SCHOOLS OF JURISPRUDENCE

ANALYTICAL SCHOOL OF LAW

• Relation with State
• Present- as it exists (this school doesn’t
concern with itself that law is good or bad or
regarding the evolution of law).
• This school is also known as Austinian,
Teleological, Positive and Imperative.
• It favors codification of laws
 JEREMY BENTHAM
• Founder of Analytical School: Jeremy Bentham
• Book- Limits of Jurisprudence Defined
• Defined Las as: “An assemblage of signs”
• Classified Jurisprudence as:
1) Expository Jurisprudence i.e. What the law is and
2) Censorial Jurisprudence i.e. what the law ought to be.
• Utilitarian Individualism:
– Principle of Utility- Greatest Happiness of Greatest Number
– Theory of Utility- Property or tendency of a thing to prevent
some evil or procure some good. The consequences of good
and evil are respectively Pleasure and Pain.
 HISTORICAL SCHOOL
• Savigny is regarded as the founder of the
Historical school. He believes that this Law
comes from the changing needs of people in
society. Habits and customs are the main
source of Historical school. He has given the
‘Volksgeist’ theory. According to this theory,
the law is based upon the general will or free
will of common people. In this way Law is a
national character.
 SOCIOLOGICAL SCHOOL
• This school focuses on studying the Law in
practices with relation to society. They view
the law as social organization connected with
their orders bearing a direct effect on society.
It understands the law as an agency of social
control. It tries to provide a balance between
individual and social needs in order to achieve
maximum satisfaction and minimum friction.
This method is also described as the science of
social engineering.
 PHILOSPHICAL SCHOOL or NATURAL
SCHOOL
• They believe that the Law originates from the
divine supreme power. It is largely
hypothetical and is based on assumptions like
nature or GOD as the source of Law for
conduct and morality. It is the contribution of
Indian, Greeks and Romans.
 REALISM SCHOOL
• The realism of the anti-thesis of idealism. Some jurists refuse to
accept the realist school as a separate school of jurisprudence.
Realism denounces traditional legal rules and concepts and
concentrates more on what the courts actually do in reaching the
final decision in the case.
• 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. 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 theory 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.
 NATURAL LAW SCHOOL
• According to this School, there are certain laws
which are immutable and eternal. These laws are
a constant body of permanent truths, unaffected
by human beliefs and attitudes. (Also called
moral/divine law, law of reason, law of God).
• Natural is based on a priori proposition
– A priori knowledge, knowledge that is acquired
independently of any particular experience.
– A posteriori knowledge, also called empirical
knowledge, is derived from experience.
• Development of Natural Law Theories can be
divided into 4 time periods:-
1. Ancient Period (Socrates, Plato, Aristotle, Zeno,
Cicero)
2. Medieval Period (Thomas Acquinas)
3. Renaissance Period (Hobbes, Locke, Rousseau)
4. Modern Period (Stammler, Rawls, Hall)
 ANCIENT PERIOD
Socrates
• Defined ‘Virtue’ which basically was the concept of good.
• Every man possessed virtue according to which he can critically
evaluate the positive law.
• Developed a way of teaching called the Socratic Method, in
this method students learn through the use of critical thinking,
reasoning and logic.
• This technique involves finding holes in their own theories and
then patching them up.
• Our current ‘scientific method’ is inspired by the ‘Socratic
Method’, but for his efforts, in 399BC, Socrates was put on trial
and executed for ‘corrupting the young and believing in strange
gods’.
 PLATO

• Student of Socrates, the world knows about Socrates through

Plato’s writings.
• Gave the ‘Doctrine of Forms’ forms are transcended archetypes
that exist independently of physical world, independently of
human mind, independently of space and time.
• This concept is knows as ‘Idealism’ (believing in or pursuing some
perfect vision or belief)
• For Plato the forms of ‘goodness’, virtue, ‘honesty’ were eternal
and immutable because they are given to all men in equal measure
so that men can have a sense of justice.
• Famous works The Trial and death of Socrates, The Republic,
Apology, the Symposium.
 ARISTOTLE

• He was the student of Socrates.

• He rejected the theory of Doctrine of Forms
given by Socrates.
 ZENO

• He founded Stoicism (word originated from ‘Stoa Poikile’ a

building where Zeno studied with his students), his followers
were known as stoics.
• Roman Empire was influenced by stoicism and thus paid high
tribute to ‘Natural Law’ because stoicism was basically a
branch of Natural Law Theory.
• Romans made three divisions in Law on basis of Natural Law
theory
– Jus Civile ( civil Law for roman citizens only)
– Jus Naturalis (principles of natural Law)
– Jus Gentium (rules applied to foreigners made by magistrates on
basis of principles of natural law, also one of the first forms of
international law)
 Medieval Period

• Catholic Philosphers and theologians of the

Middle Ages gave a new theory of ‘Natural Law’.
• Though they too gave it theological basis , they
departed form the orthodoxy of early Christian
Fathers. Their views were more logical and
systematic.
• Thomas Acquinas was the most prominent
Natural Law philosopher in this time period.
 St. Thomas Acquinas

• He divided the law into 4 stages:-

• 1. Law of God
• 2. Natural Law (Revealed through ‘reason’)
• 3. Divine Law (Law of Scriptures)
• 4. Human Laws (Positive Laws)
• Natural Law is that part which reveals itself in
natural reason. This is applied by human
beings to given their affairs and relations.
• It believes that ‘unjust’ law deserve no obedience’
means that man finds out natural law by applying
‘reason’ and studying scriptures of the revelation of
God.
• He pleaded for establishing the authority of the
church over the state, according to him, even the
sovereign has limited powers. He identified natural
law with reason, gave sanctity to the social and
political organization and pleaded hard for
preserving social stability.
 RENAISSANCE PERIOD
• The period of renaissance in history of development of
Natural Law may also be called the modern classical era
which is marked by rationalism and emergence of new
idea in different fields of knowledge.
• A very important theory which emerged in this time
period was the ‘Social contract theory’.
• According to this theory there is a ‘state of nature’ in
which there are no rights and no duties on anyone, then
humans came together and formed a ‘Social Contract’
that is basically a contract that everyone has certain
rights and those rights are enforced by putting certain
duties on everyone. A simple example us that everyone
has right to life, so every person has duty to not kill.
 THOMAS HOBBES
• In his state of nature man always had a fear of instant death, it was
horrible place to live in.
• So, people formed a social contract and gave all the power to a ‘State’
which becomes the sovereign and is responsible for providing security for
everyone’s rights to life and an order among all in the society.
• Under the prevailing circumstances, people, in order to get rid of their
miseries, entered into a contract under which they surrendered all their
rights to a single person. The law of nature can be discovered by reason
which says what a man should do or not do. Man has a natural desire for
security and order, this can be achieved only by establishing a superior
authority that must command authority. Therefore he advises the
sovereign that he must command with the natural law.
• Hobbes in his book ‘Leviathan’ wrote that civil war and the brute situation
of a state of nature could only be avoided by strong, undivided
government. In his theory, he supports the idea of absolute authority of
the sovereign i.e. a super stable and secure government.
 JOHN LOCKE
• It was for the purpose of protection of property that man
entered into a social contract. Under this contract, he did not
surrender all his rights, but only a part of them. All these rights
were surrendered in order to maintain order and to enforce the
law of nature. The natural rights like the right to liberty, property,
and life were to be retained by man.
• Locke stood for individual liberty and advocated that the powers
of the sovereign is not unlimited. According to Locke individual
has a right to protest against the sovereign if he is unable to
protect the rights of the individual, individuals also have a right
to overthrow the existing government. According to him an
individual’s right to liberty, property, and life are the basic natural
rights and the sovereign must realize these rights and take a
decision, taking into consideration the above-mentioned rights.
 JEAN JACQUES ROUSSEAU
• According to Rousseau man entered into a contract in
order to preserve the rights of equality and freedom, they
surrendered their rights not to a single individual but to
the community as a whole which Rousseau calls it as the
general will.
• Theory of General Will
– According to Rousseau, it is the duty of an individual to obey the
general will because in that way he is obeying his own will. The
government and laws made must conform itself with the
general will and if they are not able to do so then they could be
overthrown, in brief Rousseau stood for the interest of the
community rather than the interest of the individual, his natural
law theory stood for equality and freedom of men.
 MODERN PERIOD (19th-21st Century)
• Many famous 19th Century Philosphers didn’t buy the
concept of a priori knolwedge, i.e. there are certain
immutable truths.
• David Hume said that natural laws says that values are
inherent in nature, which is not true, the values and also
the concept of justice varies alot from place to place, if
there would have been a perfect, complete system which
can be discovered by man then there won’t be so many
divergent interpretations of law throughout the world.
• Austin didn’t believe in any natural rights, according to
him all rights are created by state and enforced by state.
 20th Century
• In 20th Century there were certain attempts to revive Natural
Law.
• Because it was felt that there is need for some basic values and
standards for society, it was realized that society would always
need and ideal of justice.
• Stammler(1856-1938):-
– it was an exponent of ‘Natural Law with a variable content’ which is
hybrid theory between analytical and natural law school.
– According to him there is technical legal science and theoretical legal
science.
– First one relates with the content of law, second one relates with the
ultimate principles of law.
– So, basically laws can be different for different societies which will be
based on a posteriori knowledge, but the ends to be achieved by
those laws are ascertainable by a priori method.
• John Rawls(1856-1938)- in his book ‘a theory of
justice’ also tries to find a middle ground between
utilitarianism and natural law theories by using
hypothetical concepts of ‘Original Position’ and ‘Veil
of Ignorance’ to determine the structure of society.
• Jerome Hall (1901-1902)- He was of the view that it
is time to reunite all disciplines. Jurisprudence
should be ‘adequate’ in the sense that it will
combine Positivist, Naturalist and Socialist study of
Law he termed this ‘integrative jurisprudence’.
 ANALYTICAL SCHOOL OF LAW
• This is school is based on the legal maxim, ‘Ubi civitas ibi lex’ which
signifies ‘where there is State, there will not be anarchy’ and therefore,
the underlying principle of this school is the relation of law with that
of a State.
• The essential concept of the Analytical school of jurisprudence is to
deal with the law as it already exists. Law, according to the Analytical
school, is the sovereign’s direction.
• As a result, analytical schools are also known as imperative schools. In
the nineteenth century, the analytical school rose to prominence.
• This school, which is the most popular in England, establishes the
fundamental elements that make up the fabric of law, such as state
sovereignty and the administration of justice.
• Austin is considered as a father of the Analytical school.
• This school is also called Austinian, Imperative, English, Positivist
School of Law.
 JEREMY BENTHAM
• Jeremy Bentham divided jurisprudence into expository and censorial
jurisprudence. The former is concerned with law, it gives no regard to law’s
moral or immoral character. On the contrary, the later deals with science of
legislation. In 1782, he authored a book called ‘The Limits of Jurisprudence
Defined’ which was published in 1985. He said that only the legislature must
possess the absolute power of making the laws.
• In his book, Bentham stated that the duty lied upon the state to provide
utmost happiness along with maximum liberty. To put it another way, it is
necessary to test all laws and examine if they are providing maximum
happiness and liberty. This brings us to the “principle of utility”. Its lays
emphasis on the Greatest Happiness of the Greatest Number.
• Jeremy Bentham’s Principle of Utility gives rise to the concept of pain and
pleasure. Utilitarianism is also known as the ‘Theory of Pain and Pleasure’
and ‘The Doctrine of Hedonism’. This principle recognizes the role of pain
and pleasure in the life of humans. While pain could be understood to mean
‘all things that are bad or evil’, Pleasure simply denotes ‘everything that is
good
• In order to measure pain, he came up with a ‘utilitarian
calculus’. The utilitarian calculus gave 7 factors to calculate
pain. The 7 factors include intention, duration, certainty,
nearness, fecundity, purity and extent.
– Intensity- How strong is the pleasure?
– Duration- How long will the pleasure last?
– Certainty- How likely or unlikely is that the pleasure will occur?
– Propinquity or remoteness- How soon will the pleasure occur?
– Fecundity- the probability that the action will be followed by
sensations of the same kind.
– Purity- The probability that it will not be followed by sensations
of the opposite kind.
– Extent- How many people will get affected?
• He supported the idea of “laissez-faire” i.e. let
the men be free (minimum government
intervention in people’s activity).
• Laissez-Faire gives predominance to individual’s
interest over society’s interest or the welfare of
the state. Bentham propagated the freedom of
human beings. According to him, only when
every single individual enjoys his freedom, he
would be the advocate or propagator of his
own welfare.
• First person to use the term ‘international law’.
 AUSTIN
• The definition of law elucidated in his work, ‘The Province of
Jurisprudence Determined’, put emphasis on law to be a species of
command that tends to separate positive law from morality.
• John Austin divided the law into positive law and positive morality.
While he referred to the former as ‘laws properly so called’, he said
that the later are merely ‘laws improperly so called’.
• He said that a law is a positive law when it comprises of primarily 3
elements. Those 3 elements are sanction, command and duty.
• The most suitable example of such a law would be the laws made
by the parliament, as there lies a sanction, that is followed by a
command and it becomes the citizen’s duty to abide by or follow it.
Austin strictly disregarded customs to be laws.
• John Austin disregarded social factors, he focused on the logic.
He pointed out that positive law comprises both explicit and
implicit orders from superiority. The law is a reflection of the
sovereign’s wishes and its foundation lies upon the sovereign’s
authority. The law is considered in the abstract form by
outriding moral and ethics so that it does not hinder the
application of law.
• He used the analytical technique – ‘Law should be rigorously
examined and evaluated, and the principle underlying it
should be discovered’ and limited his research to Positive law
that is Jus positivism (‘Law, simply and strictly so-called: Law
set by political superiors to political inferiors’).
• As a result, he used the terms “analytical,” and “positivism,” to
describe the school he formed, therefore, the Analytical
school of jurisprudence is also known as Analytical Legal
Positivism.
• Austin claims that “Positive morality” comprises laws
not imposed by men (as political superiors) or in the
pursuit of a legal right, as well as laws imposed by
analogy, such as fashion laws. He further stated that
the improper laws were not sanctioned by the State.
Law = command + sanction + sovereign
• Austin noted that every law, properly referred to as
such, must have three elements, namely, command,
sanction, and sovereign authority thereby intending
to say that “law is the mandate of a sovereign,
ordering his subjects to do or refrain from specific
actions. If the command is not followed, there is an
implied threat of punishment”.
• A ‘command’ is a declaration of a specific individual’s or group’s
wish that another person does or refrain from doing anything
that would result in evil in the case of disobedience, i.e.
‘sanction.’ As a result, every law is a command that imposes a
responsibility and is enforced by punishment. A command,
according to Austin, can be specific (directed to a single
individual or group of people) or universal (issued to the whole
community and informing classes of acts and forbearances, they
are often referred to as ‘continuous orders’). A specific command
is effective when the individual or group being commanded
obeys it whereas a general command is successful when the
majority of a political society obeys it on a regular basis.
• According to Austin’s conception of law as the “command of the
sovereign,” because the sovereign can only execute their orders
with an efficient administrative apparatus in such societies.
• Customs are not taken into account in Austin’s definition.
 HANS KELSON
• Hans Kelson was an Austrian jurist and philosopher.
He supported the Analytical school of jurisprudence.
He propounded the pure theory of law.
• The main aim of this theory was to reduce chaos
and multiplicity and to bring unity. Kelson regarded
law as an order of the human behaviour. Kelson did
not deny the value of social sciences.
• In Kelson’s view, there lied no difference between
law and state, they are the same. Hence, no
distinction between public and private law.
• Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of
legal philosophy, offered a “pure theory of law,” that is, a
theory-free of social, historical, political, psychological, and
other influences thus omitting everything that is not
technically law and logically self-supporting.
• The law is a normative (‘law as a coercive order’) rather than
natural science, and it comes with punishments. The test of
legality can be found inside the legal system itself. He
described the law as “a set of rules governing human
behaviour.”
• Example- If X occurs, then Y should occur. As a result, if
someone steals, the individual should be penalised.
• The law is a set of behavioural standards that may be traced
back to a grundnorm, or fundamental norm, from which they
gain their legitimacy. The grundnorm must be effective, that is,
people must have trust in it, otherwise, a revolution will occur.
There will always be some type of grundnorm in any legal
system, whether it is in the shape of a Constitution or a
dictator’s will.
• The grundnorm will be that the ‘Constitution needs to be
observed’ when there is a written Constitution (for eg in India,
USA). Where there is no written Constitution (like in the United
Kingdom), the grundnorm must be derived from social
behaviour. The grundnorm of international law is the
concept ‘pacta sunt servanda’ (treaty duties bind parties).
 HART
• Hart unlike his predecessors did tilt towards
morality as being not an integral part of law but
at the same time he believed that morality has
an influence on law and he called ‘the minimum
content of natural law’.
• Hart agrees his book that Law is an obligation,
law makes certain human conduct non-optional
or obligatory.
• But he disagrees with law being just a command
as per Austin’s theory.
 Why Austin’s theory not adequate?

In Hart’s view:-
• All laws are not order backed by threats
• a) Sometimes laws confers powers
• b) sometimes the result of not following the law is nullity
and not sanction.
• c) Customs are laws and still not orders.
• II. the notion of continiuity of obedience is deficient, no
continuity in idea of obedience.
• III. Austins notion of sovereignty is deficient, unlimited
power is not practical.
•
• According to Hart ‘Law consists of rules which are of broad
application and non-optional character, but which are at the same
time amenable to formalization, legislation and adjudication.’
• Legal rules are of 2 types:-
• Primary Rules- Lays down duties
• Secondary Rules- Provides for introducing new primary rules or
altering or removing them
• -Rule of Recognition.
• -Rule of Change
• -Rule of Adjudication
• -Sanction imposing rules
 REALIST SCHOOL
• Realist school studies law in its actual working and
rejects the traditional definition of law that it is a body
of rules and principles which are enforced by courts.
• Law is not the body of rules, but it is what the judge
decides.
• What the judge decides depends upon human factor in
the judges and lawyers, the forces which influence the
judge in reaching their decisions.
• Mix of Analytical positivist approach and sociological
approach.
• In realist school we have ‘American Realists’ and
‘Scandinavian Realists’.
• American Realists
– John Chipman Gray (1839-1915)
– Oliver Wendell Holmes (1841-1935)
– Jerome Frank (1889-1962)
– Karl Llewellyn (1893-1962)
• SCANDINAVIAN REALISTS
– Axel Hagelstorm(1868-1939)
– Karl Olivercrona (1897-1980)
– Alf Ross (1899-1979)
 AMERICAN REALISTS
• John Chipman Gray
– Centrality of the role of Judges:
– All Law is Judge made Law. Legislation is therefore no more than
a source of law. It is the courts that ‘put life into the dead words
of the statutes.’
– According to Gray, the court, rather than the legislature, is the
most significant source of the law. According to him, a judge’s
mentality and bias play a significant impact in his decision-
making. He laid the groundwork for a more critical approach that
continued to emphasize the role of non-logical variables in
making judgments.
– According to Gray, the courts are the ones who give life to the
statue’s words
• Oliver Wendell Holmes
– He made a point of stressing that the practice of law was a combination of
both experience and logic. Known for his “bad man’s theory,” Holmes saw
law from the standpoint of someone who would commit a crime. As he
sees it, the law is for the criminals or the “bad man”. To evaluate what the
law really is, one should go to a bad person’s interpretation of it, since they
will be able to accurately calculate what the laws enable them to do and
work within those bounds.
– There must be a clear separation between law and ethics. Holmes’ vision of
law put both court and professional lawyers at the center of the legal stage.
– Law is not defined until the judge decides the case, Law can only be defined
as a prediction of how the courts behave the lawyer, the client, the
defendant all are termed as a ‘Bad Man’ in this theory.
– LAW= EXPERIENCE + LOGIC
• Jerome Frank
– He called himself a ‘constructive legal skeptic’. He said that there
are only two groups of realists, Rule skeptics and Fact Skeptics.
Frank admitted that he belonged to the second group.
– Judge and Jurymen may have bias towards a race, sex, religion but
there are unconscious biases also towards certain people which
could influence the judge.
– American realists defined law as the decision of the judge but here
Frank described the decision as based upon R * F ( rules into facts)
– In his Book ‘Law and the Modern Mind’ he said: ‘Certainty of law is
a legal myth’.
– Frank focuses on the unpredictability of the legal system. He argues
that rules and written law are based on the false assumption that
the law should be clear. He said that judges and practitioners
should recognize the reality that the law is ambiguous and should
not rigorously stick to precedent and defined rules.
• Karl Llewellyn
– Defined Law as an Institution, a very complex
institution, this institution not only ha s a body of rules
based on a large no of principles but it also uses
precedents and ideology, it contains many practices,
some of which are flexible and some are rigid.
– Law is little more than putty in the hands of a judge
who is able to shape the outcome of a case based on
personal biases.
– The term “realism” refers to a shift in legal thinking
and practice. When it comes to this approach,
legislation is seen as a tool for achieving social goals,
and every aspect of the system must be examined for
its purpose and impact. Society’s view of the world
 Scandinavian Realists
• In contrast to American Realism, the approach
used by Scandinavian realists to law is more
abstract and philosophical. It sharply opposes
the metaphysical concepts of law.
 Axel Hagelstorm
• Father of Scandinavian realism
• Said that ‘all Metaphysical concepts are sham concepts’ they are ‘mere
word play’.
• For Example: What is a right?
• When we say a person has a right we mean
1. The Person shall obtain the advantage to which he claims to be entitled under the
right.
2. will obtain from the courts a power of compulsion, provided that he fulfills the
courts of obligations.
• But what if the person is unable to fulfill the courts obligation, does he not
have any right then?
• Even if he fulfills the obligations there is no certainty that the court will
rule in his favour.
• Thus is reality there ‘is’ no right but only there ought to be a right
 KARL OLIVERCRONA
• Content of a rule of law is ‘an idea of an imaginary action by a judge in an
imaginary situation’.
• Such imaginary situations are taken as models for actual conduct when
corresponding situation arises in real life.
• To give law a binding force there is a psychological pressure, when a new law is
made some formality is done so that people have a psychological effect that a
formality is complete (voting in legislature signing of a bill) therefore a legal
event has occurred that has binding force.
• To keep the psychological pressure, force is applied by the administration like
police measures, fines, punishments. It would be more correct to say that body
of rules summed up as law consists chiefly of rules about force.
• Rules are divided into:
• Primary- which prescribe conduct
• Secondary: Consequences of disobedience
• Morality is developed under the influence of law.
 ALF ROSS
• What are norms?
• For something to be called norm, it has to have the idea of a
requirement and should also be followed by the populace. So
according to Ross a norm is a directive which stands in
correspondence to social facts.
• There are two sets of norms in society, one demanding citizens
to behave in a certain way and one prescribing the legal
machinery under what conditions coercive sanctions shall be
imposed.
• These two sets are made so that citizens could understand that
there are some rules directed towards them breaking of which
would give grounds for the reaction of authorities.