Jurisprudence and Legal

Theory

Topic: Schools of Jurisprudence

Dr. Md. Nayem Alimul Hyder

Associate Professor
Department of Law
BAIUST
What is law?
Law may be defined as a large body of rules and regulations based mainly on general
principles of justice, fair play and convenience, which have been worked out and
promulgated by governmental bodies to regulate human activities and define what is, and
what is not permissible conduct in various situations. It is a pattern of conduct to which
actions do, or ought to conform.

General meaning
• Law is a set of rules created by state institutions which make laws through the authority
of the state. The laws have sanctions which are recognised by the state and enforced by
state-authorised bodies.
• In its judicial sense, 'Law' means a body of rules of conduct, action or behavior of
persons, made and enforced by the state.
• It expresses a rule of human action.
• It is something that touches our lives on a daily basis, it governs what we can and cannot
do, it is used to settle disputes, to punish and to govern the relationships between the
parties.
• Laws play a central role in social, political and economic life.
 Schools of jurisprudence

Jurisprudence is the study or philosophy of law. It considers the cause

and idea of law. Law has an unpredictable idea. Its comprehension
differs from individuals to individuals. Everybody has an alternate
perception of the law.

The following are the five schools of jurisprudence:

1. Analytical school
The major premise of analytical School of jurisprudence is to deal with
law as it exists in the present form.
Analytical school is known in various names such as:

• The Austinian school since this methodology is set up by John

Austin.
• The imperative school since it regards law as the direction
(command) of the sovereign.
• The Positivist School because the exponents of this school are
concerned neither with the past nor with the future of law but
with law as it exists i.e., with law `as it is` (positum), the word
positivism was given by august comete.

Truth be told, it was Austin who propounded the theory of positive

law, the establishment of which was laid by Bentham
One of the functions of analytical school is, as the name suggest,
analysis or decomposition of law into irreducible elements.
•John Austin
Austin is known as the father of English Jurisprudence.
According to him,
'Law is a command of sovereign backed by a sanction.'He
regards law as the direction of the politically powerful
authority backed by a sanction. This means that Law is
whatever the Law-Maker (the one with the authority to
make laws) says and it supersedes judgements by
judges/precedents etc.

He distinguishes law from morality. He divides law into two

parts:
Divine law: Law set by God for men
•Human Law: Laws made by men for men.

Austin accepts 3 kinds of laws:

• Declaratory or Explanatory Laws: They are not

command but are already in existence and are
passed only to explain the law which is already in
force.
• Law of Repeal Austin does not treat such laws as
commands because they are in fact the revocation of
•Merits:
Simple and clear definition of Law
•Lays down exact boundaries within which jurisprudence has to work.
•Austin's positivists approach further laid down the foundation of English jurisprudence.
•Has an important and Universal Truth Law is created and enforced by the State.

•Demerits:
Customs overlooked: In the early times, not the command of any superior, but customs
regulated the conduct of the people. Therefore, customs should also be included in the
study of jurisprudence.
•Permissive character of the law ignored
•No place for judge made law: Nobody, in modern times, will deny that judges perform a
creative function and Austin's definition of law does not include it. · Conventions:
Conventions of the constitution, which operate imperatively, though not enforceable by
court, shall not be called law, according to Austin's definition, although they are law and
are subject matter of a study in jurisprudence. Austin does not treat international law as
law because it lacks sanction. Instead, he regards international law as mere positive
morality.
•Rules set by private persons: Austin's view that 'positive law' includes within itself rules
set by private persons in pursuance of legal rights is an undue extension because their
nature is very vague and indefinite.
•Sanction is not the only means to induce obedience: According to Austin's view, it is the
sanction alone which induces the man to obey law. Lord Bryce has summed up the
motives as indolence, deference, sympathy, fear and reason that induces a man to obey
law.
•Command over emphasized: In modern progressive democracies law expression of the
general will of the people. Therefore, a command aspect of law has lost its significance in
the present democratic setup. This definition cannot be applied to a modern democratic
country.
•Does not cover international law
2. Sociological school

The Sociological school of Jurisprudence advocates that the Law and society are
related to each other.
Law is social scenery. This school argues that the law is a social phenomenon
because it has a major impact on society. This school laid more emphasis on the
legal perspective of every problem and every change that take place in society.
Law is a social phenomenon and law has some direct or indirect relation to society.
Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.
According to this school the socio-economic problem of the present time cannot
be solved by means of the existing laws.
This school is based on logic, not metaphysical entities or divinities.
Rosco pound

Roscoe Pound concentrates more on functional aspect of law. So, his approach
may also be known as functional approach. According to him 'The end of law
should be to satisfy a maximum of wants with a minimum of friction.' He
demands for maximum happiness with less disagreement.

He has given a theory of 'Social engineering' which means a balance between

the competing interests in society. Social means group of individuals forming a
society. Engineering means applied science carried out by engineers to produce
finished products, based on continuous experimentation and experience to get
the finished product by means of an instrument or device. He thinks that jurist
should work with a plan and accordingly various interests of society should be
protected by law.
Demerits:
• Classification of interest is not useful. Since the social interests always change with the society
and to put them into specific order then they will lose their character and importance.
• This word social engineering is used to indicate the problem that law faces, the objectives that
have to be fulfill and the method which it will adopt for the purpose of interest.
• No ideal scale of values with reference to interest.
• By the word' engineering' no balance has been made between social needs and interests. Only
this theory simply recognizes or approves it.
• The theory ignores the fact that law evolves and develops in the society according to social
needs and wants.
• The dynamic feature of law is undermined in this theory
• The conflict between social and individual interests is not considered by him.
• Prof. Allen criticized him for focusing on wants and desires to fulfill material welfare which
might be harmful to personal freedom.

Merits
• Has focused on practical implication of law and role of jurists in building a welfare state.
• Considers working of law rather than its abstract concept.
• Regard law as a social institution which may be improved by human effort and to discover and
effect such improvement.
• Lay stress upon the social ends of law rather than sanctions.
• This theory says that legal precepts be used as guides to socially desirable results.
• His idea of functional law led to the creation of functional school
• His theories gave the most influential exposition of the American sociological viewpoint.
3. Historical school

The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861)
Historical School of Jurisprudence describes the origin of law. This school argues that
the law was found not made.
The Historical School believe that law is made from people according to their changing
needs. It believes that law is an outcome of development of the society because it
originates from the conventions, customs, religious principle, economic needs of the
people. Basic source of historical school is custom.
A custom is a traditional and widely accepted way of behaving or doing something that
is specific to a particular society, place, or time. Customs are considered superior to
legislations in this school. The reasons for the emergence of this school are:
It came as a reaction to the natural school of law.
It opposes the ideology of the analytical school of jurisprudence.
Friedrich Carl Van Savigny (1779-1861)
A product of times the germ of which like the germ of State, exists like men as being
made for society and which develops from this germ various forms, according to the
environing the influences which play upon it.

Main points of savingny's theory are:

• That law is a matter of unconscious and organic growth. Therefore, law is found
and made. Law is not universal in its nature. Like language, it varies with people
and age.
• Custom not only precedes legislation but it is superior to it. Law should always
conform to the popular consciousness.
• As laws grow into complexity, the common consciousness is represented by lawyers
who
• formulate legal principles. But the lawyers remain only the mouthpiece of popular
consciousness and their work is to shape the law accordingly. Legislation is the last
stage of law-making and, therefore the lawyers or the jurists are more important
than the legislators.
Merits
• This theory is that law is influenced by the culture and character of the people
• Savigny's theory traced the course of the evolution of law in various societies.
• Savigny's theory lays the seeds for the development of sociological and evolutionary

Demerits
• Inconsistency- One side savigny asserted that the origin of law is in the popular consciousness
and on the other hand argued that some of the principles of Roman law were of universal
application.
• Savigny emphasised the national character of law. While advocating national character of law he
entirely rejected the study of German law and took inspiration from Roman law.
• Volksgeist is not the exclusive source of law- Savigny said that popular consciousness is main
sources of law it is not true. Because some time an alien legal system is successfully transplanted
in another country and sometimes a single personality greatly influences a legal system that is
not a popular consciousness.
• Customs not always based on popular consciousness Many customs and practices have been
declared illegal. Charles Allens criticized him for emphasizing the idea of law made by customs as
he was of the view that customs are not based on the consciousness of people but for the
powerful ruling class.
• Juristic Pessimism- According to Savigny legislation must accord with popular consciousness but
in modern time it is wrong because today's legislation has much power to make law.
• Many things unexplained- He does not explained many things which developed by certain
powerful communities that is in India slavery untouchables etc.
• He ignored the judge made law- Judges has played an important and creative role in the function
of making law but Savigny's theory has taken this role very lightly.
4. Philosophical school
According to the philosophical school, also known ethical or natural school, legal
philosophy must be based on ethical values so as to motivate people for an upright living.
According to this school the purpose of law is maintain social harmony and to maintain to
law and order in society and legal restrictions can be justified only if they promote the
freedom of individuals in the society.

The philosophical or moral school concerns itself mainly with the connection of law to
specific thoughts which law is intended to accomplish. It tries to explore the reasons for
which a particular law has been established.

This school believes in the law of logic and reason.

Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the
law is the result of human reason and its motivation is to hoist and praise human identity.
Grotius
• Founder of international law
• Grotius, Founder of international law, said that a system of natural law may be derived
from the social nature of man.
• He defined Natural law as

The dictate of right reason which points out that an act, according as it is or is not in
conformity with rational nature, has in it a quality of moral baseness or moral necessity.

In this way, he built up a system of natural law that should command universal respect by
its own inherent moral worth. His definition also states that logical application is backed
by moral values.

Merits
• Emphasized morals to describe righteous conduct in society
• Built a system of natural law that should command universal respect by its inherent
moral worth.
• Emphasizes on reasons and origin of law on basis of morals.
• This system of law has been derived from the social nature of man.
• Agreement of mankind concerning certain rules of conduct is an indication that those
rules originated in the right reason.
Demerits

· His theory was based on morality but there is a difference between ethics and morality.
· Ethics are the behavioral pattern of the person whereas morality are the values imbibed
in him.
· Beside morality there are other factors social, economical and political patterns of the
society which are very important for the formation of law.
· Legislation, customs, precedents etc. are also the other sources which are very important
in the formation of law.
· Hugo said that Natural law deserves universal command which is not possible in modern
times because now laws are formed by taking state, people and nature into consideration
and then to make laws according to the need of the society.
· This definition is dependent on logic/reason, something which varies from person to
person, hence there wouldn't be uniformity of law.
· Same goes for moral baseness and necessity as something which may feel morally
correct to one may not to the other and vice versa.
5. Realist school

• Realist School is a type of school which focuses on decisions. It is a branch of

sociological approach
• In actual sense, there is no realistic school. It is known as 'realism' that is actually a
movement which consists of thought and works in law.
• It also focuses largely on the evaluations of any parts of law in respect to its effect
• It also creates a sense of distrust in the traditional legal values and also the concepts
designed so far as they appear to be described what either courts or common
people are actually doing.
• Realists have a pragmatic approach towards understanding jurisprudence and thus
it emphasizes the judicial organization more which is responsible for the application
of the law.
• The realist school of law believes that law is real and co-relates law with reality.
• There are two types of realist school:
1. American Realist: the scholars along with learning from there own experiences, but
also observed the judgements and learned from them.
2. Scandinavian Realists: in this, the scholars believed only in their own experience.
John Chipman Grey:
According to Grey,
The Law of the State or of any organized body of men is composed of the rules
which the courts, that is the judicial organ of the body lays down for the
determination of legal rights and duties.

John is considered as the father of American Realism.

He, according to him, states that codified laws are immaterial unless they are
applied by a judge. He says that law is basically the judgement that the court
passes. He implies that body of written rules are lifeless orders and they are
infused with life when the judge applies it.
Merit
• His theory is relatable to real life
• Gives a chance for own interpretation by people.
• Focuses on 'what law is' and not 'what law ought to be'.
• Observes similar cases in the past as well.

Demerits
• Does not take into account the statute law
• Puts excessive faith on judges.
• Does not consider that the jugdement may include judges personal bias
• This definition is not concerned with the nature of law, rather than its
purpose and ends.
Jerome frank
He is considered one of the most important philosophers of the realist school. He
explained by giving an example of the relationship between the certainties of law in
men by describing it in terms of a father-son relationship. Like a son gets protection
from his father similarly a man gets protection from the law.

Merits
• He states that it is not proper for lawyers and judges to stick to the myth of legal
certainty in the name of precedents or codification.
• He points out constructive work that every lawyer and judge needs to do.
• He gave an emphasize on importance of lawmaking by evaluating facts of each case
under changed social circumstances.
• His view was to maintain balance and to develop law parallel to advancement in
society.
Demerits
• His approach was not considered useful in terms of the law.
• Some critics criticized him on using the Freudian approach of psychological
development of a child in his theory, calling it the Freudian approach of
jurisprudence.
• He exaggerated the human factor in judicial decisions and focused on the
roles lawyers and judges only.
• The realist approach was based on the American system of the judiciary and
thus is not universally applicable.
Immanuel Kant
Law is the sum total of the conditions under which the personal wishes of man can be
reconciled with the personal wishes of another man in accordance with a general law of
freedom.

Kant's legal philosophy is a theory of what the law ought to be. he distinguished
between legal duties and legal rights. He also distinguished between natural rights and
acquired rights. He recognized one natural right of the freedom of man in so far as it can
coexist with everyone else's freedom under a general law. According to Kant, the
function of the State is essentially that of protector and guardian of law. The aim of Kant
was a universal world state.

He differentiated between ethics and laws according to him ethics relates to man
spontaneous acts whereas laws deal with those acts which the man is compelled to do
by the state and society. Ethics deals with inner life or insight or consciousness of the
people whereas laws regulate external conduct of the person. He said that legislation
could be effective only when it represent united will of the people. According to him
justice is relative concept depending on conditions, place, social values etc. in which an
action takes place. He said that laws must be metaphysical derived from reason in order
to be just.
Merit
• He recognized one natural right of freedom of a man in co-existence with other's
freedom in general law
• His aim was universal law state.
• According to him the function of the state is to safeguard law and be the guardian of
the law.
• He states that ethics are the internal consciousness of a person whereas law is the
external conduct of a man.
• Emphasized the united will of people to validate legislation.

Demerits:
• Since his theory entirely based on 'what law ought to be' he forgot to consider the
past and present of the law.
• He denied the concept of natural law which is very important for the existence of
laws.
• He theory has given theoretical differences between ethics and laws but there is no
practical application of them.
• He has also not given importance to other sources like customs which are considered
to be oldest source of law.
Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that
investigates the creation, application, and requirement of laws. Jurisprudence is
the investigation of theories and methods of insight in regards to the law. It has
viable and instructive esteem. Jurisprudence, the scientific study of law,
explores the nature, purpose, and principles of legal systems. The schools of
jurisprudence provide different perspectives on law, offering insights into its
origins, development, and application. The analytical school focuses on law as it
exists, while the sociological school considers the relationship between law and
society. The historical school emphasizes the origin and development of law,
and the philosophical school connects law with ethical values. Lastly, the realist
school examines the impact of court decisions on the legal system. These
schools of thought contribute to a comprehensive understanding of law and its
role in society.