This article on ‘Schools of Jurisprudence: All you need to know‘ was written by Monika Yadav, an intern at Legal Upanishad.
The Latin phrase jurisprudentia, which means “Knowledge of law,” is the source of the English word “jurisprudence.” Jurisprudence, which refers to the study of law and how it is applied, encompasses all of the world’s legal norms. In this article, we will study different schools of law with a few eminent scholars from every school.
Schools of Jurisprudence
Jurisprudence is the theory and study of the law. It examines the origins and principles of law. Legislation has an implausible notion. Its perception varies from person to person. Everyone has a different understanding of the law. The five major schools of jurisprudence are:
- Philosophical or natural school
- Historical school
- Analytical school
- Sociological school
- Realist school
Philosophical or Natural School of Law
Since ancient times, it has held a significant position in the fields of politics, legislation, religion, and morals. It is also referred to as the rule of nature or higher law. According to Dr. Friedman, the evolution of natural law is indeed a saga about humanity’s inability to achieve ultimate justice; as a result, as ideas concerning natural law have changed along with society, so have natural law theories. Natural law once had a divine origin and used to have a religious and supernatural foundation in the Middle Ages, however today it is firmly rooted in politics and the law.
The notion of a universal system controlling all men and inherent rights for individuals is the biggest contributor to the theory of natural law towards the legal system.
Thomas Hobbes (1588-1679)
The foundation of Thomas Hobbe’s conception of natural law was the inherent right to the protection of one’s person and property. He presented his social contract theory about the development of the state. Prior to the “social contract,” man, in Hobbes’ opinion, lived in perpetual terror and anarchy. Life was “poor solitary, terrible brief” in the domain of nature. Men voluntarily engaged in a contract and gave up their rights to the greatest authorities who will defend their lives and property to guarantee their protection.
As a result, the organization of the ruler emerged, subsequently taking the shape of the state. He defended the ultimate power of the monarch using the doctrine of natural law. He noted that law depends on the sovereign’s punishments in his well-known book Leviathan. The real law, in his view, is civil law because the sovereign commands and upholds it. Accordingly, based on the claims made by the Hobbes theory, it is accurate to state that King is infallible and “Rex is Lex” as per Hobbes.
John Locke (1632-1704)
John Locke supported the state’s total supremacy, which diminished the value of the person. As a result of having seen the Glorious Revolution of 1688, he revised Hobbes’ prior theory of the state of nature and proposed a new view of the said social contract. Life in a natural condition, in contrast to Hobbes’ assertion, was joyful and pleasant, despite the property’s lack of security, as per Locke.
Man has made a social compact in which he gives up some of his rights but not all of them, as is suggested by Hobbesian philosophy, to ensure the effective safeguarding of wealth. Consequently, only the right to uphold order and execute the laws of nature was given up by him; all other natural rights of mankind, such as freedom and existence belonged to him. The goal of the government and the legislation would have been to uphold and “guard the natural right” of every person.
Therefore, the state’s laws were lawful and enforceable as long as they served this purpose; however, if they stopped serving this intent, the people would have every right to revolt & destroy the state.
Locke argued in favour of individual freedom and a legally constrained authority. Additionally, Locke’s theory provided support for the laissez-faire philosophy.
Historical School of Law
Friedrich Karl von Savigny established the historical school of law (1779-1861). This School explains how the law came into existence. This college contends that the legal system was ruled to have not been created. Based on the School, individuals create laws based on their evolving requirements. It holds it because the law derives from societal norms, traditions, religious beliefs, and social and economic necessities, it is a product of social growth.
Custom is the primary historical education resource. The custom seems to be a tried-and-true, universally accepted style of acting or carrying out an action that is unique to a certain society, area, or time. In this school, customs are deemed to be more important than laws.
These factors led to the establishment of this school:
- It emerges as a response to the natural school of law.
- It rejects the jurisprudential analytical school’s viewpoint.
Friedrich Karl von Savigny (1779-1861)
A creation of its period, which has its origins in people as being formed for society, much like the State’s germ does, and which assumes various forms according to its surroundings and the influences it is subject to. According to Savigny, law develops naturally and unconsciously. Law is therefore discovered and created. Law is not inherently universal. It evolves with individuals and age, much like languages. Legislation is not only inferior to custom; it also predates it. Law must therefore reflect the general mindset.
As laws become more complex, lawyers who create legal regulations represent the public will. However, lawyers still only serve as the public’s voice, and their job is to mould the law to suit. Lawmakers are less important than lawyers or judges because legislation is the final step in the creation of laws.
George Friedrich Puchta
Puchta was an excellent jurist and Savigny’s disciple; as a result, his thoughts are better and more rational. In place of “law,” he substitutes the word “right.” As per him, men have always lived in harmony, but people behave differently and aren’t treated equally. The concept of law is highlighted by this. State then manifests itself. But the law does not come from either the people or the state on its own.
The Volksgeist is the source of all laws. Like shared language and religion, popular consciousness binds members of a community together. He believed that because customary law seems to be the highest manifestation of the national spirit or Volksgeist, it is greater than law.
Analytical School of Law
Law is the subject of this school, which is still in existence. Its objective is to examine fundamental legal concepts as they are applied in a particular legal system. It holds that the relationship between the law and the state is what matters most. They view the law as a directive coming from the state, which is the sovereign. Imperative School is another name for this institution. The theorist avoids both the past and the future of the law, focusing just on the analysis of law like it is in the present, or positus.
This is the only rationale for referring to this group as the Positive School of Jurisprudence. Since Austin, Bentham is thought to have founded this school in England, it is also known as the Austinian School of Jurisprudence.
Jeremy Bentham (1748-1832)
In England’s history of legal philosophy, Bentham inaugurated a new era. In the contemporary sense of the word, he is regarded as the father of positivism. Dicey drew out Bentham’s views on individualism, the rule of law, and reforms towards the legal system in his well-known book, “Law and Public Opinion.” Expositorial jurisprudence is associated with the law without reference to its moral or immoral character. Censorial jurisprudence is associated with the law relating to its moral or immoral character. While censorship is concerned with the “science of legislation,” or what the law should be, censorship is concerned with the opposite.
According to Bentham, the law is “a compilation of signs declaring an infringement conceived or embraced by the Supreme authority in a nation, regarding the actions to be recognised in a specific case by a specific person or a particular class of person.” Bentham was a proponent of codified law; he denied the theory of natural law and associated law with supremacy and utility in Austin’s view. Bentham believed that natural law subordinated mankind to two sovereign superiors, i.e. pain and pleasure, who alone determine what a person should do or not do.
Bentham believed that only laws can be preserved that supported the four objectives of protection, abundance, equality, & survival. As an individualist, Bentham thought that the goal of the law is to liberate people from slavery and other restrictions on their freedom. He established utilitarianism as a philosophy. This idea contends that the realisation of the utility principle is the proper goal of the legislation. He defined “Utility” as a thing’s ability or propensity to stop bad things from happening or bring about good things.
John Austin (1790-1859)
The “father of English Jurisprudence” is regarded as Austin. He was an army officer, and his writings exhibit the rigour of army regulations. He was inspired to apply the same methodology to the formal explanation within the law in England after becoming fascinated by the scientific study of Roman law. He only focused on positive law in his research and used analytical techniques.
Positive law was defined by Austin as “laws properly so-called” as opposed to morality and other laws, which he referred to as “laws improperly so-called” because they lack the authority and support of the state. Austin identifies the following four crucial characteristics of positive law: 1. Command, 2. Sanction, 3. Duty, and 4. Sovereignty.
He was the first to classify jurisprudence as a branch of law that was related to the evaluation of legal ideas. Austin was the one who made the distinction between positive law and positive morality, which has no legal standing. Ideals and justice have no place in the law under Austin’s positive system. His positive law has been founded on the division of morality and the law. Command, in his opinion, is “the key to the science of jurisprudence”.
Command, duty, and sanctions are said to be the three main components of positive law in his work “The Province of Jurisprudence”. Austin also acknowledges the existence of three categories of laws that, while not commands, can still be regarded as falling under the purview of the law. These categories are as follows:
- Declaration of laws
- Revocation laws
- Imperfect obligation laws.
Sociological School of Law
This institution promotes the idea that society and the law are intertwined. Law is the social landscape. This school contends that because of the law’s significant influence on society, it is a social phenomenon. The legal aspect of each issue and social transformation was given more weight at this university.
Law is a societal phenomenon, and it is connected to society either directly or indirectly. It emphasises striking a balance between the interests of the individual and the state. This school holds that the current laws cannot be used to address the socio-economic issues of the day. This institution is founded on reason, not on gods or other metaphysical beings.
Roscoe Pound focuses more on the practical side of the law. Thus, the term “functional approach” may also apply to his method. He asserted that “the goal of legislation should be to fulfill the greatest number of desires with the least amount of friction.” He demands the greatest amount of harmony with the fewest conflicts.
He presented a notion of “Social engineering,” which refers to striking a balance among conflicting social objectives. Social refers to a collection of people creating a society. Engineering is the application of science to create finished products by engineers, and it is built on ongoing research and expertise to create the end product using an instrument or equipment. He believes that lawyers should have a strategy and that various social interests should be safeguarded by the law following that strategy.
Three categories have been established for the interest:
Personality interests include integrity of the body, reputation, freedom from infraction, and conscience freedom. For instance, criminal law, contract law, and tort law. domestic relations’ best interests maintenance, parent-child relationships, and marriage. genuine substance interest inheritance, professional flexibility, and property.
Public interests include those related to state preservation, trust administration, charitable endowments, territorial seas, the environment, and other things.
Social Interests are the claim, demand, or want knowing as social interests are generalised as a claim of social groupings and are considered about social life.
Social solidarity is the tenet of Duguit’s sociological school of thought. The strength of society is reflected in social solidarity. According to Duguit, there are primarily two categories of societal needs:
- Common Needs that are met by cooperation.
- Negative needs which the trade of services satisfies. Everyone needs the assistance of others to survive. Without the assistance of other states, still not a state can exist. One cannot produce, so he must rely on others for all of his needs. The reliance is referred to as social solidarity. The division of work is required for this goal. The division of labour will meet all of society’s needs. This way of thinking is referred to as social solidarity.
Realistic School of Law
Law, according to realists, is just what courts are doing and say since judges are the ones who created it. They view judges as legitimate legislators. Realists hold that court decisions weren’t solely based on formal, abstract law but also take the personalities of the justices and attorneys into consideration. Realists hold that “certainty of law is a myth,” and only judge-made laws are legitimate.
They place no value on laws passed by legislative bodies. The formalistic stance of analytical jurists like Austin, Bentham, Stuart Mill, and others who were ardent advocates of the British Empirical School has protested against realism. Realists disagree with the significance of legal language because they see it as a tool used to stifle legal doubt.
Karl Llewellyn (1893-1962)
Faculty of law at Columbia University, Karl Llewellyn. In his statement, he suggests evaluating the law in words of its real effects rather than placing much weight on formal conceptual rules. He views the law as a tool for achieving social goals. Law, in his words, is “what officials do about conflicts.” He stated that because society develops more quickly than the law, it is necessary to continually assess how the law responds to current social issues.
Several factors affect court decisions, Karl thought it ludicrous to define law simply on the basis of legal principles and conventional legal theory. He was the only one to emphasize ongoing, systematic study and analysis of the law through the judicial process in light of evolving conditions.
Oliver Windell Holmes
Oliver Windell Holmes analysed the law from the perspective of “the bad man,” that is, a person who was appearing in the courtroom as an accused or delinquent. As per him, the judge’s job is to administer justice in the subject at hand, and if doing so called for an innovative interpretation already in place, he should use it. The US Court judge Justice Holmes served for a considerable amount of time. He underlined that “the law’s life has not been based on reasoning, but rather, experience. In his own words, he noted:
Because that rule only contains the axioms & corollaries of textbook mathematics, it can’t be treated even though it represents the tale of a nation’s growth over several centuries.
Judges and attorneys, in Justice Holmes’ opinion, are in a good situation to comprehend the practical issues affecting cases that are brought prior to them for adjudication because they are familiar with the historic, sociological, and financial components of the law. He claimed that judges must consider precedent in cases when the law is unclear.
Law is the subject of the science of jurisprudence. It is a branch of science that looks into how laws are made, used, and enforced. The study of legal doctrines and analytical techniques is known as jurisprudence. It is useful and illuminating.
There are five legal schools. There needs to be research and analysis to support the assertion of the goal and logic of the legislation, despite the fact that schools of law have attempted to address some of the flaws in the legislative process and enactment processes. Furthermore, rather than taking a theoretical stance, it is preferable to consider how laws are implemented.
- Subodh Asthana, Schools of Jurisprudence, Available at: https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/schools-jurisprudence-thinkers/ (Accessed: December 01, 2022).
- Zainul Rizvi, Introduction and Schools of Jurisprudence, Available at: https://indianlegalsolution.com/introduction-schools-of-jurisprudence/ (Accessed: December 01, 2022).
- Devil’s T K, Definition of Law and Schools of Jurisprudence, Available at: https://www.legalserviceindia.com/legal/article-6240-definition-of-law-and-schools-of-jurisprudence.html (Accessed: December 01, 2022).