Legal Theories and Schools of

Thought
• Legal theories- solutions-
- problems relating to law
- framing and application of law.
- various queries relating to law.
Theories show different attitudes:
a) primacy to community over individuals
b) primacy to individuals over community
c) primacy to both community and individuals.

Freeman ,Lloyd’s Introduction to Jurisprudence

Raymond Wacks, Understanding Jurisprudence
Mani Tripathi. Jurisprudence
• what is law?
• what is its purpose?
• does it consists merely of rules?
• can anything be law?
• what has law to do with justice, morality and
democracy?
• what is the content of law?
• can anything be considered as law?
• why do legal systems differ?
• what makes a law valid?
• do we have a duty to obey law?
Major strands of Legal theory:
Descriptive legal theory-Explain what law is and
why and its consequences -about facts- doctrinal.
Eg: analyzing the rules -strict liability …
Normative legal theory – What law ought to be -
About values -whether a particular rule to be
adopted to protect consumers or people or any
target group/ checks the moral elements/norms
in it .
Critical legal theory-Questions the very
foundation of jurisprudence-Law is not inevitably
rational, neutral or objective- is expressive of
political and economic power.
• Jurisprudence is defined as corpus of answer to
the question what law is?
• Dias- Jurisprudence deals with structure, uses
and functioning of law and legal concepts.
• Lloyd- Jurisprudence involves the study of
general theoretical questions about the nature
of laws and legal system, about the relationship
of law to justice and morality and about the
social nature of law.
• Task of jurisprudence is to offer to us means by
which we can understand and relate to the
complex phenomenon of law.
• Before 19th century – legal theory was the by
product of philosophy, religion , ethics and
politics.
• Great legal thinkers are primarily philosophers,
churchmen and politicians
• Shift to lawyers and legal philosopher is a later
development.
• Legal philosophy/legal theory indicates
systematic thought about law.
• Various theories- contrary view as to sources of
rules and regulations/law.
• Natural law school- Law as dictates of reason
• Positive law school- Law as decrees of
sovereign
• Realist school- law as practice of courts.
• Historical school- past experience
• Sociological school- society and needs in
society.
Natural law school/theory - Natural law means:
- those rules and principles
- emanates from some superior source
-other than any political or worldly authority.
-objective moral principles which can be discovered by
reason.
-principles of practical rationality based on which
human actions are to be judged as reasonable or
unreasonable.
-quest for absolute justice, authority and rules higher
than positive law.
- seeks moral justification for existing social,
economic and legal systems .
Thinkers: Greek philosophers -Socrates, Aristotle,
Stoic philosophers, Medieval philosophers.

Classical natural law theory:

-deals with intersection between law and morals.

- there exists an unquestionable tension between
what is and what ought to be
- it attempts to resolve the conflict.
•.
Socrates: Believed in human insight
– Morals are the higher law
– Human insight helps him to understand what
is good/bad
– Through insight man could inculcate moral
values in him
Plato - only laws that pursue the ideal of
justice is good law or right law.
- implies universal value that transcends
local custom or conventions
Aristotle- father of natural law
- natural processes has got a predetermined ends.
- idea of good.
- law facilitate social life
- seeks to discover values by application of reason
-source of ideals is to be found in human nature rather
than in external ,transcendent values.
-Man is the creature of god
-Man is endowed with reason by which he could form will
-NJ principles could be discovered by reason
-natural world consists of elements of both stability and
change
- and these conflicting forces are integrated by the
concept of ‘telos’ , the object or purpose to which things
inevitably evolve.
 - justice implies two ideas: general and
particular justice.
-general justice: ones actions are generally
just when we are wholly virtuous in all
matters relating to others.
-particular justice- treating others fairly or
equitably.
• Criticized as a subject of theoretical discussion
and is of no practical values.
• Ambiguities of the concept of natural law must
be ascribed to the ambiguity of the concept of
nature that underlies it.
 Thomas Acquinas: Natural law is the element of divine
wisdom.
It is the means by which rational beings participate in
eternal law.
Classified law into :
a) Lex aeterna / eternal law (God’s plan for the
universe- based on divine reason known only to God
and the blessed who see God in his essence-
everything is subject to eternal law.)
b) lex divina /divine law( as reflected in scriptures and is
God’s positive law)
c) lex naturalis /natural law-human conscious
participation in eternal law produces natural law.
d) lex humana /human law/positive law(supported by
reason and enacted for common good)
• Tenets of natural law are binding on all human
beings.
• It points towards good as well as specific goods.
• Natural law is binding for it is willed by God.
• Force of law depends on extent of its justice and
that is according to rule of reason and the first
rule of law is nature.
• If human law departs from law of nature it is no
longer a law but a perversion of law.
• Human laws are just when they serve the
common good, distribute burdens fairly , promote
religion and are within the bounds of law maker’s
authority.
Social contract , rationalism and natural law
theory
Hobbes(17th cen.):State of nature before social
contract – war-
Self preservation is the great lesson of natural
law.
Law and govt. is necessary as a means of
promoting order and personal security .
To preserve one’s own life, one must give
absolute and unconditional obedience to law.
• However natural law does not gain much
significance in his theory.
• he expresses that main percept of natural law
lies in self preservation.
• also highlight the concept of natural rights-
the idea that man may make certain legitimate
demands on his fellow men.
Locke
• He constructed a natural right doctrine based
on social contract.
• He says state of nature prior to social contract
is not one of brutal horror but a Golden age ,
an Eden before fall.
• Only one thing was lacking – protection to
property.
• To remedy that man renounced the natural
condition and by contract gave up part of his
liberty to sovereign.
• Protection of human entitlements –purpose of
govt.
• It is through exercising reason that men can
and should know what God wills them to do.
• Knowledge of natural law was accordingly
compulsive .
• God’s order as writs in the hearts of all
mankind
• Men are fully instructed by God on how he
ought to live.
• In a pre civil society man has rights and duties
as creatures of God.
• Consent- Express and Tacit /scarce avoidable
consent.
• Tacit consent – obeying law merely because of
one’s presence in society for he is taking
advantage of being in society/ getting the
benefits given by political sovereign.
• Not easy to draw a line between tacit and
express consent.
• Rules can make use of power for public good.
• Central point is trust and those who betrays
may be overthrown.
Rousseau
• Law is the register of general will
• Govt. can be tolerable if it reflects general will.
• Disobedience is morally illegitimate for it
constitutes a failure to discharge a moral
obligation.
• His theory has only tenuous link with natural
law.
• General will has replaced the higher law
standard that natural law has represented.
• The idea of universal natural law common to
all mankind-propounded by Montesquieu,
Hume, Burke(17th &18th cen.)
Montesquieu
• Mankind is influenced by variety of factors-
climate, religion, laws, govt., morals and
customs.
• Structure of society is hence hinged on the
workings of many factors.
• Rejected the social contract theory
Hume
• Believes natural and civil justice derives from
human convention and not in the laws of
nature
• He developed a modern theory of natural law.
• Rules of justice as natural laws since they are
as old and universal as society and human
species, but prior to govt. and positive law.
Burke- Utilitarian natural lawyer
• Considers natural law as the ultimate test of
justice and liberty in all human affairs.
• Relied on eternal principles of truth and
justice
• Uses natural law to attack rules by arbitrary
powers.
Attributes of natural law theory
• Law is law truly , true law when it
encompasses natural law principles
• Lex injusta is non est law
• Unjust laws are not true law
• Natural law consists of rules in accordance
with reason.
• Ordinary human law is only true law if it
confirms to the principles of justice and
morality.
• Laws contrary to natural law cannot be
obligatory.
• what law ought to be
• act as an antidote to legal rigidity
• provides flexibility
• weakens the authority of unjust and immoral
laws
• weakens the capacity to criticize law.
• Formalities in law- irrespective of morality – if rule is
law it is just.
Criticisms
• There is difficulty in defining justice
• Who decides whether a law involves breach of principles of
justice .
• Is the decision making left to everyone’s conscience or to
judges, professional bodies.
• What would be the criteria ?
• And if the basis for valuation is reason, it is difficult to deny
this decision making to anyone.
• What are the consequences of deciding that a law should
not be regarded as law?
• Bentham- natural law is simple and rhetorical non sense.
• Austin- ambiguous and misleading
• Hume-reason in the system of natural law is based on
confusion.
• 19th century – decline of natural law theory
Reasons for decline-
a) natural law was based on reason and
rationalism which could not provide practical
solutions to problems of modern world.
b) Found unacceptable in the age of science.
c) Historical and analytical approaches to study
of law was found to be more realistic and it has
attracted jurists.
Resulted in creation of a new era of positivism.
 • Late 19 th /20 th century- Revival
Reasons:
a) Reaction against 19 th century legal theories
which had the importance of positive law.
b) Realization that abstract or priori
thinking/assumptions were not futile.
c) Positivists approach failed to solve the
problems created by social conditions.
d) Need for recognizing values and standards-
due to world war effects of 20th century and
general moral degeneration in the modern
times.
• Modern natural law theory is no more
abstract and are relative.
• Better deal with practical problems
• To achieve the objective they have taken
support of other approaches to law / other
branches of knowledge.
Thinkers – Emmanuel Kant, Stammler, Kohler,
H.L. A Hart(positivist) Finnis, Lon Fuller
Emmanuel Kant
• Morality arises and can only arise from freedom
• Freedom determines morality
• Human beings do not always act as morality
requires and they lack the holy will .
• Since morality and freedom are one and the same if
the law is in conformity with morality , one can be
forced to obey without forfeiting freedom.
• Positive law is the only possible public
manifestation of moral law and to oppose it is to
oppose the possibility of a community governed by
moral law.
• Any resistance to established legal authority
must be wrong because it undermines the rule
of law and frustrate the achievement of a
community in conformity with moral law.
• He describes human community as a
‘Kingdom of ends’ where the freedom of each
person is honored consistently with freedom
of every other person.
• Subjection even to the will of God is
heteronomy not freedom and it is not moral.
(under the sway of another)
Lon Fuller (20th cen)
He rejected the 17th &18th cen. Rationalist
doctrine of natural rights.
And is against the system of absolute values as is
reflected in classical natural law.
He related law with morality
Search for principles of social order which enable
men to attain a satisfactory life in common.
Emphasize the role of reason in legal ordering.
• ‘Eight Desiderata’: It is described as the
internal morality of law.
• They are internal because they are implicit in
the concept of law.
• They are described as morality bcoz they set
up standards for evaluating official human
conduct.
• Adopted a procedural natural law approach.
• ‘Eight Desiderata’: eight ways/ eight
directions/ eight standards to make law or
right kind of legal excellence.
• Every rule strives to attain legal excellence.
1. Generality (Rules are general)
2. Promulgation (published)
3. Non retroactivity( effect from past)(ordinarily prospective in their
application)
4. Clarity (not unduly vague)
5. Non contradiction (self consistent not contradicting one another)
6. Possibility of compliance(capable of being obeyed)
7. Constancy(relatively stable over time)
8. Congruence between declared rule and official action .(applied and
enforced by authorities in a manner that is congruent with their
content as promulgated)
Failure in any one of these eight directions results not only in a bad
system of law, but also in something that could not be properly called a
legal system at all.
In its absence what exist is merely the exercise of state action.
Defending a kind of natural law traditions - a system of laws must
minimally possess in order to oblige the obedience of citizens.
Fullers’ conception of rule of law.
Stammler and Kohler (Natural law with variable
content)
Stammler
All positive laws is an attempt at just law and is
justice law.
Justice is a harmony of wills or purposes within
the framework of social life.
Wills and purposes vary with time and place .
To understand wills and purposes one must come
into contact with actual world and only then one
can judge what purposes deserves legal
recognition.
• Law should attain relative justice
• Law is valid even if it does not conform to just,
but an attempt be made to bring it near to aim.
• This is natural law with variable content.
Kohler
Law as standard of conduct which is the
consequence of inner impulse that urge men
towards a reasonable form of life , emanates from
the whole and is forced upon the individual.
• In the course of evolution, society will advance
morally and culturally.
• By absorbing culture into considerable law it
can serve its purpose better.
• He framed the jural postulate of time and
place.
The approaches of both Stammler and Kohler
are scientific and logical and are free from right
and a priori principle.
Positivists of 20th century are less positivistic
than they were a very few years ago, and Hart
has attempted to restate a natural law position
from a semi sociological point of view.
H.L. Hart
Certain substantive rules which are essential if
human beings are to live together in close
proximity.
These rules are the minimum content of natural
law, and are related to facts of human condition.
Survival is the principal human goal.
What are the facts of human conditions?
• Human vulnerability- susceptible to physical
attack.
• Approximate equality-minority, women,
children
• Limited resources- Generally of selfish
nature- food ,clothes , shelter
• Limited understandings
• Strength of will
• Natural necessity for minimum protection of
life, person, property and premises.
Law may have any content.
But does not say law is derived from moral
principles or there is necessary link between law
and morals.
Criticisms on Hart’s proposition of facts of
human conditions.
These facts of human conditions are extremely
vague and uncertain – just an appraisal of
character of human condition and do not
depend on sociological investigation.
Finnis
Gave new definition and place to natural law
Law is a set of principles of practical
reasonableness in ordering human life and human
community .
Basic principles of natural law are pre moral.
He sets out certain basic goods for human beings.
Basic goods are objective values in the sense that
every reasonable person must assent to their
values as objects of human striving.
 7 basic goods
1. life- self preservation and self determination
2. Knowledge- preference for true/truth over
false belief.
3. Play- duty/performance
4. Aesthetic experience- appreciation of beauty
5. Sociability or friendship- acting for the sake of
one’s friends’ purposes and well being .
6. Practical reasonableness- making use of one’s
intelligence in identifying problems, shaping
one’s own character.
7.religion- questions of origin of cosmic
(planetary/extra terrestrial/celestial) order ,
human freedom and reason.
Natural law theories are related to ends of law.
These principles have been incorporated in
various legal systems and have become the
golden principle.
Analytical School of thought
Austin- father of analytical positivism-Posits are
mere paraphrasing of Bentham’s theory.
• Austin- ‘Province of Jurisprudence Determined’-
work.
• Bentham-’Limits of Jurisprudence Defined’
• He laid the foundation of +vsm-Philosophy is
utilitarian individualism- both utilitarian and
individualist.
• Function of law is to emancipate the individual
from the bondage and restraints upon his
freedom.
• Once he is left free, he shall be looking after his
welfare.
• Supporter of ‘laissez faire’ principle of economics.
• Ends of law is greatest happiness to greatest no. of
people.
• Utility means property or tendency of a thing to
prevent some evil or to procure some good.
• Consequences of good and evil are respectively
pleasure and pain.
• Purpose of law is to bring pleasure and avoid pain.
• Pleasure and pain are the ultimate standards on
which a law should be judged.
• These eternal irresistible sentiments ought to be the
great subject of study of moralist and legislator.
• Considerations of justice and morality disappear from
this approach.
• Pleaded for codification and condemned judge made
law.
• Right relationship between positive law and morality is
expressed in the maxim ‘obey punctually and censure
freely’.
• Bentham stressed on the general moral duty to obey the
law even there is no freedom, and this duty is to
become stronger in a democratic government with
freedom.
• Obey punctually but criticize freely is ‘the motto of the
good citizen’.
 • His emphasis on reforms and social welfare made
him one of the creators of modern collectivist
welfare state.
• Contributions:
a)Advent of legal positivism
b)Transition from natural law to rigorous
positivism-Major development in the history of
modern legal theory .
c) New directions for law making and legal research.
d) Propounds legal theory as a science of
investigation as distinct from the art of rational
conjecture/inference.
 Criticisms
a) Abstract and doctrinaire rationalism
b) Overestimated the power of legislator
c) Underestimated the need for individual discretion and
flexibility in application of law.
d) Misconception regarding the balance between individual
and community interest.
e) Will of unlimited number of individuals is not equal to
community will.
f) Propositions lacks practical applications
g) Pleasure and pain cannot be the sole test to judge the law.
h) Emphasis to analysis of law and proposed the ends of law.
i) Ends of law is to remove shackles in individual freedoms
and promoting self progress.
j) Law is a means of regulating or restricting liberty (modern
world)
Hans Kelsen , Pure theory of Law
• Normativism is distinct from empirical
tradition of legal positivism.
• Rejects natural law theory for it confuses law
with morality
• Rejects legal positivism for its confuses law
with facts.
• He rules out both appeal to morality and that
to facts.
• Law consist of norms and norms cannot be
derived from facts , but only from other
norms.
Norms are regulations setting forth how persons
are to behave.
And positive law is a normative order regulating
human conduct in a specific way.
Norm is an ought proposition , it expresses not
what is or must be, but what ought to be, given
certain conditions, its existence can only mean its
validity.
‘Ought’ here does not refer to moral obligation but
to normative form of legal propositions.
Reaction of law consists in a measure of coercion
enacted by legal order.
• Morality works by direct motivation i.e., it
regulates the behaviour of one individual.
• Law is indirect and it affects not only the
person whose conduct is in question but also
the one who is to apply the sanction.
• Religious norms are nearer to law than morals
and it provides for supernatural sanctions.
• Norm can only be derived from another norm.
• Since norms are concerned with human
conduct, there must be some ultimate norm
on which all the others rest. This is Grund
norm.
• Describes legal process as a hierarchy of norms,
the validity of each(apart from basic norm)
norm rest upon a higher norm(Constitution)
• He does not negate the value of sociology of
law.
• Sociology of law presupposes the normative
concept of law.
• He makes a distinction between role of legal
scientist and that of a law making authority
such as judge. Former can only describe but not
prescribe and therefore you cannot exercise
any choice open to the latter.
 Any breach of legal norm as a delict/wrong.
Sanction -an essential characteristics of law, hence no
conduct can amount to a delict unless a sanction is
provided for it.
Kelsen’s goal is a pure science of law, it is not a theory
of pure law.
He says study of law has been adultered by other
disciplines and is perfectly understandable.
These disciplines deals with subject matter closely
connected with law.
He insists on delimiting the cognition of law against
these disciplines so as to avoid uncritical mixture of
methodologically different disciplines which obscures
and confuses the essence of science of law.
Modern trends in analytical positivism
Analysis of the existing conceptual framework of
and about law.
Construction of new conceptual framework with
accompanying terminologies.
Rational justifications of institutions and
practices , existing and proposed.
 H.L.A. Hart
Propositions:
Legal system is a system of social rules.
Rules are social in two senses:
a) Rules regulate the conduct of members of
society- Guides to human conduct and are
standards of criticism of such conduct.
b) Rules derive from human social practices.
Rules make certain conduct obligatory .Those
rules are basically of two types:
• Primary rules – duty imposing rules( criminal
law/tort)
• Secondary rules- power conferring rules(which
facilitates making of contracts, wills,
composition and powers of courts, legislatures,
other official bodies)
These are interrelated rules and it ensures the
quality of law.
Heart of legal system
Secondary rules are divided into three:
• a) Rules of adjudication
– Conferring power to authority to pass judgments,
order of payment of damages…
b) Rules of change
- Regulates the process of change by conferring
power to enact legislation in accordance with
procedures or to make changes in legal
relationship
c) Rules of recognition
- Determines the criteria which governs the validity
of rules of the system.
Further there are two minimum conditions
necessary and sufficient for the existence of a legal
system:
Rules of behaviour which are valid according to
system’s ultimate criteria of validity(Const.)must be
obeyed generally- This has to be satisfied by private
citizens and they may obey for any reason.
These rules of recognition, change and adjudication
must be effectively accepted as common public
standards of official behaviour by its officials and
these officials have to appraise critically their own
and each other’s deviations and lapses.
• He sees a core of good sense in natural law
• If society is not to be a suicide club, the legal
orderings of human social communities must
naturally embody a certain number of basic
prohibitions what he calls a minimum content
of natural law.
• He distinguishes law and morality in terms of
four cardinal features of morality (discussed
earlier )
• 1)Importance 2) immunity from deliberate changes
3)voluntary character of moral offence 4) form of
moral pressure)
• He does not believe that law is derived from
morality.
• Invalidity is different from immorality
• Internal aspect of law is recognized by Hart.
• Internal aspect includes a belief that there are
moral reasons for confirming to the law’s
requirements and a moral justification of its
use of coercion.
 Major postulates :
1) Laws are commands of human beings
2) There is no necessary connection between
law and morals
3) Analysis of legal concept is worth pursuing
4) It is distinct from sociological and historical
enquiries and critical evaluation
5) Legal system is a closed logical system in
which correct decisions may be deduced from
predetermined legal rules by logical means
alone.
• Moral judgments cannot be established by
rational argument, evidence or proof.
• Non cognitivism in ethics-A non-cognitivist
theory of ethics implies that ethical sentences
are neither true nor false, that is, they lack
truth-values.
• eg., If killing an innocent human is always
wrong, and all fetuses are innocent humans,
then killing a fetus is always wrong.
 Both Hart and Kelsen claims about the nature of
law based on three thesis:
1) Separability thesis- denies the existence of
necessary moral constraints on the content of
law
2) Pedigree thesis- Articulates necessary and
sufficient conditions for legal validity in
respect of how or by whom law is
promulgated.
3) Discretion thesis: asserts that judges decide
hard cases by making new law.
• Conflict between natural law and positive law?
• Reconciliation?
• Criteria for justification?