and historical nature e.g., customs, traditions, mores ,myths etc., which furnishes a society with
unity in experience and continuity in time. Indeed such evolutionary laws of a community which
pass on from one generation to another generation, link its past with present and intimately
bound people with their shared historical heritage and culture – were ignored and rebuked both
by natural law and analytical jurists. Hence, a strong reaction and revolt developed against the
unhistoric and sterile character of law expounded both by natural law thinkers and as well as
analytical positivists. Historical jurisprudence, therefore, viewed law as a legacy of the past, a
product of each individual community or people or nation embodying and reflecting its peculiar
traits, unique customs, special habits and other peculiarities which are deeply rooted in its
heritage and culture.

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 The Historical school considered law in direct relationship to the life of the community and thus
laid the foundation on which the modern sociological school was built. The main exponents of
this school were Edmund Burke, Savigny, Puchta, Gustav Hugo, Sir Henry Maine,
Vinogradoff and Sir Fedrick Pollock. The Historical school in part was a result of that surge of
nationalism that arose at the end of the 18th century. The individual, writers began to emphasize
the spirit of the people, the Volksgeist. In 1814 a programme for the school was enunciated by
SAVIGNY. The central question was how did law come to be? Law evolved as did language, by
a slow process and just as language is a peculiar product of a nation’s genius, so is the law. The
source of law is not the command of sovereign, not even the habits of a community, but in
instinctive sense of right possessed by every race. Custom may be evidence of law, but its real
source lies deeper in the minds of men. ‘The living of law is the secret of its validity. In those
matters with which he is directly concerned every member of the community has an instinctive
sense as to what is right and proper, although naturally hewill have no views on matters which
are beyond his experience. Thus the mercantile community will have no intuitive appreciation of
the rules that should govern bills of exchange, a peasant of the doctrines that should be applied to
agriculture. Such is the approach of the Historical school, and it naturally led to the distrust of
any deliberate attempt to reform the law. Legislation can succeed only if it is in harmony with
the internal convictions of the race to which it is addressed if it goes further, it is doomed to
failure.
The rise of Historical school of jurisprudence may be traced to many causes. The first is the
reaction against the unhistorical assumptions of the natural law theorists. Secondly, the attempt
to find legal systems based on reason without reference to past or existing circumstances was
revolutionary in execution. The culmination elf it was the French Revolution. Thirdly, the French
conquests under Napoleon aroused the national is Europe. FoulILly, the French also spread the
idea of codified law, and as a reaction to anything, which French carried with them an aversion
to the code was the result.
The term “Historical jurisprudence” is usually associated with the particular movement in legal
thought of which Savigny is its famous exponent and Maine is its supporter.
Characteristics features of the Historical School of jurisprudence:

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(i) Law is born in the society as language is born.
(ii) Law develops with the evolution of society.
(iii) Law dies with the destruction of society.
(iv) Custom is main source of law. Custom is ipso facto law.

Savigny (1779-1861):
It would, therefore, be appropriate to have some background idea of Savigny and of the times
that was responsible for the emergence of historical school of jurisprudence especially in
Germany. Friedrich Karl Von Savigny (1779-1861) born at Frankfurt in 1779 of French
protestant lineage was orphaned at the age of 13 and was educated by his guardian Neurath, a
lawyer by profession. He was given education and learning in the mysteries of natural law of
‘Christian Wolf’ and ‘Vattel’ of international law and of Roman Law and German law in a
stereotyped manner. With this early reactions and exposures he studied at the universities of
Marburg, Gottingen and especially in the latter he had the new taste of historical stirrings,
methods and historical curiosity. From 1801 to 1804 he was professor of Civil Law at the
University of Marburg and then at the University of Landshut.
His work on ‘Law of Possession’ (Das React des Bestiges) appeared in 1803 and with it
according to Ihering new historical jurisprudence is said to have been born. His other works are:
‘The History of Roman Law in Middle Ages’ in six volumes (1815-1831), ‘System of Modern
Roman Law’ (1840-49) and ‘Contracts’ in 1853. In short, Savigny continued to devote himself in
the study of jurisprudence till 1861 when he died at Berlin – a year after the publication of
Darwin’s‘The Origin of Species’. Dr. Allen described Savigny as ‘Darwinian before Darwin’
for his contribution to apply the evolutionary principle to the development of legal system.
Savigny’s Vocation and Volksgeist:
In his monumental work ‘Vocation’,Savigny strongly and persistently attacked and condemned
Thibaut’s proposals on two scores. First, according to Savigny, Thaibaut’s plan betray lack of
historical and evolutionary nature and perception of law. For, a law made without understanding
of a community’s deep roots of history and culture is likely to create more problems and
difficulties than resolve. Further, the ‘French Napoleonic Code’ with all its defects,

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incongruities, inconsistencies and above all unhistoric in character cannot be a good model for
German people. Second, law is not an artificial, arbitrary, lifeless mechanical device designed by
master jurists to be imposed from above. It is on the other hand, a complex, silent and invisible
but dynamic experience manifesting itself in the ‘common feeling of inner necessity’ with which
people regard it. Law is essence is coeval with society like its language, literature, grammar, folk
music, folk culture, etc. Law with spontaneity through internal development evolves and changes
in the same fashion and direction as society evolves.Hence, the law of any particular society is
the embodiment and reflection of the spirit of a people united by common language, custom,
feelings and common past, who evolve and procreate law. Thus the growth and evolution of law
(recht) has no dependence upon individual arbitrary will or accident. Law ‘Recht’ is begotten in
the people Volk by popular spirit (Volksgeist). Law has its source, existence and validity,
according to Savigny, in the popular consciousness and inner feelings and its customary
observance is not the cause of law but the evidence of its existence.
Summing up his theory of ‘Volksgeist’Savignyremarked:
“The earliest time, to which authentic history extends, the law will be found to have already
attained a fixed character, peculiar to the people like their language, manner and constitution.
Nay these phenomena have no separate existence, they are but the peculiar faculties and
tendencies of an individual people, inseparably united……That which binds them into one whole
is the common conviction of the people. The kindred consciousness of an inward necessity
……. Law grows with the growth and strengthens of the people and finally dies away as a
nation loses its nationality ……the sum, therefore, of the theory is that all law is originally
formed in the manner in which……language, customary law is said to have been formed, i.e. it is
first developed by custom and popular faith, next by jurisprudence, everywhere, therefore, by
internal silently operating powers, not by arbitrary will of a law-giver.”
The main features of Savigny’s Historical School as summed up by Fridmann are:
(i)law is discovered or found and cannot be artificially invented or made;
(ii) law is fundamentally organic and developmental in character which can be found both in
primitive and modern communities in varying forms popular consciousness and beliefs, customs
and traditions, habits and practices which finally contribute to people’s law or Volksgeist;

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(iii) law is sui generis- peculiar to a people like its language and heritage- a manifestation of its
national ego or spirit- so law cannot be of universal validity.
Savigny’s Contribution- Evaluated:
The greatest contribution of Savigny has been that he interpreted jurisprudence and law in terms
of people’s will- the Volksgeist and thus sowed the seeds of modern anthropological and
sociological law in relation to society. He has contributed to the growth of legal theory so much
so that it is difficult to evaluate his impact on contemporary law- approach and method. Indeed
the anthropological approach of Sir Henry Maine, the sociological approach of Pound, the
realist approach of Swedish Realists and finally the sociology of law of Ehrlich are outcome of
historical approach adopted by Savigny. Comparative jurisprudence is another development
which has emerged as a result of Savigny’s work. He is the first jurist to propound the
evolutionary theory of law on the matrix of history and culture resulting in nativistic movements
and revivalistic movements which emphasize on one or the other aspect of culture believed to
have existed in the past or either lost or currently endangered. In the United States the Black
Muslim movement, for example, is an illustration, which is led by a Prophet which finds its real
language to be Arabic, then real religion Islam and their real homeland - the upper Nile. They
want a separate black nation to be carved out of the present United States. Similar is the position
of Tamils in Sri Lanka demanding rights as minority against Sinhalese domination. The modern
pragmatic philosophy is basically rooted in the historical assumptions of Savigny. The modern
realists taken into consideration the grass root realities of the people and societies to make law
people oriented depending on their historical, geographical, ethical and cultural genius or
requirements. This is so because of Savigny’s dictum that law grows with the people and
develops with the people. Significance of his contribution can be studied from another aspect
too. The positivists had made law so barren, so lifeless, and so useless that it became a curse
rather than a cure providing succor to the people. From the wider general interest of the people
Savigny’s history of law unlike Austin, did not castigate morality and social ethos which
constitute the main cementing beam of custom and traditions. Further Ihring and Ehrlich
devised the ‘theory of interest’ on the foundations laid down by Savigny. It is true he has been
responsible for giving a national and racial outlook to law but his effort to make law a living and

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dynamic law also can never be ignored. His theory of law is a powerful social and historical
force shaping the destiny of societies. To sum his theory of law is revolutionary and an agent of
cultural and historical renaissance and to others it is a destroyer of racial harmony among people
and states resulting in race discrimination and responsible for World War II which witnessed
unprecedented racial persecution of Jews especially.
Sir Henry Maine (1822-1888)
The 19th century evolutionism in legal theory set initially by Savigny was nurtured with the
publication of ‘Ancient Law’ in 1861 by Sir Henry Maine who set the stage for anthropologists
and sociologists like Durkheim, Morgan, Sorokin, Zimmerman and Max Weber who
reconstructed their typologies of society on the approach and method of Sir Henry Maine.
Maine’s description of early (primitive) and modern society as status and contract finds
corresponding equivalent typologies in Durkheim as mechanical and Organic, in Morgan
societies and Civilas and in Sorokin and Zimmerman rural and urban. These varying typologies
of society are essentially indicators of historical growth as to how the communities evolved.
These theories emerged more or less contemporaneously with ‘The Origin of Species’(1860) of
Charles Darwin. Hence it would not be wrong to say them including Henry Maine as ‘Social
Darwinists’. Moreover, Maine being the leading English exponent of Historical Jurisprudence he
avoided the mistakes and short-comings of Savingy. He constructed a new base of social order
wherein the individual is finally liberated from the clutches of feudal primitive bondage- as
essence of historical change and key to the new basis of modern western political culture.
Sir Henry Maine was born in 1822. Maine published his first work ‘Ancient Law’ in 1861. His
other important works were ‘Village Communities’ published in 1871, ‘Early History of
Institutions published’ in 1875 and ‘Dissertations on Early Law and Custom’ published in 1883.
According to him, ‘Law develops through four stages. In the beginning, law was made by the
commands of the ruler believed to be acting under divine inspiration, as the inspiration by the
Themistes in the poems of Homer. In the second stage, the knowledge and administration of
customs goes into the hands of minority, usually of a religious nature, due to the weakening of
the power of original law-makers. The fourth stage was the time of codes. Law is promulgated in
the form of a code, as Solan’s Attic Code or the Twelve Tables in Rome.

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Societies which do not progress beyond the fourth stage which closes the era of spontaneous
legal development are called static societies by Maine. There legal condition remains
characterized by what Maine states as (Status). That is a fixed legal condition dominated by
family dependence. The member of a family household, whether wife, child or slave, remains
chained to the family nexus dominated by the pater families.
The three agents of legal development that are brought to bear upon the primitive codes are in
historical sequence- legal fiction, equity and legislation. By the use of legal fictions, law is
altered in accordance with changing needs while it is pretended that it remains ‘what it was’.
While speaking about the special significance of the fiction of adoption, Maine had in mind that
it was the family expanded by that fiction which furnished the model and in some cases the
actual historical forerunner of the larger political units of later societies.
Equity is then used to modify the law “as a set of principles invested with higher sacredness
than those of original law”. The final stage was that of legislation. People came to recognize the
simple fact that law can be brought into existence by explicit declaration of intention
incorporated in the words of legal enactments.
“The moment of the progressive society has hitherto been a movement from status to
contract.”
Sir Henry Maine did not reject the rationalizing development of law. He accepted it as inevitable
for the small number of progressive societies. His theory of the development of personal legal
conditions from status to contract was a theoretical corollary to the freedom of labour and
contract demanded by an expanding industrial and capitalist society.
Criticism:
(i) In totalitarian States, there has been a strong shift to status again. In those countries, no
contract is allowed which is in any way not in consonance with the state plan or is harmful to
society. According to Maine, societies have not remained progressive but have become
retrogressive.
(ii) The theory of Maine was true during his lifetime and was merely an echo of the industrial
development and the formation of a capitalist class which demanded freedom of contract and

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labour. Another limitation of Maine’s theory was that it was not meant “to apply to personal
conditions imposed otherwise than by natural incapacity.”
(iii) In one sense, Maine’s theory still holds good. The trends of legislation in countries which
are underdeveloped is still to remove personal disabilities which arise due to the membership of
a class (status). The Hindu Marriage Act, The Hindu Succession Act etc. are examples of it.
Likewise, labour laws and land laws passed during recent years, have helped in the emancipation
of workmen and peasants. The conclusion is that so long as capitalism has a strong hold, the
theory of Maine holds good. When its forces start withering away, there is a contrary movement.
In a totalitarian State, the freedom of contract is confined to the narrowest limits and the theory
of Maine does not apply there.
Contribution of Sir Henry Maine:
(i) It is true that Maine recognized legislation as an important source of law, but while doing so
he avoided the excesses of the Philosophical School of Germany. He used his knowledge of the
history of law to understand what had been in the past and not to determine its future course. His
greatness lies in the fact that he preached a belief in progress and that contained the germs of
sociological approach.
(ii) Maine gave a balanced view of history. Savigny had explained the relation between
community and 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.
(iii) Dicey compared the English Constitution with other constitutions and also gave a historical
survey of the legislation during the 19th century. His views are to be found in his ‘Law of the
Constitution’ (1885) and ‘Law and Public Opinion in England’ (1905). Maitland applied the
historical method to a study of the legal position of the groups within the State. Dr. Figgis traced
the relation of the Church with the State and advocated the rights of ecclesiastical groups. His
important works are Churches in the Modern State, Divine Right of Kings and from Garson to
Grotius. Lord Bryce traveled a good deal and studied the political institution in various countries
and employed the historical and comparative methods in all studies. The names of some of his
important works are Modern Democracies, The American Commonwealth and Studies in History
and jurisprudence.

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Comparison of Historical and Analytical Schools ‘Historical School’
(i) Historical School is concentrates its attention on the primitive legal institutions of the society.
(ii) Law is found and not made. Law is self- existent.
(iii) Law is antecedent to the State and exists even before a State comes into existence.
(iv) Law is independent of political authority and its enforcement. Law does not become law
merely because of its enforcement by the sovereign.
(v) Law rests on the social pressure behind the rules of conduct which it enjoins.
(vi) Law is the rule by which the invisible borderline is fixed within which each individual
obtains a secure and full space.
(vii) Typical law is custom. “Human nature is not likely to undergo a radical change and,
therefore, that to which we give the name of law always has been, still is and will forever
continue to be custom.”
(viii) Custom is the formal source of law. It is transcendental law and other methods of legal
evolution, e.g., precedent and legislation derive their authority from custom. At any rate, custom
derives its binding force from its own intrinsic vitality and not from judicial precedent or
legislation purporting to follow or legalise it.
(ix)While interpreting statutes, judges should also take into consideration its history.
‘Analytical School’
(i) Analytical School confines itself to mature legal systems.
(ii) Law is an arbitrary command of the sovereign. It is the deliberate product of legislation.
(iii) If there is no sovereign, there can be no law.
(iv) The hallmark of law is its enforcement by the sovereign.
(v) Law rests upon the force of politically organized society.
(vi)Law is the command of the sovereign.
(vii)Typical law is a statute.
(viii) Custom is not law until its validity is established by a judicial decision or Act of the
Legislature. It is only a source of law.
(ix) While interpreting a statute, judges should confine themselves to a purely syllogistic method.

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Important Questions:
Q.1: Discuss the reasons for the emergence of Historical School. Who are the jurists belonging
to this school?
Q.2:Critically examine the ‘Volksgeist’ theory of Savigny and assess his contribution.
Q.3: “The movement of the progressive societies has hitherto been a movement from status
to a contract.” Comment on this statement of Henry Maine and critically assess his contribution.

(5) Sociological School of Jurisprudence

Jurists belonging to the sociological school of thought are concerned more with the working of
law rather than its abstract content. Their principal premise is that the law must be studied in
action and not in textbooks. They are concerned with the study of law in relation to society. They
concentrate on actual social circumstances which give rise to legal institutions. They insist that
the legal order is a phase of social control and that it can’t be understood unless taken in its
whole settings among social phenomena.
The factors responsible for the emergence of this school are:
(i) Mental bankruptcy of Analytical approach to meet the social demands of modern society;
(ii) Conflicts between individual interest and social interest and the need to reconcile them;
(iii) Inter-connection between law and society.
(iv) Works of the earliest pioneers of the new interests in society, i.e.,Bentham, Renner,
Weber, etc.
The following are the main characteristics of this school:
(i) Sociological jurists are concerned more with the working of the law of the legal order and
the legal precepts rather than its nature.
(ii) According to Analytical jurists, law is made consciously; Historical jurists, it is something
found; but the Sociological jurists regard law as social institution.
(iii) Sociological jurists lay stress upon the social purposes / securing social interests rather than
on sanction.

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(iv) Sociological jurists look on legal institutions, legal doctrines and legal precepts
functionally…… this the functional view of law.
The objective of sociological source of jurisprudence is to resolve immediate problems of society
with such tools – legal or extra legal and techniques which promote harmony and balance of
interest of society.
The Sociological School gained ascendancy in the first decades of the 20th century. The
Sociological School devotes its attention not to the ethical content and aim of law but to the
actual circumstances which give rise to legal institutions and with condition their scope and
operation. This is the functional in the morphology of society. It is essentially concerned not with
man as an individual but with man-in-association.
Ehrlich has written thus: “At the present as well as at any other time, the centre of gravity of
legal development lies not in legislation, not in juristic science, but in society itself. This
sentence, perhaps, contains the substance of every attempt to state the fundamental principles
of the sociology of law.”
Rudolf Von Ihring (1818-1892):
Ihring was German jurist. He has described as the “Father of Modern Sociological
Jurisprudence.” He rejected the Analytical and Historical jurisprudence as jurisprudence of
conceptions. According to him, law is an instrument for serving the needs of individuals of
society. Hence, the law should be studied in terms of purposes or interests which it sub-serves.
He observed, “The stone does not fall in order to fall, but it must fall because its support is
taken away .Similarly, the man who acts does so not because of anything, but in order to
attain something. As there can be no motion of the stone without a cause, so can there be no
movement of the will without purpose.”
According to him, human will is directed towards the furtherance of individual purposes. In
realisation of individual purposes, there is bound to be a conflict between social interests and
individual’s selfish interests. Ihring tries to reconcile the individual interests with that of the
society. So, law is only an instrument for serving the needs of the society……its purposes and
interests. The success of the legal process depends on achieving proper balance between social
and individual interests. It is through two impulses – coercion and reward, the society compels

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individuals to subordinate selfish individual interests to social purposes and general interests.
The natural impulse of duty and love also make man to sub-serve social ends. Therefore, Ihring
views, ‘law as an instrument of social control balancing of individual interests with that of the
society.’
Eugen Ehrlich (1862-1922)
Professor Eugen Ehrlich of Austria is another great jurist of sociological jurisprudence who
expounded the organic concept of ‘Living Law’ by avoiding Savigny’s mystical notion of
Volksgeist for which Ehrlich stipulated the notion of facts of law and of the living law.
According to Ehrlich, certain facts underlie all laws. Those are usage, domination, possession
and declaration of will
According to Ehrlich, ‘living law’is to be discovered from judicial decisions, modern business
documents against which judicial decisions have to be checked and observation of people bliving
among them and noting their behavior.
According to Ehrlich, a statute, which is habitually disregarded, is no part of living law.
Enforcement by the State is not the distinction between formal and living law. The difference lies
in social psychology. According to Ehrlich, the real law of the community is not to be found in
the traditional formal legal sources. The norms governing life in society are imperfectly and
partially reflected in the formal law of that society. The net result is that the formal law can never
catch up with the ‘living law’. There is always a gap between what the law says about a given
topic and the way in which the people actually behave in the context of that topic.
The conclusion of Ehrlich is that if we want to know the living law of a society, we cannot
confine ourselves to the formal legal material but we have to go beyond that in order to find out
how people actually live in society.
Ehrlich does not find any difference between law and custom. It appears to him both of them
have the same sanction in the form of social pressure. To quote Ehrlich:“The individual is never
actually an isolated individual; he is enrolled, placed, embedded, wedged into so many
associations that existence outside of these, would be unendurable.” The jurists should study
not only the formal legal system but also the rest of the living law.

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The central point in Ehrlich’s approach is his minimization of the differences between law and
other norms of social compulsion. Law is something much wider than legal regulation. The State
is only one of a number of legal associations. The State, as the principal source of law, is to
Ehrlich historically a much later development. It remains at all times essentially an organ of
society. Ehrlich distinguishes between static and dynamic principles of justice.
Leon Duguit (1859-1928)
Another great jurist of Sociological Jurisprudence in the European continent is Leon Duguit who
was a Professor of Constitutional Law at the University of Bordeaux for a long period. He wrote
prolifically in the early years of 20th century on Constitutional Law and Jurisprudence. He
emerged at a period when structure of individualism was crumbling in Europe being replaced by
a new philosophy of collectivism and socialism what Professor Dicey calls the ‘age of the
collectivist legislation.’…….. Duguit was especially influenced by August Comte, the noted
French positivist who had expounded law as a fact and had rejected the theory of subjective
rights. Comet’s notion that ‘the only right which man can possess is the right always to do his
duty’ greatly influenced Duguit’s obscession against the notion of right.
Doctrine of Social Solidarity:
According to Duguit, the outstanding fact of society is the interdependence of the people. This
interdependence has always been there, but it has increased in modern times on account of the
increasing knowledge of man and his mastery over the physical world. Social interdependence is
not a theory or a conjecture but a fact. It is an all important fact of human life. All human activity
and organization should be directed to the end of ensuring the harmonious working of man with
man. Duguit calls it the principle of “Social Solidarity”.
As all human activities and organizations are to be judged from the manner in which they
contribute to social solidarity, the State can claim no special position or privileges. It is only one
of the various human organizations which are necessary to protect the principle of social
solidarity. It can be justified in so far as it defends and further the principle of social solidarity. It
is nothing more than an organization of men who issue commands backed by force. If the State
acts in a way which promotes social solidarity, it is entitled to be upheld and encouraged. If it
does not perform that function, the people have right to revolt against it and suppress the State

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itself. The whole idea of sovereignty is meaningless. All power is limited by the test of social
solidarity. Every man and every grouping of men is under a duty arising out of the facts of social
existence. That duty is to further social solidarity. To quote Duguit: “Man must so act that he
does nothing which may injure the social solidarity upon which he depends; and more
positively, he must do all which naturally tends to promote social solidarity.”
‘Social solidarity’ is the touch stone of judging the activities of individuals and all organizations.
The State is a human organization whose duty is to ensure social solidarity.Duguit was in favour
of strong checks on the abuse of State power through the establishment of the strict principles of
State responsibility. To quote him, “The State is sovereign, but such sovereignty has its limits.”
Duguit’s disbelief in an all powerful State, combined with his belief in the greatest possible
division of labour, leads him to out much stress upon decentralization and group government.
The different classes co-operate with each other and defend individuals belonging to them
against the excessive claims of other classes as well as against the arbitrary actions of the central
power.
Another implication of social solidarity is his rejection of the intervention of the State as the
decisive factor in turning a social into a legal norm.
Another implication of social solidarity is that law is a spontaneous product of individual
consciousness, inspired at the same time by social necessity and the sentiments of justice. This
being so, legislation can only be conceived of as a means of expression of the rules of law. The
legislator does not create it: he defines it.
Another implication is the denial by Duguit of any distinction between private and public law.
According to him, both must serve the same end of social solidarity. There is no deference in
their nature. Such a division will elevate the State above the rest of the society which is not
accepted by Duguit.
Individuals working in any capacity are parts of the same social organism and each is to play his
part in the furtherance of the same end of social solidarity. The essence of law is duty. The view
of Duguit is that a law which does not stand the test of social solidarity is not a valid law. Public
opinion is thus the expression of the social solidarity principle by which the validity of law
should be judged.

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Criticism:
(1)If a question arises whether a particular act or rule furthers social solidarity or not, the matter
has to be decided by judges and that might prove to be dangerous. Judges have their weaknesses
and limitations and that may lead to judicial despotism.(2)The idea of social solidarity can be
differently interpreted and used to serve divergent purposes and actually that has been done.
Duguit’s insistence on the identity of interests of the various groups in society and the
minimization of conflicts was used by the Fascist to serve an absolutely different end. They also
used it to suppress trade unions.
(3)Duguit advocated the minimization of State intervention at a time when the State was
becoming all important. He overlooked the fact that the social problems of a modern community
were becoming complex and could be tackled only by the State. With the development of
society, the sphere of State activity has expanded tremendously and instead of the State
withering away, it has become stronger.

Roscoe Pound (1870-1964)

Dean Roscoe Pound (RP) has been acknowledged as the unchallenged chief of the sociological
school of jurisprudence. Sociological jurisprudence arose as a reaction to positivism (19th
century positivist jurisprudence) since it refused to consider social and economic circumstances.
Its main contribution was broadening the scope of jurisprudence. Law is not an isolated
phenomenon, but is a part of social reality. Roscoe Pound, one of the leading American jurists
and pioneer in the American Jurisprudence, can be said to be the father of sociological
jurisprudence in America. According to Roscoe Pound, law takes account of social facts / reality.
Roscoe Pound asserts that law is a method or technique for harmonizing conflicting social
interests. His school is known as ‘functional school’ as it concentrates more on the functional
aspect of law. In modern society, there are various interests and if claims of these groups are not
harmonized, there may be strife and thereby production may suffer. By ‘Social
Engineering’,Roscoe Pound means a balance between the competing interests in society. In
other words, social engineering is a term used to define the act of balancing of different interest,
i.e., individual interests, public interests and social interests. The aim of social engineering is to

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build as efficient a structure of society as possible, e.g., if a factory is polluting the environment
and an injunction suit is filed for closing it, the court must balance various claims and interests –
claim of the mill owner to do his business, claims of the workers in the factory to retain their
jobs, claim of local residents to have a clean environment, etc. Roscoe Pound says ‘law exists
for the benefit of the society. Any law, which is against the interests of the society, can’t be
said to be a law.’
Despite the broadness of his views, he gave preference to the practical means in the study of law,
which are as under:
(i) to make a study of the actual social effects of legal institutions and legal doctrine/to look
more to the working of law than to its abstract content;
(ii) to regard law as a social institution which may be improved by intelligent efforts
discovering the best means of furthering and;
(iii) to lay stress upon the social purposes which law sub-serves rather than upon sanction.
(iv) to study what social effect the doctrines of law have produced in past.
(v) to send for equitable application of law.
(vi) to make effort more effective in achieving the purposes of law.
Roscoe Pound’s theory is that the interests are the main subject-matter of law and the task of law
is the satisfaction of human wants and desires. It is the duty of law to make a valuation of
interests. He classified interests under three heads-
(i) Individual; (ii) Public; and (iii) Social
(i) Individual Interests – These are claims or demands or desire involved in and looked at
from the standpoint of the individual life such as-
(i) Personality e.g., freedom of will, privacy, belief and opinion as also honour and reputation;
(ii) Domestic relations e.g., relations of husband and wife, parents and children; and
(iii)Interests of substance e.g., proprietary rights, inheritance and testamentary succession,
contract, continuity of employment, freedom of association.
(ii) Public Interests - These are claims or demands or desires asserted by individual involved
in and looked at from the standpoint of political life such as-

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(i) Interests of the State as a juristic person e.g., (a) integrity, freedom of action and honour of the
State personality; and (b) claims of the politically organized society as a corporation to property
acquired and held for corporate purposes;
(ii) Interests of the State as guardian of social interests – this seems to overlap with the next
category, i.e., Social interests.
Social Interests – These are claims or demands or desires thought of in terms of social life and
generalized as claims of the social group. They concern:
(i) Interests in the preservation of peace, public health and order and maintaining general
security;
(ii) Interests in preserving social institutions like marriage, domestic and religious institutions;
(iii) Interests in preserving general morals by counteracting corruption, drunkenness,
prostitution, gambling etc.;
(iv) Interests in conserving social resources;
(v) Interests in general progress (economic, political and cultural) which is to be achieved by
freedoms of education, speech, trade, property, etc,; and
(vi) Social interests in individual life like promotion of human personality, self-assertion, etc.-
each individual to be able to live a human life according to the standards of the society.
Every society has certain basic assumptions upon which its ordering rests. These assumptions
are the ‘Jural Postulates’of the legal system as embodying the fundamental purpose:
[I]In civilized society, men must be able to assume that others will commit no intentional
aggressions upon them.
[II]In civilized 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 or what they have acquired under the existing social and economic order.
[III]In civilized society, men must be able to assume that those with whom they deal in general
intercourse of society (others) will act in good faith.
[IV]In civilized society, men must be able to assume that those who engage in some course of
conduct will act with due care not to cast an unreasonable risk of injury upon others.

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[V]In civilized society, men must be able to assume that others, who maintain things or employ
agencies, harmless in the sphere of their use but harmful (things) in their normal action
elsewhere, will restrain them or keep them within their proper bounds.
Roscoe Pound insists, interests should be weighed on the same plane as it were. One can’t
balance an individual interest against a social interest. Freedom of the person might be regarded
as an individual interest, but it is transferable as an interest of the society that its members should
be free. However, in order to harmonize conflicting interests in modern dynamic society, judge
will often have to dispense justice without law, i.e., without following any prescribed rule or
precedent.
The task of law is ‘Social Engineering’, i.e.,the balancing of competing interests in society. He
coined the expression ‘social engineering’ to represent the true attitude to law and its function.
To build a society, jurists, lawyers and judges must use law as an engineer does its material
sparingly, but produce its best results. Thus, the law is an attempt to reconcile, to harmonize, to
compromise, these overlapping and conflicting interests. His philosophy is essentially one of
practical compromise. Roscoe Pound believes that interests are the chief subject of law and the
task of law in society is the satisfaction of human wants and desires.
Critical Analysis of Roscoe Pound’s Theory:
Roscoe Pound’s theory mainly emphasis functional aspect of law and ignores nature and
character of law.
(1)Lack of criteria of evaluation –It is not interests as such, but the yardstick with reference to
which they are measured that matter.
(2)Interests pre-exist laws –It isn’t true as there are certain social legislations in which the
interests are created by the laws and others.
(3)Misleading balancing metaphor –If two interests are to be balanced, that pre-supposes some
‘scale’ or ‘yardstick’ with reference to which they are measured. The ‘weight’ to be attached to
an interest will vary according to the ideal that is used.
(4)From legislation to court judgment –Roscoe Pound emphasized ‘judicial activism’. His
theory shifts the centre of gravity from legislation to court judgments. A list of interests can’t be
drawn in advance as new interests are created and recognized by the courts. The judiciary has

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limitations and doesn’t have the machinery of enforcing its decisions. It can’t do what legislature
can do.
(5)Theory lacks general application (Applicability to India)-There are certain competing
interests which can never be balanced or reconciled, e.g., interests of labour and capital and
landlord and tenant.
(6)Utility of list of interests –A society constantly develops and changes and the pressures
behind interests change too. What is an individual interest and what is a social interest is itself
a matter of changing political conceptions. The value or importance to be allotted to each
interest can’t be pre-determined and the recognition of a new interest is a matter of policy.
Despite the aforesaid criticisms, the significance of Roscoe Pound’s sociological jurisprudence is
of world import as it strikes a fine synthesis between liberty and equality and between freedom
and social control through the instrumentality of law. He is no enemy of abstract philosophy, but
he is impressed by certain limits of legal philosophy. Roscoe Pound asserts, “I don’t believe that
the jurist has to do more than recognize the problem and perceive that it is presented to him as
one of securing a balance or harmony among them.”
For Roscoe Pound, law is a product of class conflict. Law is not autonomous, but a product of
policy. Laws reflect the ideology of a ruling class. Laws will only be effective. His theory is
relevant only for an ideal society. A conflict model and not a consensus model will create
interests. Unless a conflict situation is created, interests can’t be created. Law is a social force.
In short, the important and remarkable feature of this school is that the jurists are concerned with
the study of law in relation to society. The principal area is that law should be studied in action
and not in textbooks. The inner-connection between law and society should be that of such a
nature, which can be fulfil maximum interest of community. It should not be an instrument of
coercion as a means to sub-serve the ends of the society. In essence, the sociological jurists look
at law functionally.

Important Questions:
Q.1: Sociological School is modern in approach to law in action. It looks at the working of
law in society. Discuss.

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Q.2: “The aim of social engineering is to build an efficient structure of the society as far as
possible which involves the balancing of competing interests.” Pound. Discuss.

(6) American Modern School:

The realism is anti- thesis of idealism. Some jurists refuse to accept the realist school as separate
school of jurisprudence. American realism is a combination of the Analytical positivism and
Sociological approaches. It is positivist in that it first considers the law as it is. On the other
hand, the law as it stands is the product of many factors. In as much as the realist are interested in
sociological and other factors that influence the law. Their concern, however, is law rather than
society. Realists don’t give any importance to laws enacted by legislature. And they uphold only
judge-made law as genuine law. A great role of judges’ understanding about law, society and
also their psychology affect any judgement given by them. At the same time, in a same case
applying same law two different judges give the different judgments.
Realism denounces traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do. Realists believe that certainty of law is a myth
and its predictability depends upon the set of facts which are before the court for decision. It
presupposes that law is intimately connected with the society and since the society changes faster
than law so there can never be certainty about law. They do not support formal, logical and
conceptual approach to law. The realist school evaluates any part of law in terms of its effect.
Jerome Frankhas stated, “Law is what the court has decided in respect of any particular set of
facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will
decide and this cannot be treated as law unless the court so decides by its judicial
pronouncement. The judges’ decisions are the outcome of his entire life history.”
Meaning and Definition of the American Realism:
The insights of legal realism are mainly negative, revealing a deep skepticism about the model of
rules, about any general and abstract theory of the law. Realism is not consolidated into a

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definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical
phenomenon’ rather a ‘school of thought’. American Legal Realism expressed a set of
sometimes self-contradictory tendencies rather than a clear body of tenets or a rigorous set of
methodologies or prepositions about legal theory.
According to Roscoe Pound,“Realism is the accurate recordings of things as they are, as
contrasted with things as they are imagined to be or wished to be or as one feels they ought to
be.”
According to Friedman, “Realist school prefers to evaluate any part of law in terms of its
effects.”
Origin and History of the American Realist School:
Legal realism is a school of legal philosophy that is generally associated with the culmination of
the early 20th century attack on the orthodox claims of late-19th century classical legal thought
in the United States of America. American Legal Realism is often remembered for its challenge
to the Classical Legal claim that orthodox legal institution provided an autonomous and self
executing system of legal discourse untainted by politics.
The realist school has been divided into two parts:
•Scandinavian Realism
American realism
Both are hostile to formalism that treats law as a lifeless phenomenon. Both adopt radical
empirical methods that seek to explain law in terms of observable behavior (examining cause and
effect) and both are antagonistic towards metaphysics and values. Scandinavian Realismis
existed in Europe, Sweden, Norway, England and Scandinavian countries. This school of realism
was supported by Axel Hagerstrom. A.V. Lundstedt and Karl Olivecrona.
Realistic thinking was introduced to American Jurisprudence by Oliver Wendell Holmes.Oliver
Holmes has been described as the intellectual inspiration and even the spiritual father of the
American realist movement. Holmes was skeptical of the ability of general rules to provide the
solution to particular cases and readily gave credence to the role of extra-legal factors in judicial
decision-making. Holmes gave the first and classic exposition of the court-focused approach in
1897, sowing the seeds for realism, in a paper called ‘The Path of Law’.

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American Realist Movement:
Realism was not consolidated into a definite, coherent theoretical system; it can at best be
described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’. The
realist movement began in the 19th century in America and gained force during the
administration of President Franklin D. Roosevelt. The realist movement in United States
represents the latest branch of sociological jurisprudence, which concentrates on the decisions of
law courts. Sometime it is called the ‘left wing of the functional school’. This movement named
as realist because this approach studies law, as it is in actual working and its effects. Realism was
a movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to
accept realism as a separate school of jurisprudence. According to Llewellyn,“there is no realist
school as such, it is only a movement in thought and work about law’. Realism is the
anti-thesis of idealism. American realism is combination of the analytical positivism and
sociological approaches. Julius Stonecall the realist movement a ‘gloss’ on the sociological
approach.
Basic Features of Realist School:
Realism denounces traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do.
There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and
Prof. Goodhart:
(1)There has to be a conception of law in flux and of the judicial creation of law.
(2)Law is a means to social ends; and every part of it has constantly to be examined for its
purpose and effects, and to be judged in the light of both and their relation to each other.
(3)Society changes faster than law and so there is constant need to examine how law meets
contemporary social problems.
(4)Realists believe that there can be no certainty about law and its predictable depends upon the
set of facts which are before the court for decision.
(5)They do not support formal, logical and conceptual approach to law because the Court while
deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.

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(6)They lay grater stress on psychological approach to the proper understanding of law as it is
concerned with human behavior and convictions of the lawyers and judges.
(7)Realists are opposed to the value of the legal terminology, for they consider it as tacit method
of suppressing uncertainty of law.
(8)The realists introduced studies of case law from the point of view which distinguished
between rationalization by a judge in conventional legal terminology of a decision already
reached and the motivations behind the decisions itself.
(9)The realists also studies the different results reached by courts within the framework of the
same rule or concept in relation to variations in the facts of the cases, and the extent to which the
courts are influenced in their application of rules by the procedural machinery which exists for
the administration of the law.

How American Realist School is Differentfrom Other Schoolsof Jurisprudence:

American Realism and Legal Positivism:
Despite their serious differences, American realism and legal positivism share one important
belief. It is that their views are similar on the point of difference between ‘the law as it is’ and
‘the law as it ought to be’. The positivist, according to Hart, look to the established primary rules
and to secondary rules of recognition that designate law making bodies. American realists are
skeptical about the degree to which rules represent the law. They seek to investigate how courts
actually reach their decisions. Karl Llewellyn observed that the realists’ separation of ‘is’ and
‘ought’, is a temporary divorce. The divorce lasts while the scholars are discovering what courts
actually do.
•American Realism and Sociological Approach: Realist school differs from sociological
school as unlike the sociological approach, realists are not much concerned about the ends of law
but their main attention is on a scientific observation of law and its actual functioning. It is for
the reason that some authorities have called realist school as the ‘left wing of the functional
school.’ Some quarters feel that realist movement in the United States should not be treated as a
new independent school of jurisprudence but only a new methodology to be adopted by the
sociological school.

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•American Realism and Natural Law Philosophy: Realist school differs from Natural law
school as according to natural law philosophy laws are made by the Nature or God itself but
Realist school believes that laws are made by the judges or juristic persons. Natural Law is
“discovered” by humans through the use of reason and choosing between good and evil. In
Natural law school laws are based on the morality and the ethics.
Main Jurists of American Realist School and Their Theories:
(A) Justice Holmes: Bad Man Theory:
The seeds of realism were sown by Justice
Holmes. He said that Law is not like mathematics. Law is nothing but a prediction. According to
him, the life of law is logic as well as experience. The real nature of the law cannot be explained
by formal deductive logic. Judges make their decisions based on their own sense of what is right.
In order to see what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’
facing trial. Therefore his history is known as Bad man Theory. This theory says that a bad man
successfully predicts the actual law than other people. Holmes said that law should be looked
from bad man’s perspective. On the basis of this prediction Holmes defined the law as,
“Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious”.
(B) Justice Gray:
John Chipman Gray only exhibited limited factors in common with the realists. His approach
was certainly as court-oriented as the realists. For Gray the law was simply what the court
decided. Everything else includes statutes, were simply sources of law. He said, “The law of the
State or of any organized body of men is composed of the rules which the courts, that is, the
judicial organs of that body, lay down for the determination of legal rights and duties.”
(C) Karl N. Llewellyn: ‘A Law Jobs Theory’:
Karl Llewellyn was a professor of law at the Columbia University. He confessed that there is
nothing like realist school instead it is a particular approach of a group of thinkers belonging to
the sociological jurisprudence. According to Llewellyn realism means a movement in thought
and work about law. Karl Llewellyn outlined the principle features of the realist approach.
Which are as follows:-
1.There has to be a conception of law in flux and of the judicial creation of law.

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2.Society changes faster than law, so there is a constant need to improve the law.
3.There has to be a temporary separation between is and ought for the purpose of study.
Karl Llewellyn described the basic functions of law as ‘law-jobs’. Law is an ‘institution’ which
is necessary in society and which is comprised not only of rules but also contains an ‘ideology
and a body of pervasive and powerful ideals which are largely unspoken, largely implicit, and
which pass unmentioned in the books’. Law has jobs to do within a society. These are:
i.The disposition of the trouble case: a wrong, a grievance, a dispute. This is the garage-repair
work or the going concern of society with its continuous effect upon the remarking of the order
of society.
ii.The preventive channeling of conduct and expectation so as to avoid trouble and together with
it, the effective reorientation of conduct and expectations in similar fashion.
iii.The allocation of authority and the arrangement of procedures which mark action as being
authoritative; which includes all of any constitution and much more.
iv.The positive side of law’s work is the net organization of society as a whole so as to provide
integration, direction and incentive.
v. ‘Juristic method’ to use a single slogan to sum up the task of handling the legal materials and
tools and people developed for the other jobs to the end that those materials and tools and people
are kept doing their law-jobs, and doing them better, until they become a source of revelation of
new possibility and achievement.
(D) Jerome Frank: Fathers’ Symbol Theory:
Jerome Frank was initially a practicing lawyer. He served in the Law Department of the
Government for about a decade. In 1941, he was appointed as a Judge in the United States
Circuit Court. He was also a visiting professor of law in Yale Law School. His classic work,
“Law and the modern mind” presents a very close examination of judicial process and is full of
practical illustrations. His thesis is that law is uncertain or certainty of law is a legal myth. He
exploded the myth that law is continuous, uniform, certain and invariable and asserted that the
judges do not make the law, instead they discover it. Frank observes that a judge’s decisions are
the outcome of his entire life history. His friends, his family, vocations, schools, religion, all
these factors are influential.

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In this regard Jerome Frank has given the Fathers’ Symbol Theory’. The child puts his trust in
the power and wisdom of his father to provide an atmosphere of security. In the adult the
counterpart of this feeling is the trust reposed in the stabilityand immutability of human
institutions. Franksuggested that the quest for certainty in law is in effect a search for a
‘father-symbol’ to provide an aura of security, and although he attributed great prominence to
this factor. He offered it only as a ‘partial explanation’ of what he called the ‘basic myth’, and
listed fourteen other explanations as well.
Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty
is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to
how law works. Frank accordingly divided realists into two camps, described as ‘rule skeptics’
and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules as providing uniformity in law and
tried instead to find uniformity in rulesevolved out of psychology, anthropology, sociology,
economics, politics etc. The‘rule skeptics’ avoided that criticism by saying that they were not
deriving purposive ‘ought’ but only predictions of judicial behavior analogous to the laws of
science. Frank called this brand of realism the left-wing adherents of a right-wing tradition,
namely, the tradition of trying to find uniformity in rules. The fact ‘fact skeptics’ rejected even
this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and pointed
to the uncertainty of establishing even the facts in trial courts. It is impossible to predict with any
degree of certainly how fallible a particular witness is likely to be, or how persuasively he will
lie.
Frank divided realists into two camps, described as ‘rule-skeptics’ and ‘fact-skeptics.’ The
‘rule-skeptics’ rejected legal rules as providing uniformity in law, and tried instead to find
uniformity in rules evolved out of psychology, anthrpology, sociology, economics, politics etc.
Kelson, it will be remembered, maintained that it is not possible to derive an ‘ought’ from an ‘is’.
The ‘rule-skeptics’ avoided that criticism by saying that they were not driving purposive ‘ought’,
but only predictions of judicial behavior analogous to the laws or science.
Contribution of the American Realist School to 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.

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Opposing positivist’s view, the realists hold that law is uncertain and indeterminable in nature
therefore, certainty of law is a myth. According to Friedman,realist movement is an attempt to
rationalize and modernize the law-both administration of law and the material for legislative
change, by utilizing the scientific method and taking into account the factual realities of social
life. According to Julius Stone, ‘realist movement is 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 of American Realist School:
1.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 principles and treated law as an assemblage of unconnected court decisions. Their
perception of law rests upon the subjective fantasies and life experience of the judge who is
deciding the case or dispute. Therefore there can’t be certainty and definiteness about the law.
This is indeed overestimating the role of judges in formulation of the laws. Undoubtedly, judges
do contribute to law-making to a certain extent but it cannot be forgotten that their main function
is to interpret the law.
2.Another criticism so often advanced against realists is that they seem to have totally neglected
that part of law which never comes before the court. Therefore it is erroneous to think that law
evolves only through court decisions. In fact a great part of the law enacted by legislature never
comes before the court.
3.The supporters of realist theory undermine the authority of the precedent and argue that case
law is often made‘in haste’, without regard to wider implications. The courts generally give
decisions on the spot and only rarely take time for consideration. They have to rely on the
evidence and arguments presented to them in court, and do not have access to wider evidence
such as statistical data, economic forecasts, public opinion, survey etc.

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4.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 judges.
There are a variety of other factors as well as which has to take into consideration while reaching
his decisions.
5.The realist theory is confined to local judicial setting of United States and has no universal
application in other parts of the world like other schools of jurisprudence.

Realism in the Indian Context:

The legal philosophy of the realist school has not been accepted in the sub-continent for the
obvious reason that the texture of Indian social life is different from that of the American
life-style. The recent trends in the public interest litigation winded the scope of judicial activism
to a great extent but the judges have to formulate their decision when the limits of constitutional
frame of the law by using their interpretative skill. In other words the judges in India cannot
ignore the existing legislative statutes and enactments. They have to confine their judicial
activism within the limits of the statutory law. They are free to overrule the previous decisions
on the ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the
Indian legal system, though endows the judges with extensive judicial discretion, does not make
them omnipotent in the matter of formulation of law. The legislative statutes and enactments,
precedents and the rules of equity, justice and good conscience are indispensable part of the
judicial system in India. The constitution of India itself provides ample scope for the judges to
take into consideration the hard realities of socio-economic and cultural life of the Indian people
while dispensing social and economic justice to them.
In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the
realist’s legal philosophy, it does lay great stress on the functional aspect of the law and relates
law to the realities of social life. Again, it refuses to accept the realist’s view that Judge-made
law is the only real ‘law’ and other laws are worthless, but at the same time it does not
completely ignore the role of Judges and the lawyers in shaping the law. Thus it would be correct
to say that the Indian Legal system has developed on the pattern of sociological jurisprudence as
evinced by the post-independence socio-economic legislation but it considers doctrine of realism

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alien to Indian society which has a different life-style and social milieu. Undoubtedly, the Indian
Judges do have the liberty of interpreting law in its contextual and social setting keeping in view
the socio, economic, political, cultural, historical and geographical variations of the Indian
society. The power of review and doctrine of overruling its earlier decisions has enabled the
Supreme Court to effectuate the socio-economic contents of the Constitutional mandate through
the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in
Bengal Immunity Case, (AIR 1955 SC 661) overruled its earlier decision in Dwarkadas v/s.
Sholapur Spinning Co. (AIR 1954 SC 119) and observed that “the Court is bound to obey the
Constitution rather than any decision of the Court, if the decision is shown to have been
mistaken.” Justifying its stand, the Court further observed that where a constitutional decision
affects the lives and property of the public and where the Court finds that its earlier decision is
manifestly wrong and injurious to the public interest, it should not hesitate to c\overrule the
same.
Adopting the same approach Justice B.B. Gajendragadkar in Keshav Mills v. Income Tax
Commissioner (AIR 1965 SC 1616) observed that Supreme Court has inherent jurisdiction to
reconsider and revise its earlier decision if it does not serve the interest of the public good.
There are a number of cases where the rules or laws are made by the judiciary. Some of the
following cases where the Supreme Court played the role of law-maker are given as below:
In Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1819), the Supreme Court has held that
speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined
in Article 21. In Bihar a number of under trial prisoners were kept in various jails for several
years without trial. The Court ordered that all such prisoners whose names were submitted to the
Court should be released forthwith. Since speedy trial is being held to be a fundamental right
guaranteed under Article 21 of the Constitution of India. The Supreme Court considered its
constitutional duty to enforce this right of the accused person.
In Shri Ram Food Fertilizer case (AIR 1987 SC 1965), the Supreme Court directed the
company, manufacturing hazardous and lethal chemicals and gases posing danger to health and
life of workmen and people living in its neighborhood, to take all necessarysafety measures
before reopening the plant.

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In Ganga Water Pollution case(M.C. Mehta v. Union of India (AIR 1988 SC 1115), the
petitioner sought the direction from the Supreme Court restraining the respondents from letting
out trade effluents into the river Ganga till such time they put up necessary treatment plants for
treating the trade effluents in order to arrest the pollution of water in the said river.
In Permanand Katara v. Union of India (AIR 1989 SC 2039), the Supreme Court has held that it
is a paramount obligation of every medical (private or government) to give medical aid to every
injured citizen brought for treatment immediately without waiting for procedural formalities to
be completed in order to avoid negligent death.
In M.C. Mehta v. State of Tamil Nadu (AIR 1991 SC 417), it has been held that the children
cannot be employed in match factories which are directly connected with the manufacturing
process as it is a hazardous employment within the meaning of Employment of Children Act,
1938. There can, however, be employment packing process but it should be done in area away
from the place of manufacture to avoid exposure to accident. Every children must be insured for
a sum of Rs. 15,000/- and premium to be paid by employer as a condition of service.
Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare Forum v.
Union of India (AIR 1996 SC 2715), the Supreme Court directed 162 tanneries in Tamil Nadu
to be closed because these were polluted the air and the water around the area where they were
operating and the water had been unworthy for drinking.
M.C. Mehta v. Union of India (1996)8 SCC 462), with a view to preserve environment and
control pollution within the vicinity of tourist resorts Badkhal and Surajkund the Court directed
the stoppage of mining activities within two kilometer radius of these two tourist resorts.
In a significant judgement in Vishakha v. State of Rajasthan (AIR 1997 SC 3011), the Supreme
Court has laid down exhaustive guidelines for preventive sexual harassment of working women
in place of their work until any legislation is enacted for this purpose.
Conclusion:
As we know that American realism is a combination of the analytical positivism and sociological
approaches. Realists define law as generalized prediction of what the Courts will do. Realists
believe that certainty of a law is a myth and its predictability depends upon the sets of facts
which are before the Court for decision. Legal realism emerged as an anti-formalist and

73
empirically oriented response to and rejection of the legal formalism. Legal realism operates on a
premise that is adhered to by most laymen and many who have legal training: that “the law,”
whatever that may be, is connected with and is intrinsically tied to the real-world outcomes of
particular cases. Proponents of legal realism say it is not concerned with what the law ‘should’ or
‘ought’ to be, but the legal realism simply seeks to describe what the law is. Proponents of legal
formalism disagree, saying that ‘law’ is what is commanded by a law-giver, that judges are not
law-givers, and that what judges do, while it might belong to the field of law, is not ‘law’ but
legal practice. American realism jolted legal positivism out of its complacencyby questioning
widely held assumptions about the nature of rules. Realism prompted the rethink of legal
positivism that was brilliantly undertaken by scholars like Hart and Raz. It forced positivists to
distance themselves from formalism and to reconsider the nature of legal language and judicial
discretion.
American Legal Realism is often remembered for its challenge to the Classical legal claim that
orthodox legal institutions provided an autonomous and self-executing system of legal
discourseuntainted by politics. Unlike Classical legal thought, American Legal Realism worked
vigorously to depict the institution of law without denying or distorting a picture of sharp moral,
political, and social conflict. The most important legacy of American Legal Realism is its
challenge to the Classical legal claim that legal reasoning was separate and autonomous from
moral and political discourse.
(7)Economic Approach of Law:
Marxist Approach on Law and State and its Impact:
The law and economics movement applies economic theory and method to the practice of law. It
asserts that the tools of economic reasoning offer the best possibility for justified and consistent
legal practice. It is arguably one of the dominant theories of jurisprudence. The law and
economics movement offers a general theory of law as well as conceptual tools for the
clarification and improvement of its practices. The general theory is that law is best viewed as a
social tool that promotes economic efficiency, that economic analysis and efficiency as an ideal
can guide legal practice. It also considers how legislation should be used to improve market
conditions in return. Law and economics offers a framework with which to model legal

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outcomes, and common objectives with which to unify disparate areas of legal activity. The
bringing together of legal theory and economic reasoning has also created new research agendas
in the fields of behavioral economics: how rationality affects people's behavior within legal
scenarios; public choice theory and how collective behavior should have an effect on legislation;
and game theory: understanding strategic action in a legal context.

Marxist Theory of Law and State:

Karl Marx and Friedrich Engels

Both of them are considered to be the founders of the greatest social and political movement
which began in 19th century and flourished in 20th century as a political philosophy in Eastern
Europe which is the erstwhile Soviet Union and influenced all the decolonized colonies of the
world. Tenets of their ideology are practised in China’s Political Philosophy.
Marx’s view of state and law was co-terminus with the understanding of society and social
process. Marx’s originality of thought lies in the fact that he synthesized almost entire
philosophical thought from Aristotle to Hegel.
The sociological understanding of the society led Marx to pronounce that the desired system
should be a Communist Society based on rational planning, co-operative production and equality
of distribution and most importantly, liberated from all forms of political and bureaucratic
hierarchy.

Marx condemned and rejected the state and money as Bourgeois concept. He believed that the
proletariat has a historical mission of emancipating the society as a whole. For him, law seemed
to be nothing more than a function of economy without any independent existence.
Following is his classification of society into various classes:
1. The capitalists
2. The Wage Labourers
3. The land owners

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He said that the conflict between various classes of the society will eventually have to be
resolved. The resolution of the conflict will take place in the shape of a Proletarian revolution.
Once this revolution takes place, it will seize the power of the state and transform the means of
production in the first instance into State property. The earlier state of exploitation and
representative of class antagonism will be replaced by a state truly representative of society as a
whole which means taking possession of means of production in the name of society. This would
be at the same the last independent act of the State.
The interference of the State in social relations becomes superfluous in one’s sphere after a point
of time and then ceases off itself. The government of persons is to be replaced by a different
administration that would direct the process of production. However, the Proletarian revolution
in order to reach the stage of Communism shall have to pass through various stages.
1. Establishment of a Proletarian Dictatorship which is essential to convert the capitalist modes
of production into the Proletariat mode of production.
2. Stage of Nationalization of the property and all the capital modes of production.
3. Stage of Socialism as the property is in common ownership, the society at large shall be
responsible for the production and distribution of goods.
The production of goods in common ownership, the distribution of commodities will have to
follow “from each according to his ability to each according to his needs”.
However, inequalities will remain and hence, the need to distribute the goods will become
inevitable. The ultimate stage is that of Communism and this state he imagined in his work
called “Critique of the Gotha Program”.
He said that the Communist society will have to develop and emerge from capitalist society and
in respects, it is bound to carry with it some marks of capitalist society.
“Accordingly the individual producer will receive back what he gives to society, after
deductions for government, education, and other social charges. He will give society his
individual quota of labour. For example: the social working day consists in the sum total of
individual working days; the individual labour time of the individual producer is the part of
the social working day which he contributes; his share thereof. He will receive from society a
certificate that he has performed so much work (after deducting his work for social funds),

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and with this certificate he will draw from the social provision of articles of consumption as
much as a similar quantity of labour costs. The same quantity of labour as he will give to
society in one form he will receive back in another.... The right of producers will be
proportionate to the work they will perform: the equality will consist in the application of the
same measure: labour." Higher Communist State- Concept of power and labour gets
vanished. After production force increases, then there will be all round development of
individual. This we get from “Communist Manifesto”. In higher form of communist state after
enslaving subordination of the individual to the division of labour and anti-thesis between
mental and physical labour has vanished after labour has become not only a means of life but
life’s prime want, after the productive forces have also increased with the all-round
development of individual. And all the springs of the co-operative wealth flows more
abundantly”.
He further believed that the concept of state is a super structure in a capitalist state to organize
and uphold class oppression. The bureaucracy and the executive in a state are for the managing
common class and struggle waged by the society against each other. Law is not based on will but
once the bourgeois state is overthrown by a proletariat, the proletariat state would come into
existence. This state would be representative of social will of all the classes. The nexus between
safeguarding the private property by a capitalist state will be replaced by a proletariat state which
has nationalized all the private property. However, it is interesting to note that the state and
statecraft remains an important and integral in the proletarian society.

Evgeny Pashukanis
He tried to remove the gloss on law and Marxism as experimented by the Marxist state. He
believed that proletariat law practised in erstwhile Soviet Union needed alternative general
concepts to reinforce Marxist theory of law. He believed that power is collective will as the ‘rule
of law’ realized in the bourgeois society is to the extent that the society is represented by a
market.
Karl Renner

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He authored “The institutions of private law and their social functions”. This work of his
utilized the Marxist theory of sociology to develop a separate theory of law. He believed that the
Socialists and Marxists have failed to understand that new society as such societies have
pre-formed in the womb of the old and that is equally true for law as well. According to him, the
process of change from one given order to another is automatic.
Renner confessed that the concept of property in terms of Marx has not remained the same today.
The property whether in socialism and capitalism has not remained an instrument of exploitation
rather the natural forces of change have put property into various restrictions be it tenants,
employees or consumers. However, he also said that the power of property remains whatsoever
the political character of the state may be
In general, Marxist theories of the State go hand in hand with the theory of historical materialism
set forth by Marx and Engels. This theory holds that society passes through different fixed stages
of development distinguished by the dominant mode of economic production of the time. The
progression between stages is effected by struggle between the different economic classes,
defined in terms of their relations to the means of production. In this world view, the current
society is a capitalist one dominated by the class struggle between the bourgeoisie, the owners of
the means of production or capital, and the proletarians, the labouring classes who produce the
wealth of society through their labour which is then expropriated by the bourgeoisie in the form
of profits, as per Marx‘s theory of surplus value. This economic system, so the theory goes, is the
base upon which the superstructure of society is built, i.e. the State, Law, Culture etc, and is the
key to understanding capitalist society. Thanks to the economically dominant position of the
bourgeoisie, such a society necessarily reflects their class values and favours them to the
detriment of the proletarians.
The way to end this link between economics and the law is through a revolution of the
proletarians to overthrow capitalism and expropriate the bourgeoisie. Then a proletarian state
built on an economic basis of common ownership of the means of production which will erase
class differences before withering away. There are differing interpretations of this theory in
Marxistthought.

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The criticism of the state was developed primarily by Engels in his seminal work, ‘The Origin of
the Family, Private Property, and the State’. According to Engels, the State arose at times of
acute class antagonisms out of ‘the need to hold class antagonisms in check’ and is not a neutral
body as it is ‘the State of the most powerful and dominant economic class’. As the State arises in
a society where the bourgeoisie are economically dominant, the State reflects their economic
power and domination of the State machinery allows the bourgeoisie to become politically
dominant too. Moreover, the States existence is as a coercive mechanism of ‘bodies of armed
men’ and ‘material adjuncts, prisons and institutions of coercion’ which grow in proportion to
the strength of class antagonisms. Hence, the State is nothing more than a ‘new means for
holding down and oppressing the exploited class’. Even democratic republics fall under this
definition as power in these States is wielded indirectly through the corruption of state officials
and ‘an alliance between governments and stock exchanges’. Despite writing a detailed critique
of the capitalist State, Engels made no predictions as to what, if any, type of State would exist
under socialism, the transitional period between capitalism and communism before the State had
withered away.
It was Marx and Lenin who attempted to answer this question. In his 1871 work, ‘The Civil War
in France’ Marx drew upon the lessons of the short lived ‘Paris Commune’ in an attempt to
outline what a socialist state would look like. Separation of powers with the judiciary and police
being democratically elected and subject to instant recall. This democratization of State functions
would lead in turn to the withering away of State and in turn communism.
Lenin expanded on the theory of a workers state, or Dictatorship of the Proletariat, in his 1917
pamphlet, ‘The State and Revolution’. While he agreed with the points made by Engels and
Marx, both of whose works he extensively quoted, he emphasised that the State would continue
to exist solely as a weapon of terror and coercion. Its functions would be similar but qualitatively
different from those of the bourgeois State. For instance, the selective instruments of coercion in
a bourgeois state would be replaced by a fully armed working class who would fulfil the role of a
state apparatus themselves under the direction of the Communist Party. This state apparatus
would be directed towards the prevention of a counter-revolution by the dispossessed
bourgeoisie. This state will then wither away in its own turn as the economic basis for the

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existence of classes and the state is destroyed by common ownership of the means of production,
while strict controls on wages for elected officials would prevent the re-emergence of a capitalist
style bureaucracy and exploiter elements within such a bureaucracy. Despite agreeing on most
substantive points with Marx and Engels in predicting the withering away of the State, Lenin
seemed to acknowledge that some form of law would exist in a future communist society, an
important development in Marxist theories of law generally. Finally, Lenin held as Marx did that
the activities of the State would be reduced to mere administrative functions which would be
done by the workers themselves.
Marxist theories of the state existed as mere abstractions prior to 1917. Before those years
October Revolution in Russia, the Marxist theories of a post-capitalist state ad not been put to the
test in practice. Now there was an opportunity to put theory into practice. The results, however,
where something of a surprise to orthodox Marxists as, contrary to expectation, the Soviet State
did no wither away but became stronger, becoming after a time nothing more than a dictatorship
of the Communist Party. This somewhat surprising development gave rise to several different
theoretical explanations as to the nature of the Soviet state, the three most notable being those of
Pashukanis, Vyshinsky, and Trotsky.
Pashukanis held the orthodox view that the State would wither away in time as law was nothing
more than a super-structural phenomenon resting on the base of a market economy; once the
market had been removed, so the law would be a spent force and would disappear entirely. As
for the Soviet State, he believed that it was in the process of withering away and that the law did
not contain the ‘unlimited possibilities which lay before it at the birth of bourgeois capitalist
society’ and that it ‘only encompasses us within its narrow horizon for the time being’.
This was the predominant analysis until 1937, when Stalinist theories of capitalist encirclement
and Socialist Legality developed. According to the theory of encirclement, a strong state was
needed to prevent the USSR being overrun by ideologically hostile capitalist and fascist states.
This provided the necessary ideological justification for the continuing existence of a state
post-revolution while the socialist legality thesis of Vyshinsky provided the justification for a
socialist legal system. According to this idea law would develop in a socialist society in the same
fashion as law in a bourgeois society, reflecting the dominant ideology and economy, described

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by McCoubrey & White as being a rule through law rather than a rule by law. This approach,
typical of the Stalinist mindset, justified both the re-emergence of legal procedure and the
existence of the Stalinist dictatorship which negated any kind of legal justice. This approach was
favoured until the Secret Speech by Nikita Khrushchev at the Party Congress in 1956, when it
was abandoned.
In stark contrast to the theories of Pashukanis and Vyshinsky stands the theory of Leon Trotsky.
While making no attacks on the legal system of the USSR, Trotsky heavily criticised the Soviet
State itself as what he called a degenerated workers state, the workers state being the transitional
state. According to this analysis, the economic and social backwardness of Russia at the time of
the revolution, the decimation and peasantisation of the working class and Bolshevik Party
during the Russian Civil War, the lack of democratic traditions in Russia and the failure of the
revolution to spread to other countries doomed the workers state in Russia to isolation and to an
eventual counter-revolution where political power was wrested into the hands of an
undemocratic and totalitarian bureaucratic caste, with Stalin as figurehead. Their control of the
means of production through centrally imposed, top-down planning meant the state hadn’t
withered away despite common ownership and the solution to the problem was a political
revolution to take back political power from the bureaucracy and allow workers democracy to
facilitate the withering away of the State.
These are perhaps the most important Marxist analyses of both capitalist states and the Soviet
State. Newer thinkers have criticised Marxist theories of the state for being too rigid, such as
Hugh Collins who argued that class domination is implausible in its hypothesis of a coherent
ruling class; instead ideology is the key to legal reasoning in the state with the dominant ideology
being reflected in the judgments of the courts, a thesis clearly influenced by Gramsci’s theory of
cultural hegemony. These examples illustrate the differences that exist between the various
strands of Marxist thought on the nature of the State and between the theory and practical reality
in existing nominally Marxist states.

RELATIONSHIP BETWEEN LAW AND MORALITY

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Introduction
This essay will explore the theories of Hart, Fuller and Devlin and consider there views on the
link between law and morality. It will consider the debates mounted between Hart and Fuller and
Hart and Devlin and what these debates add to our understanding to the link between law and
morality. It will be argued and concluded that morality plays an important and essential role in
our understanding of our legal responsibilities. It will recognize that there has been a long
association between morality and law and that traditionally law has been associated with
religions, customs and divinity.
The Hart – Fuller Debate
To understand Hart’s criticism of Fuller it is important to familiarize and understand the eight
principles of the “inner morality” of the law that Fuller asserts and how in his view law and
morality are intertwined. Fuller asserts that:
1.A legal system must be base on or reveal some kind of regular tends. As such law should be
founded on generalizations of conduct such as rules, rather than simply following arbitrary
adjudication.
2.Laws must be publicized so that subjects know how they are supposed to behave.
3.Rules will not have the desired effect if it is likely that your present actions will not be judged
by them in future. As such, retrospective legislation should not be abused.
4.Laws should be comprehensible, even if it is only lawyers who understand them
5.Laws should not be contradictory.
6.Laws should not expect the subject to perform the impossible.
7.Law should not change so frequently that the subject cannot orient his actions to it
8.There should not be a significant difference between the actual administration of the law and
what the written rules say
These criteria are in the form of moral rules of duty. Fuller expresses them as principles or goals;
generality of laws; promulgation of laws; minimizing the use of retrospective laws; clarity; lack
of contradiction; possibility of obedience, constancy through time; consistency between the
words and practice of law.

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Hart’s criticism of Fuller’s eight principles of “inner morality” of law must be understood. These
principles, which loosely describe requirements of procedural justice, were claimed by Fuller to
ensure that a legal system would satisfy the demand of morality, to the extent that a legal system
which adhered to all of the principles would explain the all-important idea of “fidelity to law” In
other words, such a legal system would command obedience with moral justification.
Fuller’s key idea is that evil aims lack a “logic” and coherence that moral aims have. Thus,
paying attention to the “coherence” of the laws ensures their morality. The argument is
unfortunate because it does, of course, claim too much. Hart’s criticism is that we could, equally,
have eight principles of the “inner morality” of the prisoner’s art. Or we can improvise further.
We can talk of the principles of the inner morality of Nazism, for example, or the principles of
the inner morality of chess. Fuller’s explanation of the Nazi regime is insufficient and flawed,
and we must take on Hart’s analysis. Fuller argues that the Nazi regime was so intrinsically evil
that it could not be law, this it is argued, is not a sufficient conclusion. The point is that the idea
of principles in them with the attendant explanation at a general level of what is to be achieved
and consistency is insufficient to establish the moral nature of such practices.
This was that there is an important sense of legal justification that claims made in the name of
law are morally serious. At the least, the person who makes a genuine claim for legal
justification of an immoral, Nazi-type legal system must believe that there is some moral force to
his claim.
Against Fuller, Hart insisted that the identification of a directive as law indicated nothing about
the moral authority of that directive and thus nothing about whether that directive should be
obeyed. Consequently, claimed Hart, official and citizen disobedience to immoral directives
would be facilitated not by pretending that such directives failed to qualify as legal just because
of their perceived iniquity, but rather by internalizing the fundamental positivist insight that law
and morality were conceptually distinct. Because of this conceptual distinction between law and
morality, Hart argued, a directive’s legality said nothing about its morality.

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