Sasi K.G.
01. Meaning of the term jurisprudence
“Laws which one person can compel another to observe are called Positive
Laws (Jus in the sense of Law); and their effect always consists in this, that
a duty is imposed upon one person which he can be compelled to perform at the
will of some other. The latter has a power to act (Jus in the sense of a Right)
; the former is under a necessity of acting (necessitas, officium, in modern
Latin obligatio, duty, obligation).(a) Neither this power nor this necessity
can exist without the other;(b) Jus et obligatio sunt correlata.”[i] The early propagators of
Jurisprudence were dealing with this branch of knowledge with such positive
outlook, as they used to call it, though the modern advocates of Jurisprudence
disagree how positive it is considered in quantitative analysis.
01. Etymology of Jurisprudence
The English word is based on the Latin maxim jurisprudentia:
juris is the genitive form of jus meaning "law", and prudentia
means "prudence" (also: discretion, foresight, forethought,
circumspection; refers to the exercise of good judgment, common sense, and even
caution, especially in the conduct of practical matters). The word is first
attested in English in 1628,[7] at a time when the word prudence had the
meaning of "knowledge of or skill in a matter". The word may have
come via the French jurisprudence, which is attested earlier.
02. What is Jurisprudence?
It is believed that Romans
were the first who started to study what is law. The Latin word ‘Jurisprudentia’
means Knowledge of Law or Skill in Law. Most of our law has been taken from
Common Law System. Bentham is known as Father of Jurisprudence. Austin took his
work further. Bentham was the first one to analyse what is law. He divided his
study into two parts:
1. Examination of Law as it
is- Expositorial Approach- Command of Sovereign.
2. Examination of Law as it
ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the
idea that law is command of sovereign. The structure of English Legal
System remained with the formal analysis of law (Expositorial) and never became
what it ought to be (Censorial). There can be no goodness or badness in law.
Law is made by the State so there could be nothing good or bad about it.
Jurisprudence is nothing but the science of law, which has been defined by many
scholars in too many ways.
03. Definitions of Jurisprudence
Roman Jurist, Ulpian defines Jurisprudence as
"the observation of things human and divine, the knowledge of just
and unjust."
J. Stone said that it is a lawyer’s
extraversion. He further said that it is a lawyer’s examination of the
percept, ideas and techniques of law in the light derived from present
knowledge in disciplines other than the law.
Austin defines Jurisprudence as the "Philosophy of Positive Law".
He said that “Science of
Jurisprudence is concerned with Positive Laws that is laws strictly so
called. It has nothing to do with the goodness or badness of law. This has
two aspects attached to it:
1. General Jurisprudence-
It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence-
It is the science of any actual system of law or any portion of it. Basically, in
essence they are same but in scope they are different.
Salmond’s Criticism of Austin
He said that for a concept to
fall within the category of ‘General Jurisprudence’, it should be common in
various systems of law. This is not always true as there could be concepts that
fall in neither of the two categories.
Holland’s Criticism of Austin
Holland said that it is only
the material which is particular and not the science itself. Holland defines Jurisprudence as "the
Formal Science of Positive Law". He says "Jurisprudence
deals with the human relations which are governed by rules of law rather than
with the material rules themselves." "positivism" means that laws are
commands. The second meaning is that the, law as "it is" actually
laid down has to be kept separate from the law that "ought to be". It is an analytical science
rather than a material science.
1. Holland said that Positive Law means the general
rule of external human action enforced by a sovereign political authority.
2. Holland simply added the word ‘formal’ in
Austin’s definition. Formal here means that we study only the form and not
the essence. We study only the external features and do not go into the
intricacies of the subject. According to him, how positive law is applied and
how it is particular is not the concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’
is that it describes only the form or the external sight of the subject and not
its internal contents. According to Holland, Jurisprudence is not concerned
with the actual material contents of law but only with its fundamental
conceptions. Therefore, Jurisprudence is a Formal Science.
4. This definition has been criticized by Gray and Dr.
Jenks. According to them, Jurisprudence is a formal science because it is
concerned with the form, conditions, social life, human relations that have
grown up in the society and to which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it
is a systematized and properly co-ordinated knowledge of the subject of
intellectual enquiry. The term positive law confines the enquiry to these
social relations which are regulated by the rules imposed by the States and
enforced by the Courts of law. Therefore, it is a formal science of positive
law.
6. Formal as a prefix indicates that the science deals
only with the purposes, methods and ideas on the basis of the legal
system as distinct from material science which deals only with the concrete
details of law.
7. This definition has been criticized on the ground that
this definition is concerned only with the form and not the intricacies.
Holland’s Definition- Jurisprudence means the
formal science of positive laws.
Salmond defines Jurisprudence as the "Science of the
first principles of civil law". Here law stands for law of land. In this sense it
has three kinds i.e.
1. Systematic jurisprudence.
Existing actual legal system in past or in present.
2. Legal History. Process of historical
development.
3. Legislation. To set forth
law, as it ought to be.
According to Salmond, there are three kinds of laws that
govern the conduct of human in a society.
·
Theologian Laws - derive their authority from a divine or superhuman
source intended to regulate human conduct as well as beliefs and are enforced
by spiritual rewards or penalties in the other world (ultra-mundane
sanctions)
·
Moralist Laws - Man-made that exist in all societies, both primitive
and most civilized. There is no definite authority to enforce the laws, but the
public.
·
Jurist Laws - Regulates external human conduct only and not inner
beliefs. They can exist in politically organized societies, which has a Government.
They are enforced by courts or judicial tribunals of the society which applies
a variety of sanctions ranging from fines to capital punishments.
Salmond has also said that Jurisprudence
is Science of Law. By law he meant law of the land or civil law. He
divided Jurisprudence into two parts:
1. Generic- This
includes the entire body of legal doctrines.
2. Specific- This deals
with the particular department or any portion of the doctrines.
‘Specific’ is further divided
into three parts:
1. Analytical, Expository or Systematic- It deals
with the contents of an actual legal system existing at any time, past or the
present.
2. Historical- It is concerned with the legal
history and its development
3. Ethical- According to him, the purpose of any
legislation is to set forth laws as it ought to be. It deals with the ‘ideal’
of the legal system and the purpose for which it exists.
Criticism of Salmond- Critics say that it is not
an accurate definition. Salmond only gave the structure and failed to provide
any clarity of thought.
Keeton considered Jurisprudence
as the study and systematic arrangement of the general principles of law.
According to him, Jurisprudence deals with the distinction between Public and
Private Laws and considers the contents of principle departments of law.
Roscoe Pound described Jurisprudence as
the science of law using the term ‘law’ in juridical sense as
denoting the body of principles recognized or enforced by public and regular
tribunals in the Administration of Justice.
Dias and Hughes- They believed Jurisprudence
as any thought or writing about law rather than a technical exposition of a
branch of law itself.
Conclusion- Thus, we can safely say
that Jurisprudence is the study of fundamental legal principles.
Scope of Jurisprudence-
After reading all the above mentioned definitions, we would find that Austin
was the only one who tried to limit the scope of jurisprudence. He tried
to segregate morals and theology from the study of jurisprudence. However, the study of
jurisprudence cannot be circumscribed because it includes all human conduct in
the State and the Society.
Approaches to the study of
Jurisprudence- There are two ways
1. Empirical- Facts to Generalization.
2. A Priori- Start with Generalization in light of
which the facts are examined.
Significance and Utility of
the Study of Jurisprudence
1. This subject has its own intrinsic interest and value
because this is a subject of serious scholarship and research; researchers in
Jurisprudence contribute to the development of society by having repercussions
in the whole legal, political and social school of thoughts. One of the tasks
of this subject is to construct and elucidate concepts serving to render the
complexities of law more manageable and more rational. It is the belief of this
subject that the theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps
in the logical analysis of the legal concepts and it sharpens the logical
techniques of the lawyer. The study of jurisprudence helps to combat the
lawyer’s occupational view of formalism which leads to excessive concentration
on legal rules for their own sake and disregard of the social function of the
law.
3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.
3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law
because it throws light on basic ideas and fundamental principles of law.
Therefore, by understanding the nature of law, its concepts and distinctions, a
lawyer can find out the actual rule of law. It also helps in knowing the
language, grammar, the basis of treatment and assumptions upon which the
subject rests. Therefore, some logical training is necessary for a lawyer which
he can find from the study of Jurisprudence.
6. It trains the critical faculties of the mind of the
students so that they can dictate fallacies and use accurate legal terminology
and expression.
7. It helps a lawyer in his practical work. A lawyer always
has to tackle new problems every day. This he can handle through his knowledge
of Jurisprudence which trains his mind to find alternative legal channels of
thought.
8. Jurisprudence helps the judges and lawyers in
ascertaining the true meaning of the laws passed by the legislators by
providing the rules of interpretation. Therefore, the study of jurisprudence
should not be confined to the study of positive laws but also must include
normative study i.e. that study should deal with the improvement of law in
the context of prevailing socio-economic and political philosophies of time,
place and circumstances.
9. Professor Dias said that ‘the study of
jurisprudence is an opportunity for the lawyer to bring theory and life into
focus, for it concerns human thought in relation to social existence’.
Relationship of Jurisprudence
with other Social Sciences
1. Sociology and Jurisprudence- There is a branch
called as Sociological Jurisprudence. This branch is based on social
theories. It is essentially concerned with the influence of law on the society
at large particularly when we talk about social welfare. The approach from
sociological perspective towards law is different from a lawyer’s perspective.
The study of sociology has helped Jurisprudence in its approach. Behind all
legal aspects, there is always something social. However, Sociology of Law is
different from Sociological Jurisprudence.
2. Jurisprudence and Psychology- No human science
can be described properly without a thorough knowledge of Human Mind. Hence,
Psychology has a close connection with Jurisprudence. Relationship of
Psychology and Law is established in the branch of Criminological
Jurisprudence. Both psychology and jurisprudence are interested in solving
questions such as motive behind a crime, criminal personality, reasons for
crime etc.
3. Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code- This could be found in relation to Natural Law.
3. Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code- This could be found in relation to Natural Law.
b. Positive Moral Code- This could be found in
relation to Law as the Command of the Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert positive ethics.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert positive ethics.
e. Jurisprudence believes that Legislations must be based
on ethical principles. It is not to be divorced from Human principles.
f. Ethics believes that No law is good unless it is based
on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to criticize the law.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to criticize the law.
h. However, Austin disagreed with this
relationship.
4. Jurisprudence and Economics- Economics studies
man’s efforts in satisfying his wants and producing and distributing wealth.
Both Jurisprudence and Economics are sciences and both aim to regulate lives of
the people. Both of them try to develop the society and improve life of an
individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History- History studies past
events. Development of Law for administration of justice becomes sound if we
know the history and background of legislations and the way law has evolved.
The branch is known as Historical Jurisprudence.
6. Jurisprudence and Politics- In a politically
organized society, there are regulations and laws which lay down authoritatively
what a man may and may not do. Thus, there is a deep connected between politics
and Jurisprudence.
Meaning of the term Jurisprudence
Jurisprudence is the science of legal principles and philosophy of law,
which indicates the entire system of legal doctrine. In short it is the study
of the structure of legal system, while jurist means a legal scholar, one who
is versed in law.
02. Norms and the normative system
Human laws are not in themselves statements of fact, they
are rules or norms, which prescribe a course of conduct, and indicate what
should happen in default. Whether the norm itself is a correct statement within
a particular system is another matter; this will depend not on factual
verification but on whatever tests are accorded by that system. The sanction,
however, is not usually connected in an empirical sense with the rule or its
breach, but is merely indicative of what the rule itself prescribes, as the
consequence of non-compliance.
Hence, normative rules must be carefully distinguished
from physical laws, which state causal connections. Physical laws are subjected
to verification, that is, they can be true or false; but the notion of truth or
falsity is inapplicable to normative rules. Such rules simply state what should
or "Ought to" happen. The use of the word "ought" does not
necessarily imply moral obligation; the "ought" merely relates to the
duty of compliance with the rule on pain of suffering the prescribed penalty.
However, the legal "ought" may in some instances correspond with the
moral "ought".
Thus the notion that a statement that something
"ought" to be done is not to give a factual description but to
prescribe a course of conduct based on the implication that reasons exist for
so acting, and also on the existence of standards and criteria of appraisal, by
which those reasons may be judged.
A rule of law, however, differs from this in that, it
does not necessarily imply that reasons for compliance could be sought and
perhaps given, but rather that it is derived from a valid authority. Such an
authority can consist in another norm.
Arguments about what the law
should be are normative; normative legal theory might be considered a
particular branch of political and moral philosophy.
One of the most fundamental distinctions in legal theory
is that between "positive legal theory" and "normative legal
theory." This post provides a very brief introduction to the distinction,
aimed at law students (especially first years) with an interest in legal
theory.
The core idea of the distinction between positive and
normative legal theory is simple:
·
Positive legal theory seeks to
explain what the law is and why it is that way, and how laws affect the world,
whereas
·
Normative legal theories tell
us what the law ought to be.
Thus, a positive theory of
tort law might seek to explain what causal forces have produced the existing
principles of tort law, whereas a normative theory of tort law would tell us
what rules of tort liability would be best, right, or justifiable. Or more
simply: positive legal theories are about facts and normative legal theories
are about values.
03. Different types of normative systems
From the viewpoint
of their form
rather than their
contents, norms may be
autonomous or heteronomous,
absolute or hypothetical,
abstract or concrete, and
original or secondary.
Autonomous norms
presuppose the identity of the norm-forming and obligated subjects. In an
autonomous norm, the norm-forming subject by virtue of the norm he stipulates,
imposes an obligation upon himself and thus becomes an obligated subject.
Autonomous norms appear mainly in ethics. In jurisprudence, autonomous norms
are indicative of that type of lawmaking whereby a nation gives itself laws.
The dichotomy autonomy-heteronomy serves the purpose of differentiation between
the various forms of government, autonomy indicating democracy and heteronomy
autocracy.
Heteronomous norms
are norms in which the norm-forming and the obligated subjects remain two
independent factors. The first manifests his will and gives commands, and that
which is so stipulated becomes an obligation imposed on the latter.
Absolute norms are
norms in which the command contained therein is not made subject to any
limitation or qualification.
Hypothetical norms
are norms in which the command is conditional: if there is B, A ought to be.
Apart from the conditioned substance A, there appears the conditioning
substance B. An unperformed obligation may form the contents of the
conditioning substance. The function of the obligated subject Y faces then the
subject X who has not performed his duty, and such function then appears as
punishment.
Abstract norms affect a variable number of obligated
subjects and subject matters which may arise many times. Concrete norms affect
only one obligated subject and a subject matter which may arise only once. This
antinomy is necessarily relative and the same norm may appear as abstract in
relation to another more concrete norm, and as concrete in relation to another
more abstract norm. Original norms do not derive their validity from another
norm; secondary norms, on the other hand, derive their validity from another
norm. This concept is necessarily correlative, i.e., the same norm may appear
as original (primary) in relation to another, lower, relatively secondary norm,
and as secondary in relation to another, higher, relatively primary norm. This
concept leads to the further concept of hierarchy of norms.
04. Legal system as a normative order
Units of Norms
The objects of normative cognition are norms. They may be
either individual norms or groups of norms. Groups of norms are formed by a
varying number of individual norms which, looked upon as a whole, constitute a
unit or system. Examples of such units are the totality of valid norms within a
given religion, or the totality of norms pertaining to ethics, or the entire
legal system of a state. In all these cases there must be a criterion according
to which individual norms are grouped together so as to form a unit. Basically
there are two such criteria, the formal and the material. According to the
formal criterion, all norms that are related as to, form are grouped together.
All norms given by a particular norm giver "may form a unit regardless of
their contents. Contents may be infinitely varied, but the unit cannot contain
norms which would contradict each other, such as "X ought to be" and
"non X ought to be," since no norm-giver can at the same time will X
and its antinomy, non X. According to the material criterion, all norms which
are related as to their contents form a unit. All norms, the contents of which
are in accordance with the Christian love, for example, form a unit of
Christian ethics. On the other hand, any norm which would contradict this principle,
or nor be in accordance with it, would not belong to such unit.
Normative Legal Theory
Normative legal theories, on the other hand, are by their
nature evaluative. Thus, a normative theory of products liability law would
take a stand on the question whether negligence or strict liability is the
better rule. Normative legal theories tend to be entwined with more general
normative theories, e.g. moral or political theories, although this is not
necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue
ethics--three of the most important
general normative theories that have had an influence on the law. There are
three other distinctions that are important to understanding the general idea
of a normative legal theory:
Ideal versus Non-ideal Theory Some normative legal theories are
"ideal"--that is, they are theories about what the best legal rule
would be in the world in which everything was politically possible, the law
could be adequately enforced, and other legal rules that interact with the
subject of the theory could be adjusted to produce the best overall system.
Other normative legal theories are "nonideal"--that is, they are
theories that assume a variety of constraints on the choice of legal rules. For
example, a nonideal theory might take into account political feasibility or it
might take into account the possibility that the system would not provide an
optimal level of enforcement for the rule that would otherwise be best. The
Legal Theory Lexicon entry on second
best explores these ideas in
greater detail.
Justificatory Theories and Critical Theories Normative legal theories also vary in their
"attitude" towards the status quo. You are likely to encounter
normative legal theories that start with the question, "What is the best
justification that be given for such and such a legal rule?" These
justificatory theories have a limited purpose. Dworkin's
theory--"law as integrity"--is an example of a justificatory theory:
Dworkin offers theories that "fit and justify" existing law.
Such justificatory theories do not address the ultimate question,
"What is the best legal rule?" On the other hand, many legal theories
have the opposite purpose--the critique of existing legal doctrine. Thus, a
critical theory might enumerate all of the criticisms that could be made of an
existing legal rule--even though some of the criticisms may rest on
inconsistent premises.
Normative Legal Theories, Political Philosophy, and
Comprehensive Moral Theories:- Another
important issue concerns the relationship of normative legal theory to other
normative theories, especially political philosophy, ethics, and comprehensive
moral theories. Normative political philosophy asks questions about the
normative justification for the state and the normative principles that
establish the ends of and limits on the content of the law. The term
ethics can be defined in various ways--but for our purposes on this, ethics
might be seen as concerned with the morality of individual action outside the
political sphere. A comprehensive moral theory might encompass both
ethics and normative political philosophy. Normative legal theories have
as their domain the normative evaluation of legal substance and
procedure. Normative theories about the law as a whole might be called
"general normative jurisprudence." There can also be normative
theories of particular legal domains--"normative constitutional
theory," "normative tort theory," and so forth.
One picture of this relationship normative legal theory,
on the one hand, and moral and political philosophy, on the other, might be
called "top-down." That is, we might start with a comprehensive
moral doctrine (such as utilitarianism or Kant's version of deontology).
Using the method of deduction, we might try to deduce the principles of
political philosophy and ethics from a comprehensive moral theory, and the
principles of normative legal theory might in turn be deduced from those of
political philosophy and ethics. The top-down approach is exemplified by
some consequentialists, who argue for a comprehensive moral doctrine such as
welfarism or utilitarianism and then derive normative justifications or
criticisms from the comprehensive doctrine and facts about which legal rules
will result in what consequences.
Another possibility is that normative legal theory is
relatively independent of ethics and political philosophy. It is at least
conceivable that one might believe that the realm of interpersonal ethics is
governed by a different set of principles and theories than is the law.
For example, one might espouse deontological ethics, but believe that the laws
should (for the most part) be aimed at maximizing utility.
The Intersection of Positive and Normative Theory
So far, we have been assuming a fairly sharp distinction
between positive and normative legal theory. And for many purposes, assuming
that there is a bright line that separates normative and descriptive legal
theory is a good working hypothesis. Even assuming there is such a bright line,
however, there are relationships between positive and normative legal theories.
Positive Theory in the Service of Normative Theory--One relationship is clear and straightforward. Many
normative theories underdetermine what the legal rules should be in the absence
of substantial information about the effects of the rules. This is most obvious
in the case of utilitarian theories, where information about consequences does
all the real work of determining which legal rule is best. For normative
theories like utilitarianism, positive theory performs an essential service.
Without a positive account of the effects of a given rule choice,
utilitarianism has nothing to say about what rule is best.
Positive Theory as a Constraint on Normative Theory--Another relatively noncontroversial relationship
between positive and normative legal theories arises when a positive theory
that explains why the law has the shape that it does, is taken as imposing a
constraint on normative theory. For example, public choice theory makes certain
predictions about how legislatures will act in response to various incentives.
Some legal rules that might be justified by ideal normative legal theory may be
considered "unrealistic" in light of positive theory. In cases like
this, positive legal theory provides constraints that limit the options
available to normative theory.
Interpretivism and "Law as Integrity"--There is another, more controversial, way that positive
and normative legal theory can interact. Ronald Dworkin's theory of law,
"law as integrity," attempts to combine the aims of positive
doctrinal theory and normative theory. The idea is that a legal theory should
both fit and justify the existing legal landscape. Thus, a Dworkinian theory of
the freedom of speech would need to both fit the contours of the Supreme
Court's decisions and justify those decisions. Of those interpretations of free
speech doctrine that fit the legal topography, Dworkin maintains that judges
should select that interpretation that makes the existing law, "the best
that it can be." Dworkin's view of legal theory blurs the line between
positive and normative legal theory--essentially combining the enterprises that
I have called positive doctrinal theory and justificatory normative theory. As
you might imagine, this is hugely controversial--although that is a topic for
another post.[ii]
05. Similarities and differences of the legal system with other normative systems
Law and Sociology
The distinction between the normative theory and the causal science of
sociology consists in the fact that the object of cognition of the normative
theory is that which orders the social life of people (the legal norms) whereas
the object of cognition of sociology is that which is thereby ordered. This
distinction has not always been sufficiently appreciated, and so the
traditional concept of law has been based on the assumption that the task of
the science of law was not only to study the normative system which regulates
the social life of people but also, and primarily so, the social life itself.
This is how the belief arose that the science of law was and should be a part
of some general social science. Hand in hand with this belief originated the
concept of a sociological science of law or sociological jurisprudence.
Law and Natural Sciences
The concept of natural law is broadly based on the assumption that the
true, perfect, or just law has been given by a supernatural authority, and that
it has been instilled in the human nature. The jus naturale, the jus
naturae, and the jus divinum of the ancient world may be taken in
this sense. It is understood that the natural law is unchanging as far as its
contents are concerned, because nature itself does not change, and because the
creator, as a law-giving authority, does not change his law. Natural law may be
contrasted with the positive law, which is a human- made empirical law with
variable contents. Since it is given by human agencies its contents are
necessarily subject to change. A fundamental problem exists as a result of the
relationship of the natural law to the positive law: which law governs if the
contents of these two laws are not in agreement. According to natural law
theories, the natural law is preferred since it is deemed to be the true and
absolutely proper law, whereas the positive law may act improperly or unjustly.
A critique of this concept of natural law follows:
1. The concept of absolutely true and valid norms is logically impossible
since the absolute validity of norms derived from nothing, nor dependent on
anything, cannot be demonstrated because in the process of cognition, the
cognizing subject must begin with a hypothesis on the strength of which the
norms have validity.
2. The concrete contents of natural law or divine law defy scientific
proof. Consequently, the supposedly objective principles on which natural law
is founded are nothing but the subjective hypotheses of those who concern
themselves with the contents of natural law.
3. The view that natural law is a higher law, which, in the case of
conflict must prevail over the positive law, runs contrary to the fundamental
principle that the process of cognition can be directed only to one independent
system of norms at a time. It is, thus, impossible to cognize what ought to be
according to one legal order and to correct the findings so made by findings
made in another legal order, because both are independent normative systems.
If, however, the natural law is envisaged as a higher law superimposed on the
positive law, then the positive law loses its independence and becomes a part
of the natural law. This would mean that the natural law, and not the positive
law, was in power in America. Since no theory of natural law would admit such a
consequence, the basic problem of conflict remains unsolved.
Law and History
Any happening or occurrence in time may be made the object of systematic
study and may eventually form the political, cultural, or religious history of
nations. Using the historical method, it is possible to study the evolution of
the empirical contents of the several legal orders as they succeeded one
another and determine the origin of these contents, together with the causes
leading to the reception of these contents from one legal order into a
succeeding one. The fundamental noetic basis of the historical method differs
most distinctly from the normative method. It is to be noted that the normative
method does not answer the question why and under what circumstances the norm
was laid down, and to what extent it acted as motive for human conduct. The
historical method, including the legal-historical method, is thus a causal
method. The object of its cognition are occurrences which took place in the
past. The normative method, on the other hand, is not concerned with the
element of time.
Thus, it appears that the historical method stands much closer to the
.sociological method than to the normative method. Should, however, the scope
of the science of law be delimited too widely, so as to include the
sociological examination of the origin, change, and end of the several
legal orders, then it must also include the historical method. The
traditional concept of the science of law (as contrasted with the normative
concept of law) is wide enough to include both the sociological and the
historical school of jurisprudence.
06. Relation of Jurisprudence with other Social Sciences
Jurisprudence is studying law, law is regulating the conduct of
individuals and individuals are living and forming societies. Therefore, law is
an important social phenomenon which is making jurisprudence as a Social
Science. However, there are several other Social Science, like Ethics,
Political Science, Sociology, Psychology etc. Now, it is logical that these
social science should be interlinked with each other at some point. Moreover,
these social sciences could not studied in isolation. In other words, none of
these sciences can be understand with having a fair knowledge of others.
Jurisprudence, being a social science is, in fact, related with other social
sciences.
Jurisprudence and Sociology
Jurisprudence is the study of law and sociology is the study of
society and it is also discusses law but from a different stand-point.
Therefore there is a link between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however, sociology is studying the effectiveness of those legal rules and their impacts on society.
Jurisprudence is concerned with legal rules that actually exists, however, sociology is studying the effectiveness of those legal rules and their impacts on society.
Jurisprudence and Politics
Politics studies the principles responsible for the
governmental organization. Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for
the regulation of human being conduct which are the subject-matter of
jurisprudence. Hence, there is a close connection between the two.
Jurisprudence and Ethics
Ethics is the science of human conduct. It projects an
ideal human behavior, in the light of which it suggests a course of conduct for
individuals living in societies. Whereas, jurisprudence is discussing the
imperative rules, actually existing in the societies. However, those rules are
also connected with the behavior of human beings in societies.
Therefore, both of the science are interrelated.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of
these sciences, there emerged a branch of jurisprudence known as Ethical
Jurisprudence, discussing the ideal human behavior or which is the study of law
as it ought to be.
Jurisprudence and Psychology
Psychology is the ‘science of mind and behavior’,
whereas, jurisprudence is discussing law.
Law is aimed to be followed by individuals, and individuals can only
follow law if they intend to follow.
Therefore, intention is the very basic element behind
every law, and particularly in criminal law the concept of mens rea is having
immense importance. Therefore, jurisprudence and psychology both are closely
inter-related human sciences.
Jurisprudence and Economics
Economics is the science of wealth and jurisprudence is
the science of law.
Economics studies the production and distribution of wealth and law is responsible for establishing a fair distribution of wealth through rules.
Economics studies the production and distribution of wealth and law is responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are
responsible for the increasing rate of criminal activities, which again brings
the two in close relation with each other.
Furthermore, economics aims at improvement of the standards of human lives whereas, this could not possible if a peaceful environment is not available which is possible through the application of laws. Therefore, there is a close relationship between the two.
Furthermore, economics aims at improvement of the standards of human lives whereas, this could not possible if a peaceful environment is not available which is possible through the application of laws. Therefore, there is a close relationship between the two.
Jurisprudence and History
History is the scientific narration of the past events,
whereas, jurisprudence is the science of law. Law has not come into existence
overnight, as a matter of fact, it has developed through ages. History helps
jurisprudence in digging out the origin and evolution of different legal rules.
Owing to its importance, there developed a separate branch of jurisprudence,
known as Historical Jurisprudence. Therefore, it may concluded that there is a
close relation between jurisprudence and history.
07. Schools of Jurisprudence
According to Austin there are two branches of jurisprudence
1. General and
2. Particular Jurisprudence
General jurisprudence relates with the subjects of law as are common to all systems of law. This
field of law is a wider one. Particular jurisprudence is confined only
to study of any actual system of law, it talks about it special or particular
system of law. In both essence is the same but they differ from each other in
their scope. This classification by Austin has been criticized by many jurists
as being unscientific. Professor Holland says that it is vague to think of
general jurisprudence. According to Holland science is science and it cannot be
classified as general or particular. However modern jurists and academicians
identify branches of Jurisprudence as schools of Jurisprudence.
08. Natural Law School of jurisprudence
Natural Law refers to the Principles of Natural right and
wrong and the Principle of Natural Justice. Here, we must use the term ‘justice’
in the widest sense to include to all forms of rightful action. Natural Law is
also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This
law is a Command of the God imposed on Men.
Natural Law is established by
reason by which the world is governed, it is an unwritten law and it has
existed since the beginning of the world and hence, is also called Eternal Law.
This law is called Natural Law as its principles are supposed to be laid down
by god for the guidance of man. It is called Rational Thought because it is
based on reason. Natural Law is unwritten as we do not find it in any type of
Code. Therefore, Natural law exists only in ideal state and differs from law of
a State. Philosophy of Natural law has inspired legislation and the use of
reason in formulating a System of law
Sophocles, Socrates, Plato and
stoic Philosophers
Sophocles in his Antigone
emphasizes the need of upholding the natural law above the dictates of the
emperor. Socrates and Plato through their idealism depicted the human laws
based on virtue. The stoic philosophers developed this view point with the supremacy
of human reasoning.
The law of war and peace- Natural law is the dictate of
the 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 base and moral
necessity.
Immanuel Kant- He gave modern thinking a new
basis which no subsequent philosophy would ignore. In ‘Critique of Pure
Reason’, he set for himself the task of analysing the world as it appears to
human consciousness. Nature follows necessity but human mind is free because it
can set itself purposes and free will. Compulsion is essential to law and a
right is characterized by the power to compel. The aim of Kant was a universal
world state, the establishment of a republican constitution based on freedom
and equality of states was a step towards league of states to secure peace.
Kant was doubtful of the practical possibility of the state of nations and he
saw no possibility of international law without an international authority
superior to the states.
He was a German Idealist. He
based his theory on pure reason. He says man is a part of reality and is
subject to its laws (sovereign’s laws). Though, it is through will of the
people, the sovereign comes into existence, but still the man is not free. His
reason and inner consciousness makes him a free moral agent, so the ultimate
aim of the individual should be a life of free will and it is when free will is
exercised according to reason and uncontaminated by emotions, that free willing
individuals can live together.
People are morally free when they
are able to obey or disobey a moral law but since morality and freedom are
same, an individual can be forced to obey the law without forcing the freedom
provided by law in conformity with morality.
He talks about proclamation of
autonomy of reason and will. Human reason is law creating and constitutes moral
law. Freedom in law means freedom from arbitrary subjection to another.
Law is the complex totality of conditions in which maximum freedom is possible
for all.
The sole function of the state is
to ensure observance of the law. The individual should not allow himself to be
made a means to an end as he is an end in himself, if need be he should retire
from society if his free will would involve him in wrong doing.
Society unregulated by right
results in violence. Men have an obligation to enter into society and avoid
doing wrong to others. Such a society has to be regulated by compulsory laws.
Those laws are derived by pure reason of the idea of social union; men will be
able to live in peace.
What is needed is a rule of law
and not of man. Kant’s ideal of laws does not bear any relation to any actual
system of law; it is purely an ideal to serve as a standard of comparison and
not as a criterion for the validity of law. Kant considered political power as
conditioned by the need of rendering each man’s right effective while limiting
it at the same time through the legal rights of others. Only the collective
universal will armed with absolute power can give security to all. This
transfer of power is based on social contract which is not a historical fact
but it is an idea of reason. The Social Contract is so sacred that there is an
absolute duty to obey the existing legislative power. Rebellion is not
justified. Therefore, he considers a republican and representative state is an
ideal state. Only the united will of all can institute legislation and law is
just only when it is at least possible when the whole population should agree
to it. He was in favour of separation of power and was opposed to privileges of
birth and established church and autonomy of corporations. He was in favour of
free speech. The function of the state was essentially that of the protector
and guardian of that law.
George Wilhelm Frederich Hegel-
1770-1831-
Theoretical explanation of the universe- He developed a theory called ideal
dialectism. It is a way of investigating the truth of opinions by discussion
and logical argument. Later on, Karl Marx converted this into material
dialectism and political idea and statecraft. The basic tenets of Hegel
philosophy is neo-Kantian natural law. His system is a monistic one. The idea
unfolds from the simple to the complex by means of the dialectical process and
any face of reality is based on reason. The history of civilization does not
depend on unfolding of events but there is an objective spirit as standard
bearer of reason unfolding human civilization. What is reasonable is real and
what is real is reasonable. The moving spirit of civilization is the “idea”.
This idea is responsible for the movement of the civilization both in terms of
leadership thrown up in the movement of the civilization. All the social
systems are on a move from one stage to another.
The first stage of conceiving the
idea is thesis which is from the standpoint of the one’s observation, a given
concept of the civilization from that standpoint. However, by the time thesis
is conceived, the opposite of idea of thesis is hidden within the idea. The
principle or doctrine which is taken at the first starting point would be
thesis but these rules and principles have a counter point inbuilt in them
which when reduced to tangible categories may become ‘anti-thesis’ of them.
However, the antithesis of idea of the doctrines, rules would before becoming concrete
and metamorphosed would enter into synthesis, new phase and the synthesis would
again become thesis as the content and structure of these rules, principles and
doctrines. This is an endless circle and is true human history.
The history of civilization does
not depend upon unfolding of events but there is an objective spirit. The
nations are on a move to achieve this freedom. Once the nations achieve these
ideals, the young nations would strive to do the same. Law essentially is made
to understand the idea of freedom from its external manifestations. He used the
metaphor of natural law that man is free, passions, irrational desires and
material interest which have to be subordinated to his rational and spiritual
self. The mandate of natural is that man should lead a life governed by reason
and respect the reason of others.
Georgio Del Vecchio- He talked about Ideals of Law
as compared to positive law. Ideals of law should correspond to natural law is
higher law and provides criteria for evaluating positive law and to measure its
elements of justice. It is the basic principle which guides legal and human
evolution. The respect for human autonomy should be there.
His theory takes experience from
Kantian metaphor which is the basis of justice. Earlier conceptions of natural
law such as consent, liberty, representative democracy and conscience which
have to a great extent recognized in positive law will further impact the
evolution of positive law. The law faces a struggle and this struggle leads
again to evolution of law.
Though, he basis his thesis on
Kant but he differs in one aspect. The state is not only concerned with making
of law but also with enforcement of law and should concern with social,
political and economic well-being of social life of human beings.
The contribution of Vecchio in
reviving of natural law is that search of ideals for reforming positive law
lies in natural law as natural law is part of the human nature.
His work displays a profusion of
philosophical, historical and juristic learning. Law is not only formal but has
a special meaning and an implicit faculty of valuation. Law is a phenomenon of
nature and collected by history.
09. Analytical legal Positivism
The start of 19th century might be taken as
the mark of the beginning of the positivist movement. The term ‘positivism’
has many meanings, which were tabulated by Prof. Hart as follows:
(i) Laws are
commands;
(ii) The analysis of legal
concepts is – (a) worth pursuing; (b) distinct from sociological &
historical inquiries;
(iii) Decisions can be deduced
logically from predetermined rules without recourse to social aims, policy or
morality;
(iv) Moral judgments can’t be
established or defended by rationale, argument, evidence or proof; &
(v) The law as it is
actually laid down has to be kept separate from the law that ought to be.
Positivism flourishes in stable conditions. The
difficulties of maintaining a right separation between ‘law what is’ &
‘what ought to be’ come to light in turmoil.
JEREMY BENTHAM ( 1748 – 1832 ) laid down the foundation of
positivism in the modern sense of term. He was a ferment champion of
codified law & of reforming English law, which was, according to him, in
utter chaos. He distinguished between ‘expositional jurisprudence (what
the law is)’ & ‘censorial jurisprudence (what law ought to be) or the art
of legislation’. The main function of the former was ‘to evaluate law’,
while that of the later ‘to analyze law’. In seeking answers to the
questions {What is a penal code of laws? / What is a civil code? }, he had to
investigate the nature of law, which led him into a maze through which he
mapped out a path of laws in general. This was finished more or less in
1782, but remained unpublished till 1939 when Prof. Everett disinterred it
& published under the title ‘The Limits of Jurisprudence Defined’ in
1945. A revised edition was published as ‘Laws in General’ in 1970 under
the editorship of Prof. H.L.A. Hart.
Bentham gave the ‘Principle of Utility’, which says,
“Only those laws are important, which give maximum happiness to the maximum
number of people”. Those laws, which are not giving maximum pleasure
& giving maximum pain to the people ought to be removed. Pleasure
& pain are the basic ingredients of this principle. He also gave
“Hedonistic Calculus, which is the imaginary principle to judge pleasure &
pain of any law”.
JOHN AUSTIN ( 1790 – 1859 ), who was a Prof. in London University, is the founder of
the Analytical School. He is considered as the Father of English
Jurisprudence. He was elected to the chair of Jurisprudence in the
University of London in 1826. Then he proceeded to Germany & devoted
some time to the study of Roman Law. Austin, a disciple of Bentham, is a
positivist & concerned with ‘what law is’ & ‘not what law ought to be’.
‘Positus’ means ‘as it is’.
The first six (6) lectures were published in 1832 under
the title ‘The Province of Jurisprudence Determined’, while rest were published
posthumously in 1861. He avoided metaphysical method, which is a German
characteristic. The method, which Austin applied, is called analytical
method & he confined his field of study only to ‘positive law’.
Therefore, the school founded by him is called by various names – ‘Analytical’,
‘Positivism’, & ‘Analytical Positivism’. Prof. Allen thinks it proper
to call the Austin’s school as ‘Imperative School’ on the basis of is
conception of law, i.e., ‘Law is Command’.
For Austin, the matter of jurisprudence is ‘positive
law’; ‘law simply & strictly so called’ or ‘law set by political superiors
to political inferiors’. He believed that ‘Law’ is only an aggregate of
laws & defined ‘law’, “As a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him”. To
him, law is the command of a sovereign requiring his subjects to do or forbear
from doing something. There is an implied threat of ‘sanction’ if the
command is not obeyed.
LAW
|
Law properly so called
|
Law improperly so called
|
||
|
Law by God or Divine Law
|
Law by humans / Laws set by men for men
|
Law by analogy
|
Law by metaphor
|
|
Law by political superiors to political inferiors
|
Law by superiors to political inferiors, but the
superiors are not political superiors.
|
Law of fashion &
public opinion, i.e., international law, customs & traditions.
|
All the laws of nature, i.e., law
of motion, gravitation, etc.
|
|
This is called
|
Positive Law
|
Positive Morality
|
Natural Law
|
He distinguished between ‘laws properly so called’ &
‘laws improperly so called’. The former are general commands addressed to
the community at large & enjoined classes of acts & forbearance.
They are divided into laws set by God / divine law / law of God & laws set
by men to men. Laws set by men to men also fell into 2 categories – the
first consisted of laws set by political superiors to political inferiors.
This was termed by Austin ‘positive law’ or ‘law simply & strictly so
called’ & was, to him, the subject matter of jurisprudence. Thus, law
properly so-called must have 3 elements– (i) command, (ii) sanction & (iii)
sovereign. The second category consisted of laws set by men to men
neither as political superiors nor in pursuance of rights conferred upon them
by such superiors, e.g., those set by a master to a servant or the rules of a
club. They are still laws properly so called because they are commands,
but he distinguished them from positive law by giving them the term ‘positive
morality’.
Analogous to the laws of the latter class are a number of
rules to which the name ‘laws improperly so called’ is given. They are
opinions or sentiments of an undeterminate body of men & laws of fashion or
honour. He places intl. law under this class. In the same way,
there are certain other rules which are called law metaphorically – laws of
nature. They are laws improperly so called.
‘Positive law’ (law simply & strictly so called or
law set by political superiors to political inferiors) is the only proper
subject matter of jurisprudence. Jurisprudence is the general science of
positive law.
Laws properly so called are species of commands.
But being a command, it flows from a determinate source or emanates from a
determinate author. For whenever a command is expressed of intimated, one
party signifies a wish that another shall do or forbear & the latter is
obnoxious to an evil which the former intends to inflict in case the wish is
disregarded. The key to understanding law properly so called lies in duty
which is created by the command of a sovereign. Duty & sanction are
correlative terms – whenever duty lies, a command has been signified &
whenever a command is signified, a duty is imposed.
In a nutshell, by law, Austin means command, sanction
& duty (C+S+D), which are inextricably linked & can’t be
separated. According to him, there are 3 kinds of laws, which, though not
commands, are still within the province of jurisprudence:
(i) Declaratory of
Explanatory Laws : Austin does not regard them as commands because they are passed
only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws :
These too are not commands but are rather the revocation of a command.
They release from duties imposed by existing laws & are named permissive
laws.
(iii) Laws of Imperfect
Obligation : These laws have no sanction attached to them. Thus, there is
a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P.,
F.D.s, etc.
Criticisms of Austin’s Theory :
(i) Customs ignored :
For Austin, law is the command of sovereign. In the early times, not the
command of any superior, but customs regulated the conduct of the people.
Even after coming of State into existence, customs continued to regulate the
conduct. Therefore, customs should also be included in the study of
jurisprudence, but he ignored them. Customs have been in existence since
old times. Customs have also been an important source of law. As
per Austin, customs can only be a law if the sovereign accepts them as law,
while customs provide the basis on which the law can be based. Thus, even
if the sovereign does not recognise them as law, customs have always been an
important source of law & can’t be ignored.
(ii) Judge-made law : There
is no place for judge-made law. In the course of their duty (while applying
precedents & interpreting the law), judges make law. Though an
Austian would say that judges act under the powers delegated to them by the
sovereign, therefore, their acts are the commands of the sovereign.
However, in modern times, judges perform a creative function & Austin’s
definition of law does not include it.
(iii) Command theory untenable :
Command presupposes a commander. No indeterminate party can command,
expressly or tacitly or can receive obedience or submission. The question
is whether he can be discovered, who might be regarded as having commanded the
whole corpus of law. In democratic system, it is not possible that one
person commands.
(iv) Sanction is not the only
means to induce obedience : As per Austin, it is the sanction alone which
induces the man to obey law, while it is open to criticism from many points of
view as there are many other considerations such as reasoning, logic, love,
etc. due to which people obey.
(v) International Law :
Austin put Intl. Law under positive morality a/w the law of honour & law of
fashion. The so-called law of nations consists of opinions or
sentiments. It, therefore, is no law properly so called. The main
ingredient of law lacking in Intl. Law is sanction, but this alone will not
deprive from being called law. Now-a-days, Intl. Law is playing an
important role &, thus, it can’t be totally negated. Hence, nobody
will accept that Intl. Law is not law. Therefore, according to Austin, a
very imp. branch of law shall be excluded from the study of jurisprudence.
(vi) Relation of law & morals
overlooked : To Austin, law isn’t concerned with morals but this isn’t correct
proposition. Law is not an arbitrary command, but it is a growth of an
organic nature. Moreover, law has not grown as a result of blind forces,
but it has been developed consciously & has been directed towards a
definite ends. It isn’t completely devoid of ethical & moral
elements. Any law, which is devoid of ethics or morality, can’t withstand
the test of time. People don’t accept it whole-heartedly because of it
being unethical. Hence, morals have always been an integral part of
law.
(vii) Other Laws ignored : Austin does
not cover procedural laws, e.g., Civil Procedure Code, etc. He also does
not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity
Act, etc.
Applicability of Austin’s Theory In India :
(1) We don’t have a legally
unlimited or indivisible sovereign. Our constitution is supreme, though
it can be amended, but basic structure can’t be.
(2) Though there is separation
of powers, yet sometimes judiciary makes law (Art. 141 – Vishakha’s case &
D.K Basu’s case).
(3) Ordinance making power of
the Governor & the President (Art. 123 & 213);
(4) We have quasi-federal
system. Though the President has the supreme power, but the same is
exercised by the Prime Minister.
(5) DPSP are not positive law as
per Austin. Though DPSP are non-justiciable, yet they are important as
they govern the guidelines for the society. Thus, the principle of ‘is’
& ‘ought’ fails.
Comparison of Bentham & Austin :
(i) Bentham provided
a deeper & more adaptable theory. His concept of sovereignty was
flexible as it avoided indivisibility & illimitability. He was, thus,
able to accommodate the division of authority between organs as in a federation
or division in certain areas as well as restrictions of authority.
(ii) His concept of law was
broader than Austin’s. He avoided the absurdity of ‘law properly so
called’.
(iii) His sanction was both wider
& less important than Austin’s sanction. Laws are still laws even
though supported by moral or religious sanctions or they may even be
accompanied by rewards. He, thus, had no need to resort to a sanction by
nullity.
10. Historical School
SAVIGNY (1779–1861)
Savigny is regarded as the founder of the
Historical School. He emphasized that the muddled & outmoded nature
of a legal system was usually due to a failure to understand its history &
evolution. The core of his thesis is found in his essay ‘Vocation of our
times for Legislation & Jurisprudence’ 1814.
Historical School was a reaction against priori
notion of natural philosophy, i.e., unhistorical assumptions of the natural law
& rationalism (as the French Revolution instead of fulfilling the dreams of
the people disappointed them). According to Savigny, the source of law
was the general consciousness of the people and cannot be borrowed from outside.
He believed that law has a national character. A nation, to him, meant
only a community of people linked together by historical, geographical &
cultural ties. Law grows with the growth & strengthens with the
strength of the people & finally dies away as the nation loses its
nationality. He contended that it is the broad principles of the system
that r to be found in the spirit of the people & they manifest themselves
in customary rules. Law is a matter of unconscious & organic growth
(i.e., not made deliberately). Law is found & not made.
Further, law is not universal in nature. Like language, it varies with
people & age. Law is a product of the people’s life. Law has
its source in the general or common consciousness (Volksgeist) of the
people. Lawyers remain only the mouthpiece of popular consciousness &
their work is to shape the law accordingly. Any law-making should,
therefore, follow the course of historical development. Custom not only
precedes legislation, but it is superior to it. Law should always conform
to the popular consciousness, i.e., Volksgeist. Savigny opposed
the codification of law while pointing out the defects of contemporary codes;
codification could never cater exhaustively for all problems & it would
highlight the loopholes & weakness of the law. Codification, in
Savigny’s view, should be preceded by an organic, progressive, scientific study
of the law. Hence, he never opposed codification of German law for all
times to come.
Friedmann summarised the features of Savigny’s theory as follows :-
(i) Law is
discovered or found & can’t be artificially invented or made;
(ii) Law is fundamentally organic &
developmental in character which can be found both in primitive & modern
communities in varying forms of popular consciousness, beliefs, customs,
traditions, habits & practices which finally contribute to people’s law or
Volksgeist.
(iii) Law is sui generis. It is peculiar to a
people like its language so can’t be of universal validity.
Savigny’s revolutionary contribution is highly
appreciated by jurists all over the world. However, the only defect with
the theory was that it exaggerated that aspect. He ruined his theory by
its overemphasis. Another criticism is that he was so occupied with the
source of law that he almost forgot the stream.
Criticisms of Savigny’s Theory
(i) Volksgeist not the exclusive source of
law : There r many technical legal rules which never existed in nor has any
connection with popular consciousness.
(ii) Inconsistency in the theory : He
emphasised national character of law, but at the same time recommended a method
by which the Roman law could be adopted to modern conditions & advocated
for the acceptance of Roman law as the law of Germany. However, this
proposition fails to show how an alien system was better able to express it
than the indigenous law.
(iii) Customs not always based on popular consciousness:
Many customs originated only for the convenience of a powerful minority such as
slavery. Similarly, customs completely opposed to each other exist in
different parts of the same country (local customs).
(iv) Limitations of Volksgeist: In
modern times, function of Volksgeist is that of modifying & adapting rather
than creating. Today, it is of little or no relevance.
(v) Other factors: Savigny ignored other
factors that influence law such as he forgot the stream. He overlooked
the forces & factors which influence & determine the growth of law,
e.g., law relating to trade unions.
(vi) Juristic pessimism: His contention was
that legislation should conform to existing traditional law or it is doomed,
which view will not find favour today.
Applicability of Savingy’s Theory to India
:
(i) Federal Constitution: In a federal
Constitution (there is a division of powers between the federal/Central &
the State Govts. & both r independent in their own spheres), law lacks a
‘national’ character as envisaged by Savigny.
(ii) Source of Indian Constitution: The
framers of Indian Constitution incorporated various provisions of the
Constitutions of world in order to avoid defects & loopholes that might
come in future such as (i) Chapter on F.R.s – U.S.A.; (ii) Parliamentary System
of Govt. – U.K.; (iii) Directive Principles – Ireland; & (iv) Emergency
Provisions – Germany. Since it has many features borrowed from other
nations, it does not fit properly in the Savigny’s scheme.
(iii) Common law in India: The process
of reception of English law through the agency of the judiciary continued
unabated – law of torts, doctrine of cruelty, etc.
(iv) Deliberate legislation making: In
modern times, many new doctrines don’t always reflect the popular
consciousness, e.g., reservations for backward classes, uniform civil code,
etc.
(v) Judicial activism: Savigny ignored
the creative function of the judges. Judge-made law (precedents) or
judicial legislation is a common feature today.
Savigny’s method of the historical school was
followed in England by Sir Henry Maine, Lord Bryce & many others who made
studies of various legal systems on historical lines. Maine published his
first work ‘Ancient Law’ in 1861. This is considered to be the manifesto
of his lifework in which he stated his general doctrines. He also wrote
Village Communities (1871), Early History of Institutions (1875) &
Dissertations of Early Law and Custom (1883). He was law member in the
Council of the Governor–General of India between 1861 & 1869, which
provided him an opportunity for the study of Indian legal system.
Maine inaugurated both comparative &
anthropological approaches to the study of law. Unlike Savigny, Maine
favoured legislation & codification, he did not share Savigny’s mystique of
the Volksgeist & he used the study of legal history mostly to understand
the past & not to determine the future course & standards.
Maine classified the development of law in the
following stages :
(i) In the beginning, law was made by the
commands of the ruler believed to be acting under the divine inspiration, e.g.,
Themistes of ancient Greek. When a king decided a dispute by a sentence,
the judgment was assumed to be the result of direct inspiration. The king
was not the maker of law, but merely an executor of judgments of the God.
(ii) In the second stage, the commands
crystallise into customary law. Customs seem to have succeeded to the
prerogatives of the king. Hwr, they don’t appear to have pretended to
direct inspiration for each sentence & the progress of thought no longer
permits the solution of a particular dispute to be explained by supposing an
extra–human interposition.
(iii) In the third stage, the knowledge &
administration of customs goes into the hands of a minority, due to the
weakening of the power of the original law-makers, usually of a religious
nature, e.g. priests. The ruler is superseded by a minority who obtain
control over the law.
(iv) In the fourth stage, the law is promulgated in
the form of a code.
Static & Progressive Societies
The growth of law was on a uniform basis amongst
the primitive societies upto a certain stage of development. The
societies, which do not progress beyond the fourth stage & close the era of
spontaneous legal development, r static societies. The stationary/static
societies don’t move forward beyond the era of the codes.
The societies, which go on developing their law by
new methods, r called progressive societies. They develop their law with
the help of three instruments / methods, namely, legal fiction, equity &
legislation, in order to make law harmonious to social needs & change.
(i) By use of legal fictions, law is altered to
changing needs of the society, while it is pretended that it remains what it
was. Thus, legal fictions change the law according to the changing needs
of the society without making any change in the letter of law. He thought
fictions should be abandoned in a society because they made the law more
difficult to understand & harmonise legal order.
(ii) Equity is used to modify the law as a set
of principles invested with higher sacredness than those of original law.
Equity came to remove the rigidity in law & to remove injustice, delay
& other inconveniences. According to Maine, equity is a body of rules
existing by the side of the original civil law & founded on distinct
principles.
(iii) The final stage comes with the
legislation, which is the last effective instrumentality of quick social
reform. Law can be enacted by explicit declarations of intention
incorporated in the language of legal enactments. Maine regarded it as
the most desirable method of legal change.
In early societies–both ‘static’ &
‘progressive’, the legal condition of the individual is determined by status,
i.e., his claims, duties, etc. are determined by law. The march of
progressive societies witnessed the disintegration of status & the
determination of legal condition of the individual by free negotiation on his
part. The development of societies was summed up by Maine in the
following famous phrase, “If we employ status to signify the conditions only
& avoid applying the term to said conditions, we may say that the
movement of the progressive societies has hitherto been a movement from status
to contract”.
From a condition of society, in which all the
relations of persons were summed up in the relation of family, we seemed to
have steadily moved towards a phase of social order in which all these
relations arose from free agreement of individuals.
According to Maine, status is a fixed condition in
which an individual finds himself without reference to his will and of which he
can’t divest himself by his own efforts. The group, not the individual,
is the primary unit of social life. With the progress of civilization,
this condition gradually gives way to a social system based on contract.
This is the age of the standardized contract & of collective bargaining
(trade unions, business associations, etc.). Even the contracts, which an
individual enters into in everyday life, have been standardized as contract for
water, electricity or contract for a carriage with a railway company. The
freedom of contract is, thus, being curtailed every day.
Thus, Maine’s theory of ‘Status to Contract’ does
not have much force in the modern age. In India, the policy of ‘mixed
economy’ has assumed greater control over individual liberty & freedom.
The State can impose reasonable restrictions in the interest of the
public {Art. 19(6)}. Pollock says that this theory is limited only to
laws of property because personal relations like marriage, minor’s capacity,
etc. are still matters of status & not of contract.
However, in one sense, Maine’s theory still holds
good. The trend of legislation in undeveloped or developing countries is
to remove personal disabilities, which arise due to membership of a class
(status).
On the whole, Maine presented a balanced view of
history of law. Savigny had explained the relation between community
& law, but Maine went further & pointed out the link between the
developments of both. His conclusions are based on comparative study of
different systems & hence their value is greater than other studies based
on Roman Law exclusively. Influenced Friedmann, Dicey, etc.
In the words of Dr. Friedmann: It can be concluded
that the contribution of Maine is an important piece of comparative legal
research to a legal theory inspired by principles of historical
evolution. His great contribution to legal theory specially lies in the
combination of what is best in the theories of both Montesquieu &
Savigny. Maine’s theory avoids the danger of an excessive disintegration
of theoretical laws of legal evolution. It is also free from the abstract
& unreal romanticism, unlike Savigny’s theory.
Difference between Historical & Analytical Schools
|
S.No.
|
Analytical School
|
Historical School
|
|
1.
|
Law is the command of the sovereign
(created by sovereign).
|
Law is found & not made.
|
|
2.
|
Law is enforced by the sovereign.
|
Law is independent of political authority &
its enforcement.
|
|
3.
|
Example of typical law is statute.
Custom isn’t law, until its validity has been established by a judicial
decision/by an Act of legislature.
|
Example of typical law is custom.
Custom is law by itself. It does not require State recognition to
become a law.
|
|
4.
|
Force of politically organized society is
the basis of law.
|
Law rests on the social pressure.
|
|
5.
|
Judges find themselves to interpretation of
statute.
|
Judges to consider only history of
legislation.
|
|
6.
|
Applicable to developed countries – matured
legal systems.
|
Applicable to developing countries –
primitive legal institutions of society.
|
Historical Jurisprudence
Positivists and naturalists tend to converge in the area
of historical jurisprudence. Historical jurisprudence is marked by judges who
consider history, tradition, and custom when deciding a legal dispute. Strictly
speaking, history does not completely fall within the definition of either
positivism or natural law. Historical events, like the Civil War, are not
legislative enactments, although they may be the product of governmental
policy. Nor do historical events embody eternal principles of morality,
although they may be the product of clashing moral views. Yet, historical
events shape both morality and law. Thus, many positivists and naturalists find
a place for historical jurisprudence in their legal philosophy.
For example, Justice Holmes was considered a positivist
to the extent that he believed that courts should defer to legislative judgment
unless a particular statute clearly violates an express provision of the
Constitution. But he qualified this stance when a given statute
"infringe[s] on fundamental principles as they have been understood by the
traditions of our people and our law" (lochner
v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such
instances, Holmes felt, courts were justified in striking down a particular
written law.
benjamin n. cardozo, considered an adherent of sociological jurisprudence by
some and a realist by others, was another Supreme Court justice who
incorporated history into his legal philosophy. When evaluating the merits of a
claim brought under the due process
Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims
that were not "implicit in the concept of ordered liberty" and the
"principle[s] of justice [that are] so rooted in the traditions and
conscience of our people as to be ranked as fundamental" (Palko v.
Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).
Contemporary Thought
Each school of jurisprudence is not a self-contained body
of thought. The lines separating positivism from realism and natural law from
formalism often become blurry. The legal philosophy of Justice Holmes, for
example, borrowed from the realist, positivist, pragmatic, and historical
strains of thought.
In this regard, some scholars have observed that it is
more appropriate to think of jurisprudence as a spectrum of legal thought,
where the nuances of one thinker delicately blend with those of the next. For
example, Harold Berman, a leading authority on comparative Legal
History, has advocated the
development of an integrative jurisprudence, which would assimilate into one
philosophy the insights from each school of legal theory. The staying power of
any body of legal thought, Berman has suggested, lies not in its name but in
its ability to explain the enterprise of law.
11. Sociological School
Jurists belonging to the sociological school of thought r
concerned more with the working of law rather than its abstract content.
Their principal premise is that the law must be studied in action & not in
textbooks. They r concerned with the study of law in relation to society.
They concentrate on actual social circumstances which give rise to legal
institutions. They insist that the legal order is a phase of social
control & that it can’t be understood unless taken in its whole setting
among social phenomena.
The factors responsible for the emergence of this school
are:
(i) Mental bankruptcy of analytical approach to
meet the social demands of modern society;
(ii) Conflicts between individual interests &
social interests & the need to reconcile them;
(iii) Inter-connection between law and society.
(iv) Works of the earliest pioneers of the new interests
in society, i.e., Bentham, Renner, Weber, etc.
The following are the main characteristics of this
school:
(i) Sociological Jurists r concerned more with the
working of the law of the legal order & legal precepts rather than its
nature.
(ii) According to Analytical jurists, law is made
consciously; Historical jurists, it is something found; but the Sociological
jurists regard law as social institution.
(iii) Sociological jurists lay stress upon the
social purposes / securing social interests rather than on sanction.
(iv) Sociological jurists look on legal institutions,
legal doctrines & legal precepts functionally ... this is the
functional view of law.
The objective of sociological source of jurisprudence is
to resolve immediate problems of society with such tools – legal or extra legal
and techniques which promote harmony & balance of interest of society.
RUDOLF VON IHERING ( 1818 – 1892 )
Ihering was German jurist. He has been described as
the “Father of Modern Sociological Jurisprudence”. He rejected the Analytical
& Historical jurisprudence as jurisprudence of conceptions. According
to him, law is an instrument for serving the needs of individuals of society.
Hence, the law should be studied in terms of purposes or interests which it
sub-serves. He observed, “The stone does not fall in order to fall, but
it must fall because its support is taken away. Similarly, the man who
acts does so not because of anything, but in order to attain something.
As there can be no motion of the stone without a cause, so can there be no
movement of the will without purpose.”
According to him, human will is directed towards the
furtherance of individual purposes. In realisation of individual
purposes, there is bound to be a conflict between social interests &
individual’s selfish interests. Ihering tries to reconcile the individual
interest with that of the society. So, law is only an instrument for
serving the needs of the society ... its purposes & interests. The
success of the legal process depends on achieving proper balance between social
& individual interests. It is through two impulses – coercion &
reward, the society compels individuals to subordinate selfish individual
interests to social purposes & general interests. The natural impulse
of duty & love also make man to sub-serve social ends. Therefore,
Ihering views law as an instrument of social control balancing of individual
interest with that of the society.
ROSCOE POUND ( 1870 – 1964 )
Dean Roscoe Pound (ROSCOE POUND) has been acknowledged as
the unchallenged chief of the sociological school of jurisprudence.
Sociological jurisprudence arose as a reaction to positivism (19th
century positivist jurisprudence) since it refused to consider social &
economic circumstances. Its main contribution was broadening the scope of
jurisprudence. Law is not an isolated phenomenon, but is a part of social
reality. ROSCOE POUND, one of the leading American jurists & pioneer
in the American jurisprudence, can be said to be the father of sociological
jurisprudence in America. According to ROSCOE POUND, law takes account of
social facts / reality.
ROSCOE POUND asserts that law is a method or technique
for harmonizing conflicting social interests. His school is known as
functional school as it concentrates more on the functional aspect of
law. In modern society, there r various interests & if claims
of these groups r not harmonized, there may be strife & thereby production
may suffer. By social engineering, Roscoe Pound means a balance between
the competing interests in society. In other words, social engineering is
a term used to define the act of balancing of different interests, i.e.,
individual interests, public interests & social interests. The aim of
social engineering is to build as efficient a structure of society as possible,
e.g., if a factory is polluting the environment & an injunction suit is
filed for closing it, the court must balance various claims & interests
–claim of the mill owner to do his business, claims of the workers in the
factory to retain their jobs, claim of local residents to have a clean
environment, etc. Roscoe Pound says law exists for the benefit of the
society. Any law, which is against the interest of the society, can’t be
said to be a law.
Despite the broadness of his views, he gave preference to
the practical means in the study of law, which are as under:
(i) to make a study of the actual social effects of legal
institutions & legal doctrine/to look more to the working of law than to
its abstract content;
(ii) to regard law as a social institution which may be
improved by intelligent efforts discovering the best means of furthering &
directing such effort.
(iii) to lay stress upon the social purposes which law
sub-serves rather than upon sanction.
(iv) to study what social effect the doctrines of law
have produced in past.
(v) to stand for equitable application of law.
(vi) to make effort more effective in achieving the
purposes of law.
ROSCOE POUND’s theory is that the interests are the main
subject-matter of law & the task of law is the satisfaction of human wants
& desires. It is the duty of law to make a valuation of
interests. He classified interests under three heads –
(i) Individual;
(ii) Public;
&
(iii) Social
(i) Individual Interests – These are claims or
demands or desires involved in & looked at from the standpoint of the
individual life such as (i) Personality e.g. freedom of will, privacy, belief
& opinion as also honour & reputation; (ii) Domestic relations e.g.
relations of husband & wife, parents & children; & (iii) Interests
of substance e.g. proprietary rights, inheritance & testamentary
succession, contract, continuity of employment, freedom of association.
(ii) Public Interests – These are claims or demands
or desires asserted by individuals involved in & looked at from the
standpoint of political life such as (i) Interests of the State as a juristic
person e.g. (a) integrity, freedom of action & honour of the State
personality; & (b) claims of the politically organized society as a
corporation to property acquired & held for corporate purposes; (ii)
Interests of the State as guardian of social interests – this seems to overlap with
the next category, i.e., Social Interests.
(iii) Social Interests – These are claims or demands or
desires thought of in terms of social life & generalized as claims of the
social group. They concern: (i) Interest in the preservation of peace,
public health & order and maintaining general security; (ii) Interest in
preserving social institutions like marriage, domestic & religious
institutions; (iii) Interest in preserving general morals by counteracting
corruption, drunkenness, prostitution, gambling, etc.; (iv) Interest in
conserving social resources; (v) Interest in general progress (economic,
political & cultural) which is to be achieved by freedoms of education,
speech, trade, property, etc.; & (vi) Social interest in individual life
like promotion of human personality, self-assertion, etc. – each individual to
be able to live a human life according to the standards of the society.
Every society has certain basic assumptions upon which
its ordering rests. These assumptions are the Jural Postulates of
the legal system as embodying the fundamental purpose:
I In civilized society, men must be able to assume that
others will commit no intentional aggressions upon them.
II In civilized society, men must be able to assume
that they may control for beneficial purposes what they have discovered &
appropriated to their own use, what they have created by their own labour or
what they have acquired under the existing social & economic order.
III In civilized
society, men must be able to assume that those with whom they deal in general
intercourse of society (others) will act in good faith.
IV In civilized society, men must be able to assume that
those who engage in some course of conduct will act with due care not to cast
an unreasonable risk of injury upon others.
V In civilized society, men must be able to assume that
others, who maintain things or employ agencies, harmless in the sphere of their
use but harmful (things) in their normal action elsewhere, will restrain them
or keep them within their proper bounds.
ROSCOE POUND insists, interests should be weighed on the
same plane as it were. One can’t balance an individual interest against a
social interest. Freedom of the person might be regarded as an individual
interest, but it is transferable as an interest of the society that its members
should be free. However, in order to harmonize conflicting interests in
modern dynamic society, judge will often have to dispense justice without law,
i.e., without following any prescribed rule or precedent.
The task of law is ‘social engineering’, i.e., the
balancing of competing interests in society. He coined the expression
‘social engineering’ to represent the true attitude to law & its
function. To build a society, jurists, lawyers & judges must use law
as an engineer does his material sparingly, but produce the best results.
Thus, the law is an attempt to reconcile, to harmonize, to compromise, these
overlapping & conflicting interests. His philosophy is essentially
one of practical compromise. Roscoe Pound believes that interests are the
chief subject of law & that the task of law in society is the satisfaction
of human wants & desires.
Critical Analysis of ROSCOE POUND’s Theory : ROSCOE POUND’s theory mainly emphasis functional aspects
of law & ignores nature & character of law.
(1) Lack of criteria of evaluation – It is not
interests as such, but the yardstick with reference to which they r measured
that matter.
(2) Interests pre-exist laws – It isn’t true as
there r certain social legislations in which the interests r created by the law
& others.
(3) Misleading balancing metaphor – If two
interests r to be balanced, that presupposes some ‘scale’ or ‘yardstick’ with
reference to which they r measured. The ‘weight’ to be attached to an
interest will vary according to the ideal that is used.
(4) From legislation to court judgments – Roscoe
Pound emphasised ‘judicial activism’. His theory shifts the centre of
gravity from legislation to court judgments. A list of interests can’t be
drawn in advance as new interests r created & recognised by the
courts. The judiciary has limitations & doesn’t have the machinery of
enforcing its decisions. It can’t do what legislature can do.
(5) Theory lacks general application (Applicability to
India) – There r certain competing interests which can never be balanced or
reconciled, e.g., interests of labour & capital and landlord & tenant.
(6) Utility of list of interests – A society
constantly develops & changes and the pressures behind interests change
too. What is an individual interest & what is a social interest is
itself a matter of changing political conceptions. The value or
importance to be allotted to each interest can’t be predetermined & the
recognition of a new interest is a matter of policy.
Despite the aforesaid criticisms, the significance of ROSCOE
POUND’s sociological jurisprudence is of world import as it strikes a fine
synthesis between liberty & equality and between freedom & social
control through the instrumentality of law. He is no enemy of abstract
philosophy, but he is impressed by certain limits of legal philosophy.
Roscoe Pound asserts, “I don’t believe that the jurist has to do more than
recognize the problem & perceive that it is presented to him as one of
securing a balance or harmony among them”.
For ROSCOE POUND, law is a product of class
conflict. Law is not autonomous, but a product of policy. Laws
reflect the ideology of a ruling class. Laws will only be
effective. His theory is relevant only for an ideal society. A
conflict model & not a consensus model will create interests. Unless
a conflict situation is created, interests can’t be created. Law is a
social force.
In short, the important & remarkable feature of this
school is that the jurists are concerned with the study of law in relation to
society. The principal area is that law should be studied in action &
not in textbooks. The inter-connection between law & society should
be that of such a nature, which can fulfil maximum interest of community.
It should not be an instrument of coercion as a means to sub-serve the ends of
the society. In essence, the sociological jurists look at law
functionally.
12. Realist Movement
Oliver Wendell Holmes was a self-styled legal realist. Legal realism was a view popular with
some Scandinavian and American writers. Skeptical in tone, it held that the law
should be understood and determined by the actual practices of courts, law
offices, and police stations, rather than as the rules and doctrines set forth
in statutes or learned treatises. It had some affinities with the sociology of
law. The essential tenet of legal realism is that all law is made by human
beings and, thus, is subject to human foibles, frailties and imperfections.
It has become
quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main
precursor of American Legal Realism (other influences include Roscoe Pound,
Karl Llewellyn and Justice Benjamin Cardozo). Karl Llewellyn, another
founder of the U.S. legal realism movement, similarly believed that the 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 chief inspiration for Scandinavian
legal realism many consider to be the works of Axel Hägerström. Despite its decline in popularity,
realism continues to influence a wide spectrum of jurisprudential schools
today, including critical legal studies, feminist legal
theory, critical race theory, sociology of law
and law and economics.
13. Economic interpretation of law
01. Positive law and economics
'Positive law
and economics' uses economic analysis to predict the effects of various legal
rules. So, for example, a positive economic analysis of tort law
would predict the effects of a strict liability
rule as opposed to the effects of a negligence
rule. Positive law and economics has also at times purported to explain the
development of legal rules, for example the common law
of torts, in terms of their economic efficiency.
02. Normative law and economics
Normative law
and economics goes one step further and makes policy recommendations based on
the economic consequences of various policies. The key concept for normative
economic analysis is efficiency, in particular, allocative
efficiency.
A common
concept of efficiency used by law and economics scholars is Pareto efficiency.
A legal rule is Pareto efficient if it could not be changed so as to make one
person better off without making another person worse off. A weaker conception
of efficiency is Kaldor-Hicks
efficiency. A legal
rule is Kaldor-Hicks efficient if it could be made Pareto efficient by some
parties compensating others as to offset their loss.
03. Important scholars
Important figures
include the Nobel Prize–winning economists Ronald Coase and Gary Becker, U.S. Court of
Appeals for the Seventh Circuit judges Frank Easterbrook and Richard Posner, Andrei Shleifer and other
distinguished scholars such as Robert Cooter, Henry Manne, William Landes, and A. Mitchell Polinsky. Guido Calabresi, judge for the U.S. Court of
Appeals for the Second Circuit, wrote in depth on this subject; his book The Costs of Accidents: A Legal and Economic Analysis (1970) has been cited as influential in its
extensive treatment of the proper incentives and compensation required in
accident situations.[7] Calabresi took a
different approach in Ideals, Beliefs, Attitudes, and the Law (1985), where he
argued, "who is the cheapest avoider of a cost, depends on the valuations
put on acts, activities and beliefs by the whole of our law and not on some
objective or scientific notion".
14. Critical Legal Studies (CLS)
Critical
legal studies is a
movement in legal theory and a network of leftist legal scholars that emerged in the
1970s in the United States. Considered "the first movement in legal theory
and legal scholarship in the United States to have espoused a committed Left
political stance and perspective", critical legal studies was committed to
shaping society based on a vision of human personality devoid of the hidden
interests and class domination that CLS scholars argued are at the root of liberal
legal institutions in the West. According to CLS scholars Duncan Kennedy and Karl Klare, critical legal
studies was "concerned with the relationship of legal scholarship and
practice to the struggle to create a more humane, egalitarian, and democratic
society." During its period of peak influence, the critical legal studies
movement caused considerable controversy within the legal academy. Members such
as Roberto Mangabeira
Unger have sought to
rebuild these institutions as an expression of human coexistence and not just a
provisional truce in a brutal struggle and were seen as the most powerful
voices and the only way forward for the movement. Unger and other members of
the movement continue to try to develop it in new directions, e.g., to make
legal analysis the basis of developing institutional alternatives.
The
abbreviations "CLS" and "Crit" are sometimes
used to refer to the movement and its adherents.[
Although the
CLS (like most schools and movements) has not produced a single, monolithic
body of thought, several common themes can be generally traced in its
adherents' works. These include:
·
A first theme is
that contrary to the common perception, legal materials (such as statutes and case law) do not
completely determine the outcome of legal disputes, or, to put it differently,
the law may well impose many significant constraints on the adjudicators in the
form of substantive rules, but, in the final analysis, this may often not be
enough to bind them to come to a particular decision in a given particular
case. Quite predictably, once made, this claim has triggered many lively
debates among jurists and legal philosophers, some of which continue to this
day (see further indeterminacy
debate in legal theory).
·
Secondly, there
is the idea that all "law is politics". This means that legal
decisions are a form of political decision, but not that it is impossible to
tell judicial and legislative acts apart. Rather, CLS have argued that while
the form may differ, both are based around the construction and maintenance of
a form of social space. The argument takes aim at the positivist idea that law
and politics can be entirely separated from one another. A more nuanced view
has emerged more recently. This rejects the reductivism of 'all law is
politics' and instead asserts that the two disciplines are mutually
intertwined. There is no 'pure' law or politics, but rather the two forms work
together and constantly shift between the two linguistic registers.
·
A third strand of
the traditional CLS school is that far more often than is usually suspected the
law tends to serve the interests of the wealthy and the powerful by protecting
them against the demands of the poor and the subaltern (women, ethnic minorities, the working class,
indigenous peoples, the disabled, homosexuals, etc.) for greater justice. This
claim is often coupled with the legal realist argument that what the law says
it does and what it actually tends to do are two different things. Many laws
claim to have the aim of protecting the interests of the poor and the
subaltern. In reality, they often serve the interests of the power elites.
This, however, does not have to be the case, claim the CLS scholars. There is
nothing intrinsic to the idea of law that should make it into a vehicle of
social injustice. It is just that the scale of the reform that needs to be
undertaken to realize this objective is significantly greater than the
mainstream legal discourse is ready to acknowledge.
·
Furthermore, CLS
at times claims that legal materials are inherently contradictory, i.e. the
structure of the positive legal order is based on a series of binary
oppositions such as, for instance, the opposition between individualism and
altruism or formal realizability (i.e. preference for strict rules) and
equitable flexibility (i.e. preference for broad standards).
·
Finally, CLS
questions law's central assumptions, one of which is the Kantian notion of the
autonomous individual. The law often treats individual petitioners as having
full agency vis-à-vis their opponents. They are able to make decisions based on
reason that is detached from political, social, or economic constraints. CLS
holds that individuals are tied to their communities, socio-economic class,
gender, race, and other conditions of life such that they cease to be
autonomous actors in the Kantian mode. Rather, their circumstances determine
and therefore limit the choices presented to them. People are not
"free"; they are instead determined in large part by social and
political structures that surround them.
15. Feminist Jurisprudence
Feminist
jurisprudence is a philosophy of law based on the political, economic, and
social equality of sexes. As a field of legal scholarship, feminist
jurisprudence began in 1960s. It now holds a significant place in U.S. law and
legal thought and influences many debates on sexual and domestic violence,
inequality in the workplace, and gender based discrimination. Through various
approaches, feminists have identified gendered components and gendered
implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic
violence, and sexual harassment have all benefited from the analysis and
insight of feminist jurisprudence.
Feminists
believe that history was written from a male point of view and does not reflect
women's role in making history and structuring society. Male-written history
has created a bias in the concepts of human nature, gender potential, and
social arrangements. The language, logic, and structure of the law are
male-created and reinforce male values. By presenting male characteristics as a
"norm" and female characteristics as deviation from the
"norm" the prevailing conceptions of law reinforce and perpetuate
patriarchal power. Feminists challenge the belief that the biological make-up
of men and women is so different that certain behavior can be attributed on the
basis of sex. Gender, feminists say, is created socially, not biologically. Sex
determines such matters as physical appearance and reproductive capacity, but
not psychological, moral, or social traits.
Though
feminists share common commitments to equality between men and women, feminist
jurisprudence is not uniform. There are three major schools of thought within
feminist jurisprudence. Traditional, or liberal, feminism asserts that women
are just as rational as men and therefore should have equal opportunity to make
their own choices. Liberal feminists challenge the assumption of male authority
and seek to erase gender based distinctions recognized by law thus enabling
women to compete in the marketplace.
Another school
of feminist legal thought, cultural feminists, focuses on the differences
between men and women and celebrates those differences. Following the research
of psychologist Carol Gilligan, this group of thinkers asserts that women
emphasize the importance of relationships, contexts, and reconciliation of
conflicting interpersonal positions, whereas men emphasize abstract principles
of rights and logic. The goal of this school is to give equal recognition to
women's moral voice of caring and communal values.
Like the
liberal feminist school of thought, radical or dominant feminism focuses on
inequality. It asserts that men, as a class, have dominated women as a class,
creating gender inequality. For radical feminists gender is a question of
power. Radical feminists urge us to abandon traditional approaches that take
maleness as their reference point. They argue that sexual equality must be
constructed on the basis of woman's difference from man and not be a mere
accommodation of that difference.
16. Indian Jurisprudence
While ancient Indian jurisprudence can be said to belong
to the historical school of jurisprudence, modern jurisprudence is a
combination of positivism, sociological jurisprudence and natural law.
Nature of Indian jurisprudence.
The jurisprudence as dealt with in the Smrti appears “complete and
exhaustive, and includes all branches of law”. The law constitutes a code of
duties which gave precedence to duties rather than rights. The Smrti literature
is called Dharma Sastras. The works of the first period is called Dharma Sastras
and is composed in short, cryptic sentences compressing a lot of substances
which anables easy memorisation. A few verses that deal with economics,
politics, administration, civil and criminal laws, have been interpreted into
prose. The writers are Gouthama, Boudhāyana, Āpasthambha and Vaśista.
Authors attributed their works to ancient sages and rarely mentioned the events
of their own lives. Manu, Yājnavalkya, Parāśara, Nārada, Brhaspati and
Kātyāyana were famous authorities.
17. The Concept of Dharma
Ancient Indian Concept of Dharma - Dharma as
Justice :
Materialistic western Jurisprudence which is the
byproduct of exploration of matter, commercialization of life and its values,
promotion of prospects of material comforts, turning towards territorial aggrandizement,
germinating warring ideologies, nurturing or nurtured by disharmonies of social
and individual existence cannot think of spiritual concept like that of dharma
to solve the problems of Law and life. With less faith in religion and inward inquiry
to know the ultimate truth of life, the western mind saw conflict, strife and
struggle as the essential nature of life[1]. To
reconcile conflicts and to balance opposing interests without any reference to
religion or God whose authority began to be challenged, the West sought after
the secular doctrine of Justice which had a fighting and overcoming
potentiality with enough militancy. The utilization of balancing and measuring
virtue of justice to decide the conflicting claims of society, State and individual
interse, was resorted to but it proved in vain. So now it seems that the
western mind is looking to some other ideological expedients in the name of
justice to get solutions and reliefs from the multifarious contemporary
problems and prevailing maladies of modern life. To the ancient Indian mind,
the concept of Dharma implied the concept of justice to cope with all the
exigencies of life. Dharma was not merely the code of human conduct and
regulation of life in detail, it was the Reality itself as the counterpart of
Brahman which was its metaphysical expression. The ultimate reality reflected
by both Dharma and Brahman was described as ‘Sachidanand’, which constituted of
‘Sat’ as universal existence ‘Chit’ as universal consciousness and eternal
Annand as Bliss. Existence leads to knowledge rightness, reason and truth,
consciousness leads to will, power, action etc. and Annand leads to
satisfaction, happiness, peace, welfare etc. From this point of view Dharma is
justice because it is the expression of Right, Truth, Existence etc., which
also implies knowledge and virtue. Dharma as consciousness implies will,
desire, power and action for reformation and regulation of life. Dharma as
bliss implies real satisfaction- material as well as spiritual. The latter is
more enduring and is related to soul as the former is related to body as
sensual pleasure. Dharma as right or Justice prevails over wrong or adharma or
injustice.
(a) ‘Sat’ as Justice or Dharma as Right, Truth and
Existence : The reality as existence is not mere physical
existence but is total existence of which human existence is only a little
part. The ultimate truth of this existence which is to be known and realized.
Dharma as Justice is the knowledge of Existence as all knowledge leads to truth.
Existence, truth and knowledge are correlative as well as synonymous. Dharma as
justice is right observance of truth in conduct of life i.e. in thought, word
and deed. It then becomes a norm of good and virtuous life. Justice has thus to
satisfy the standard of truth in every way. In ancient India legal trial was
called ‘Vyavhar.’ As a variation of Dharma it was considered as an inquiry into
truth. Law as Dharma was to be just and also needed right or true
interpretation of the prescriptions of Law. Dharma as Justice is then
observance of truth in thought, word and deed. Truth is said to be always
victorious, and is always convincing and thus satisfying to all. Truth rejects
formalism, superstition, dogmatism and recommends change and reform for
progressive realization of the goals of life by rising above false distinctions
of caste, creed and color etc. The so called injustices in human life can be
seen as mere ‘untruths’, ‘sham’s and falsities of life. Mahatma Gandhi equated
truth with God and formulated the theory of ‘Satyagarh’ or ‘holding to truth’
as a method of willful disobedience to unjust law which amounts to violation of
truth as reflected is human soul or man’s conscience. Justice is then ‘truth is
action,’ Vivek or reason is also a method of knowing, or ascertaining the truth
of the matter i.e. to determine truth rightly. As truth is dynamic, reason
determines truth or justice again and again with its new forms and
modifications with reference to utility, mercy, public good in order to make it
living and more workable. Reason as truth derecognizes obsolete customs, wrong
practices, old methods of working like trials by ordeals, oaths, stakes and
other irrational procedures, appeals, executions etc. Rational inquiry and
investigation has brought about the modernization of administration of Justice
and reform of Law. Again, rational inquiry emphasizes the need of impartiality
which is an essential quality of justice, as deemed necessary to establish the
rule of law. This makes law the ruler of rulers as declared by our Upanishads.
Dharma or Justice without equality and mercy cannot appeal to the heart or soul
of man which requires Dharma or Justice true or adaptable to the circumstances
of the case. Again, Justice as enforcement of truth impartially cannot be done
without realization of one’s own obligation to right performance of one’s
duties properly. Therefore right performance of one’s duties guarantees justice
or Dharma according to ‘Gita’. Dharma or Justice, then resides in, truth,
reason, impartiality and in performance of one’s duties which has reference to
total good of human existence on this earth.
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