UNIVERSITY OF ALLAHABAD

Jurisprudence
LLB THIRD SEMESTER
mridul
2024-2025
 Jurisprudence
Unit:-1st
Ques1:- Definition, Meaning, Utility and Scope of Jurisprudence.
Ans1:- Introduction

Jurisprudence helps a person to understand the deeper meaning of the law. Jurisprudence is an
integral part of the law which is based on theories and various analysis. Jurisprudence talks about
the relationship of law with other social sciences, society, man and nature.

Meaning

Jurisprudence means the study of law in a logical and philosophical manner. The word
Jurisprudence has been originated from the Latin word Juris prudentia which can be broken
down into two parts, and that is juris which originated from the word jus which means law and the
word prudential which means prudence, forethought or discretion.

Jurisprudence can also be referred to as a legal theory. Jurisprudence gives us an overview and a
much more in-depth understanding of the law and the role of law in society. Jurisprudence deals
with legal reasoning, legal institutions and legal systems.

Importance of the study of Jurisprudence

One of the major importance of the study of Jurisprudence is its fundamental value. Jurisprudence
mainly comprises of research and the method to construct and clarify the basic concepts of law.
Jurisprudence is not concerned with the making of the new laws; rather, it focuses on existing laws
in the system and Jurisprudence, and its theories can help lawyers to form a better and much more
improved practice.

Jurisprudence can also help students. It has its own scholastic worth in the life of students.
Jurisprudence not only focuses on primary legal rules, but it also talks about the social impact of
those laws. Jurisprudence combines logical and theoretical analysis of legal concepts. So it
proliferates the analytical methods and techniques of a student.

Jurisprudence also focuses on law and its social value. It talks about fairness and the articulation of
law. Jurisprudence deals with the basic fundamentals of the law and it is the eye of law. It helps a
person to understand the thoughts and divisions of law.

Jurisprudence is also the grammar of law. It helps a person to understand the language and the
grammar of law. Legal language and grammar are very different when compared to ordinary
language, so Jurisprudence trains the mind of a lawyer so that he can use proper legal vocabularies
and expressions.

Jurisprudence provides the rules of interpretation and as a result, it helps judges and lawyers in
understanding the importance of laws passed by the legislators.

Jurisprudence and its relationship with other social sciences provide a broad spectrum to students
in understanding how law can be related and connected with other disciplines.

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Jurisprudence teaches people that an answer to a legal problem is not hidden in the past or
awaiting in the future rather than the answer to a legal problem is hidden around them in the
fundamentals of legal studies.

Jurisprudence also talks about political rights and legal rights and how the system can strive to
balance them out. A student can also look into it with the help of Jurisprudence.

What is Jurisprudence

Jurisprudence is ‘the Eyes of Law.’ In the human body, the eyes are one of its most essential
parts. Most of the human activities and movements of a man’s body are possible only through them.
Unless a man can see anything correctly, he can’t do any work properly. Jurisprudence is called the
‘the eye of law’ because jurisprudence functions for law like eyes do for the human body.

For example: It is a difficult task to interpret the law. Students and even lawyers sometimes fail to
reach to the intention of the legislature while interpreting the law. This is where jurisprudence
assists them and makes decoding the law easy.

Function of Jurisprudence

The core function of jurisprudence is to study the origin of law; From where a particular law has
developed and traces back its origin as to how that law has contributed towards society. The
matters related to birth, marriages, death, succession, etc., are equally controlled through laws. As
a result, jurisprudence has a lot of applications in civil life.

Nature of Jurisprudence

Jurisprudence, in its nature, is a different subject. It is neither a procedural subject nor a

substantive subject. It is the mainstream of whole law, from where the different laws originate.
It is not a codified law like the Indian Penal Code, Criminal Procedure Code, or the Constitution.
Jurisprudence being an ever-growing and dynamic subject has no limitation on itself.

Is Jurisprudence Art or Science

Many authors and jurists came in the timeline, and everyone gave different opinions or views
regarding the nature of jurisprudence. It is called both art and science. But to call it or prove it
to be science is more appropriate. The reason for this is that, in science, we draw conclusions after
doing a systematic and logical study by applying new methods and techniques.
Similarly, jurisprudence is concerned with the fundamental principles of law, and thus
calling it science is a bit more suitable.

Scope of Jurisprudence

According to Justice P.B Mukherjee, “Jurisprudence is both an intellectual and idealistic abstraction
as well as a behavioural study of man in society. It includes political, social, economic, and cultural
ideas. It covers the study of man concerning to state and society.”

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Every jurist or thinker does not construct his research study on the rules already made but tries to
understand their utility after due consideration. This is the reason jurisprudence has no limited
scope and is a developing subject.

Utility and Importance of Jurisprudence

Many times it is said that jurisprudence being an abstract and theoretical subject, has no use in the
day-to-day world. It only contains theories to study and adopt with no practical implications. But it
is not correct or appropriate to make such a statement. Its utilities are as under:

1. Salmond attracted everyone’s attention to the fact that jurisprudence has its inherent interests
like other subjects of law. For so long, the research work done on jurisprudence may have their
effect on contemporary socio-political thought or idea.

2. Jurisprudence also has its practical applicability in one way or the other in the field of law. It
helps advocates in practice to apply and adopt different legal theories whenever required.

3. It is considered as a secondary or subsidiary subject but has a high value in educational

institutions. Jurisprudence is an essential subject for the study of law. The logical analysis
by jurists of legal concepts and theories broadens the outlook of advocates and sharpens their
sensible technique to look a case effectively. It helps lawyers overlook their rigidness and formal
nature and trains them to work and focus on social realities.

4. Holland observed, “the ever-renewed complexity of human relations call for the increasing
complexity of legal details, till a merely empirical knowledge of law becomes impossible.” From this,
we can derive that jurisprudence throws light on the basic ideas and the fundamental principles of
law in society. This is the reason it is considered as “the eye of law.”

5. The study of jurisprudence helps students, interns, and all practicing advocates in developing the
correct thinking and prepares them for an honest life ahead. The knowledge of law also helps them
to face every necessity related to human affairs boldly and courageously.

Jurisprudence in Daily Life

“Ignorance of the law is no excuse” is a saying well known throughout the world. Therefore, it
is of prime importance to understand the correct basic principles of law which are contained only in
jurisprudence. It is therefore mandatory that all the people in the country, whether they belong to
the fraternity of law or not, should have the sound knowledge of the law. Every person must
know the law of his land. And this is possible only with the help of jurisprudence!

Relationship between ‘Law’ and ‘Morality’

Ans2:- Introduction

The world around us is a smorgasbord of different beliefs, values, rules, and norms, all of which lay
down how one should behave in society. It is imperative to create distinctions between all of these to
avoid confusion and ambiguity. Two such conflicts which are often talked about together are law
and morality. Laws are formal rules that govern how we behave as members of a society that
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specify what we must do and what we must not do. These are implemented by the state and
judiciary to create a basic and enforceable standard of behaviour for the welfare of society.
Morality on the other hand refers to an informal framework of values, principles, beliefs, customs,
and ways of living. Morals are not legally enforceable but there is societal pressure to abide by the
same.

Relationship between law and morality

Law and Morality are two systems that govern the way humans behave. Law is a body of rules and
regulations that all people are mandatorily obligated to adhere to. Morals, on the other hand, refer
to general principles or standards of behavior that define human conduct within society but are not
compulsory to be followed. The relationship between law and morality is a complicated one and
has evolved over the years. Initially, the two were considered equivalent but with time and
progressiveness, it is highlighted that the two are different concepts, but with certain inter-
dependency between them.

History

In ancient times, when legal regulations were still at a very nascent stage, there was no particular
distinction between law and morals. In India, Dharma was considered as law and morality. Hindu
law, for example, was primarily derived from the Vedas and Smritis which were essentially values
of the people. However, with time, Mimansa put forth certain principles which categorically
distinguished between obligatory rules which are rules that are mandatory to be followed and are
considered as law, and recommendatory rules which are suggested because they are good if they
are followed and would amount to morality. Even in the middle age period, the Bible was
considered as the major factor which influenced the legal regulations. Eventually, with time and
new philosophies, the idea that there is a difference between these two concepts emerged.

Morality as the basis of law

Throughout history, no clear distinction has been made between law and morality. By virtue of a
lack of distinction, all laws found their origin from what was considered morally correct by the
people in a society. Eventually, the state picked up what was morally correct and gave it the form of
laws or rules and regulations. Therefore, the law finds its origin and is based on the values that float
amongst the people, creating a similarity between the two concepts, i.e. law and morality. For
example, it is morally wrong to kill someone or to rape someone. This value has taken the form of a
law. Morality may with time have been distinguished with laws, but it remains an integral part of
legal development. Law essentially involves certain basic principles such as the principle of fairness
and equality, and these principles are derived from ethics and morals.

Morality test of law

The entire purpose of the existence of laws is to ensure justice in society and do what is best for the
welfare of all the people. Since the principle of justice is well under the ambit of morality, many
jurists are of the opinion that there must not be any contradiction between law and morality. Any

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law which does not abide by moral standards should be removed and whether a law is right or
wrong can be evaluated based on whether it is in consonance with moral values.

Morality as ends of law

As stated before, the end goal of enacting laws is to maintain a society that is based on principles of
justice, fairness, and equality. The entire purpose of having certain moral standards is also to
maintain some sort of order in the society which would lead to fewer conflicts. This shows that more
or less, the purpose of both these phenomena is the same. It is believed by jurists that if the law is to
stay involved in the lives of people, then it cannot ignore morals. If there is a law that is against
moral standards, people may be hesitant to obey it which will create further conflicts within the
society.

Difference between law and morality

Law and morality may be interdependent to an extent and have certain similarities such as the
same goals, but there are certain factors based on which the two concepts can be differentiated:

1. Law is derived from an external source which means that it is obtained through rules and
regulations. Morality emerges from internal sources, i.e. it comes from the individual mind of
a person.

2. Law treats all people in the same manner and doesn’t change from person to person but
morality is a subjective concept.

3. Morality has influenced the creation of laws but morality existed in society since even before
legal implications were discussed.

4. Disobedience of the law leads to punishment but there are no repercussions of doing anything
morally wrong.

5. Laws lay down mandatory behaviour that is expected out of the people who are governed
under the said law. However, morality does not lay down strict guidelines of how one should
behave but is a more personal concept.

Philosophical alternatives

There are broadly two theories that have aided in the evolution of law which is legal positivism and
natural law theory.

According to the natural law theory, any grossly unjust law, thereby violating standards of morals,
is not a law at all. This means that law and morality are deeply connected. The term ‘natural law’ in
itself comes from the idea that human morality comes from nature and takes the form of rules and
regulations in a society. Legal theorists who were in support of the natural law theory
were Augustine, Aquinas, Lon Fuller, and more.

Legal positivism on the other hand states that the legal body exists devoid of any norms of morals.
That being said, this theory does not entirely deny the influence of morals on laws. The theory
follows the view that all laws, rules and regulations are man-made and thereby advocate the

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separation of laws and morals. Legal theorists who advocate for legal positivism include John
Austin and H. L. A Hart.

Hart-Fuller debate on law and morality

The Hart-Fuller debate is one of the most interesting exchanges of ideas and opinions between Lon
Fuller and H. L. A Hart on the intriguing interdependency between law and morality. This was
published in the Harvard Law Review in 1958 and essentially highlighted the difference in opinions
in the positivist and natural law philosophy. To understand the points put forth by both these
ideologists, it is important to analyze their beliefs and the reasoning behind them separately.

H. L. A Hart

Hart is a positivist and is thereby of the opinion that while there may be a close relationship
between law and morality, the two are most definitely not interdependent. That being said, Hart
does believe that law has been heavily influenced by the morals that prevail within the society.
According to him, a clear distinction needs to be made between what law should be and what it
ought to be. This is where Hart brought in the problem of penumbra which refers to determining
meaning where the law is ambiguous. Fuller in opposition to this stated that in situations where the
law is uncertain, the judges make decisions based on morality, basically from what ought to be. To
this Hart responded by saying that determining what ought to be must be understood from a legal
sense, and not from a moral one. Essentially, interpretation of the law cannot come from outside of
the legal world.

The law has primary rules and secondary rules. Primary rules impose certain regulations on the
citizens and secondary rules provide power to the state to make and implement these rules. This
means that the law doesn’t have to align with moral standards. Despite making a clear demarcation
between law and morality, he also believes that the two are bound to intersect at some point.

Lon Fuller

Fuller is a naturalist who believed that there exists a strong necessary connection between law and
morals. According to him, all legal norms are based on moral norms. In simplest terms, no law can
be deemed as valid if it does not pass the test of morality which is based on ethical ideas that people
have. Fuller has further categorized morality into two aspects; Morality of aspiration and morality
of duty. The former is concerned with moral norms that are followed by a person for their
individual best interest. The latter on the other hand is more relevant to the smooth functioning of
society by prescribing standards that all people must follow. Fuller also elaborated on two concepts
which are “Internal morality of law” which deals with the procedure of framing laws and “External
morality of law” which is more about the essence of law which is used to make decisions.

Analysis of Hart-Fuller debate

Both these legal philosophers aimed at achieving justice but their way of achieving it was different.
Their ideologies can be better understood with the help of real-life examples. Let’s say the law says
that it is prohibited to park a vehicle in a particular place. Now parking your vehicle in that place is
obviously not morally wrong, but is still against the law. This means that law can exist exclusive of
any moral obligation of interference or dependence which is what has been established by Hart.
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On the other hand, let’s take a look at the Nazi regime when the laws enacted by Hitler were devoid
of concepts of morals and ethics. The Nazi regime, we would all agree, was unfair and cruel to
humanity, and the result of that was not justice. When laws were not in conformity with morals, it
led to injustice and that, in a nutshell, is Fuller’s opinion.

Upon careful examination of their opinions, it can be understood that the ideas of the two
philosophers can definitely be met halfway. Morality and law don’t need to be two far-fetched ideas
and can have a certain amount of overlap between them. However, the legal world will have to
prevail over what people might believe since morality is subjective.

Trolley Problem

The trade-off between making a deliberate choice to save five people by killing one sums up the idea
of the trolley problem. The trolley problem is a fictional scenario in which an individual who is
witnessing the entire situation has the option of saving five people from being hit by a trolley.
However, these gestures come at the price of diverting the trolley towards one person and thereby
killing them. Whether one must do something despite not being legally obligated or understanding if
certain sacrifices are acceptable are questions brought forth through the trolley problem. A lot of
law jurists when thinking about this issue have observed that it must be morally permissible to
avoid five deaths when the alternative is one death. But imagine, what if there was no way to divert
the trolley but you can stop it by pushing a person in front of it. Is it still morally correct because
the outcome remains the same? This is a different case since in this one a person is being used as
means to an end for doing something legally wrong. There are two schools of moral thoughts,
namely the utilitarian perspective and the deontological perspective. The former says that any
action which achieves the greatest good for a greater number of people is morally correct. The latter
on the other hand says that killing an innocent person in any circumstance is wrong.

Dudley and Stephen case

One of the most famous cases that deals with the age-old debate between law and morality are R v
Dudley and Stephens (1884). Whether cannibalism, which was considered a highly immoral act
could be committed when there is a question of necessity and helplessness was discussed in the case.
The facts of the case involved four men who were stranded in a boat, in the middle of the sea, far
away from land. The men had no way of contacting any person and were stuck in the boat without
any food and water. After torturing themselves for seven days without food and water, the captain
of the ship, Thomas Dudley, found an immoral solution. He suggested that one of the four men
would have to make a sacrifice so that the other three could survive by eating his flesh. Edward
Stephens agreed while Ned Brooks refused to go ahead with this plan, and Richard Parker, the
cabin boy was not consulted. Eventually, the boy was killed by Dudley and Stephen following which
the three men fed on the boy’s flesh.

When the men were rescued, the two men were tried for committing the grave offence of murder.
While prima facie it appeared that a crime was committed, the case discussed whether, at that
moment, the man being morally right for saving his own life could be excused from the shackles of
law. However, a clear distinction was made between law and morality and it was observed that

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personal inconvenience or an attempt to save your life by killing another cannot be used as a
justification.

Challenges due to interlink between law and morality

The two concepts of law and morality may be different for a lot of reasons, but the one thing that
they have in common is that the two affect the way we live our lives. Both morality and law are
ambiguous concepts without any definite meaning. Both of these notions have evolved with new
ideas that emerged with time. Nowadays, it has appeared that the idea of morality has started to
differ from one person to another. This means that morality in itself has become subjective; what
may be morally incorrect for one could be morally correct for the other. When there is no fixed
standard of what may be morally right, how exactly can the lawmakers base laws on morals? The
modern world is witnessing a clash between law and morality and there are multiple issues where
these two concepts must not overlap, and the new laws must entirely depend on the existing legal
framework. A progressive outlook, which may not be entirely in line with morals, is required to
enact laws that will ensure justice. The following issues can be analyzed to understand the struggle
between law and morality from a practical perspective:

LGBTQ+ rights

There is a constant conflict within our society regarding the rights of the LGBTQ+ community. Not
everybody thinks that same-sex marriage or being transgender is morally correct. However, this
cannot take away from the fact that when you disallow same-sex marriages or refuse to give to this
community rights that every citizen deserves, you are violating basic principles of the Indian
Constitution such as the Right to Equality and the Right to live with dignity enshrined in Article
14 and Article 21 respectively. Basically, there is a clash within the society regarding what is
morally correct and incorrect when it comes to the rights of the LGBTQ+ community. It took India a
long time but the Hon’ble Supreme Court on September 6, 2018, decriminalized Section 377 of
the Indian Penal Code. Had the Supreme Court continued to base law on what people in the society
believe to be moral instead of principles of the Indian Constitution, it never would’ve been able to
take such a progressive stance in this field.

Live-in relationships

Live-in relationships have often faced a lot of scrutiny from society. Despite it being legal, there are
a lot of moral judgments that follow. The Hon’ble Supreme Court in the case of S. Khushboo v.
Kanniammal (2010) held that live-in relationships are legally recognized as ‘domestic relationships’
and thereby protected under the Protection of Women from Domestic Violence Act, 2005. It was
observed that a live-in relationship comes within the ambit of the right to life enshrined
under Article 21 of the Constitution of India. Live-in relationships can continue to be scrutinized on a
moral ground by certain people in India as much as one wants, but they are legal because law and
morality are not equivalent to each other.

Abortion

The complexities around abortion are multifaceted. Some reasons why abortion is justified and
legalized include the rights of a woman and the protection of a woman’s health. Abortion, however,

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has always been considered morally incorrect because it is believed that it involves taking away the
life of another, which at that particular stage is only a foetus. Unfortunately, women are shamed for
taking this step, especially if the pregnancy is unwanted. Abortion in India has been legal under
various circumstances for the last 50 years with the introduction of the Medical Termination of
Pregnancy (MTP) Act in 1971 and has seen amendment in the year 2021 as well. The legal battle has
been won, but unfortunately, the moral one is still ongoing.

Luckily, the law is not based on the moral beliefs of those who refuse to recognize the rights of
women in such situations. Had morals been considered, this would most certainly be a regressive
move in the area of women empowerment and the spirit to achieve equality between all genders.

Conclusion

It is clear that law and morality have a long history and it is believed that law is heavily influenced
by morality. While that is true, it can also be observed that rules and regulations also have a great
impact on the moral standards that exist in society. For example, when voting rights were not given
to women, the majority of people believed that it is morally incorrect to give women a voice due to
multiple reasons. It is only when this voice took the form of a law that people slowly started
accepting the agency of a woman and their moral ideologies on the issue began to change. Law has
a lot of power to change the way people view things and must be used as a right tool as opposed to
morality. It is essential to understand that there isn’t supposed to be a competition between these
two concepts in terms of analyzing which is more productive for the welfare of the society, but for
law and morality to walk hand in hand for the evolution of the legal world in the most fruitful
manner.

Unit:-2nd
Ques3:-schools of jurisprudence
Ans3:- Introduction

Analytical school of jurisprudence is based on the legal maxim, ‘Ubi civitas ibi lex’ which
signifies ‘where there is State, there will not be anarchy’ and therefore, the underlying principle of
this school is the relation of law with that of a State. The essential concept of the Analytical school of
jurisprudence is to deal with the law as it already exists. Law, according to the Analytical school, is
the sovereign’s direction. As a result, analytical schools are also known as imperative schools. In the
nineteenth century, the analytical school rose to prominence. It claims that morals are not objective
but the law must be objective. If morals are included in the concept of law, the law will no longer be
objective. The analytical school takes a ‘positive’ perspective on societal legal issues. The positivists’
main concern is the law that is actually found (positum), rather than the ideal law. Put simply, ideal
law is the perfect law for a society or a circumstance whereas law which is actually found concerns
logical and welfare thinking in the legislation. Legislations, court precedents, and customary laws
are the most important legal sources. This school, which is the most popular in England, establishes
the fundamental elements that make up the fabric of law, such as state sovereignty and the
administration of justice. While Bentham, Holland, Austin and Salmond are major proponents of
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this school, Austin is considered as a father of the Analytical school. The present article reflects on
the essential aspects related to the Analytical school of jurisprudence.

Positivism in law

The positivist movement began at the turn of the nineteenth century, according to Professor Dias. It
was a reaction to a priori thought, which turned away from the reality of actual law in an attempt
to uncover the universal validity principle in nature or reason. These ideas were used to explain or
condemn actual legislation. Professor Hart had previously said that the term “positivism” had a
wide range of connotations. One interpretation is that laws are orders. The founders of British
positivism, Bentham and Austin, are connected with this notion. Judges do make law, and
positivists do not reject this. In fact, the vast majority of them confess it. The term ‘positivism’ was
invented by a French thinker, Auguste Comte.

The antipathy to metaphysical inquiry and the quest for ultimate principles was shared by legal
positivism and positivist philosophy in general. Metaphysics refers to the studies of what cannot be
reached through objective studies of material reality, for example, cosmology, ontology, etc. Any
attempt by jurisprudential experts to detect and define a concept of law that transcended the actual
facts of existing legal systems was dismissed. It aimed to keep value concerns out of jurisprudence
and limit the discipline’s scope to the investigation and dissection of positive legal orders. Only
positive law, according to the legal positivist, is the law and positive law are those legal standards
that have been created by the State’s power. Legal positivism has made its most visible appearance
in analytical jurisprudence, and therefore the latter acquired the name analytical positivism.
Analytical positivism takes a given legal order as its starting point and distils certain fundamental
notions, concepts, and distinctions from it using a predominantly inductive method, possibly
comparing them in order to find some common elements.

An insight about the Analytical school of jurisprudence

Various names have been attached to the Analytical school. It is known as the Positive school
because its adherents are unconcerned about the history or future of law, but as it currently exists.
The Analytical school was dominant in England and therefore also came to be known as the English
school. It is known as the Austinian school because it was founded by John Austin. This school takes
the evolved legal system for granted and continues logically to analyse and classify its key
principles in order to reveal their interrelationships. Analytical jurisprudence is the name given to
this school because of its focus on the methodical investigation of legal principles. Analytical jurists’
initial interest is to comprehend the structural character of a legal system, and discussions about
justice are not only unnecessary but also dangerously confusing for this aim. This approach to law
is termed analytical and such writers are styled as Analytical positivists.

The Analytical school views law as a sovereign’s mandate. It emphasised the importance of
legislation as a source of law. The notion of law underpins the entire system. Analytical
jurisprudence does not produce its premises, rather, the law provides them. Analytical
jurisprudence’s role is to accept these premises and break them down into their ultimate atomic
constituents in a well-organised legal framework. This school views law as a closed system of pure
facts that excludes all norms and values.

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Purpose of the Analytical school of jurisprudence

The purpose of Analytical jurisprudence is to examine the foundational principles of law without
regard to their historical origins, evolution, ethical importance or validity. According to Salmond, a
book of analytical jurisprudence will deal with an analysis of the concept of law, an examination of
the relationship between civil law and other forms of law, an analysis of the various constituent
ideas of which the complex idea of law is made up, such as State, sovereignty, and administration of
justice, an account of legal sources from which law proceeds, as well as an investigation of the
theory of legislation, and so on.

Function of the Analytical school of jurisprudence

The Analytical school’s fundamental objective is to provide legal principles in a clear and methodical
manner that is relevant to a larger and more developed legal system. It begins with the real facts of
law as they exist now. It tries to define those words, explains their meanings, and illustrates how
they are related to one another. One of the goals of the Analytical school is to have a thorough
knowledge of the underlying notions that underpin all legal thinking.

Significance of the Analytical school of Jurisprudence

Analytical Jurisprudence’s significance stems from the fact that it provided clarity to legal
reasoning. It gave us a vocabulary that was clear, precise, and scientific. It accomplished Austin’s
goal of “clearing the heads and untying the knots.” It purposefully left out all external elements that
aren’t covered by the law.

Founder and advocates of the Analytical school of jurisprudence

Bentham (1742-1832), Austin, Sir William Markby (1829-1914), Sheldon Amons (1835-1886),
Holland (1835-1926), Salmond (1862-1924), and Prof. HLA Hart (1907) are the most prominent
proponents of the Analytical or Positivist school in England. Gray and Hohfled aided this school in
the United States, while Kelsen, Korkunov, and others aided it on the continent of Europe.

Everything that Bentham had to say

Bentham advocated for an imperative conception of law, in which sovereignty and command are
central principles. The contrast between social desirability and logical necessity was recognised by
Bentham. He also accepted divided and partial sovereignty while debating the legal constraints that
the sovereign authority may face. In general, sanctions play a less important role in Bentham’s
theory than they do in Austin’s. Even if simply supported by religious or moral consequences,
Bentham believed that a sovereign’s edict would constitute law. Alluring incentives and the idea of
rewards are acknowledged in Bentham’s account.

The English lawyer John Austin (1790–1859) published a much-simplified version of Bentham’s
philosophy of law, which helped set the agenda for key work in the twentieth century. Bentham also
advanced a critique of the common law as the exclusive domain of the professional elite, lawyers
and judges, in which often obscure and technical language was used to keep the law shrouded in
mystery from the perspective of ordinary citizens, all in the service of perpetuating the myth. In
Bentham’s opinion, lawyers are experts in “artificial reason,” as Coke had first proposed.

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Bentham contrasted expositorial jurisprudence (that is, what the law is) from censorial
jurisprudence (that is what the law ought to be). His definition of law is “law is an assemblage of
signals, affirmations of intention conceived or chosen by a sovereign in a State.” While supporting
the economic idea of laissez-faire (minimum government intervention in people’s economic activity),
he advocated for utilitarianism which signified that ‘the legitimate purpose of every legislation is the
advancement of the greatest pleasure of the greatest number.’ Bentham defined utility as “the
property or tendency of a thing to prevent some evil (‘pain’) or procure some good
(‘pleasure’).” According to him, the role of legislation should be to achieve these goals, namely, to
provide sustenance, produce abundance, promote equality, and preserve security.
Bentham’s hedonism doctrine, or philosophy of pain and pleasure, has been attacked on the grounds
that pleasure and suffering cannot be the final measure of a law’s fitness.

John Austin and his sayings

John Austin (1790-1859) worked as a lecturer at the University of London. He used the analytical
technique – ‘Law should be rigorously examined and evaluated, and the principle underlying it
should be discovered’ and limited his research to Positive law that is Jus positivism (‘Law, simply
and strictly so-called: Law set by political superiors to political inferiors’). As a result, he used the
terms “analytical,” and “positivism,” to describe the school he formed, therefore, the Analytical
school of jurisprudence is also known as Analytical Legal Positivism. Being the father of the
Analytical school, his lectures got published under the title, “the Province of Jurisprudence
Determined.”

Austin defined law as “a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him”. According to him, ‘proper law’ encompasses God’s law, Human
laws, and Positive laws. Laws by analogy and laws by metaphor are two types of ‘improperly’
named laws. Austin claims that “Positive morality” comprises laws not imposed by men (as political
superiors) or in the pursuit of a legal right, as well as laws imposed by analogy, such as fashion
laws. He further stated that the improper laws were not sanctioned by the State.

Law = command + sanction + sovereign

Austin noted that every law, properly referred to as such, must have three elements, namely,
command, sanction, and sovereign authority thereby intending to say that “law is the mandate of a
sovereign, ordering his subjects to do or refrain from specific actions. If the command is not
followed, there is an implied threat of punishment”.

A ‘command’ is a declaration of a specific individual’s or group’s wish that another person does or
refrain from doing anything that would result in evil in the case of disobedience, i.e. ‘sanction.’ As a
result, every law is a command that imposes a responsibility and is enforced by punishment. A
command, according to Austin, can be specific (directed to a single individual or group of people) or
universal (issued to the whole community and informing classes of acts and forbearances, they are
often referred to as ‘continuous orders’). A specific command is effective when the individual or
group being commanded obeys it whereas a general command is successful when the majority of a
political society obeys it on a regular basis.

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According to Austin ‘if a definite human superior not in the habit of obedience to a similar superior
gains habitual obedience from the mass of a given society, that determinate superior is the
sovereign in that society’. As a result, the fact of obedience is the foundation of sovereignty. The
sovereign’s power is unrestricted and indivisible (there is no separation of powers). The sovereign is
not constrained by any legal restrictions or their own laws.

Only the legal systems of civilised nations may become the legitimate subject matter of
jurisprudence, according to Austin’s conception of law as the “command of the sovereign,” because
the sovereign can only execute their orders with an efficient administrative apparatus in such
societies. Customs are not taken into account in Austin’s definition. Austin believes that there are
three types of law that, while not commands, may be included in the scope of jurisprudence as an
exception, namely declaratory or explanatory laws, Laws of repeal and Laws of imperfect
obligation (no sanctions attached). According to him, Constitutional law derives its force from a
public opinion regarding its expediency and morality.

Criticism of Austin’s theory

1. Austin’s thesis is questioned since punishment isn’t the only way to get people to obey. The
concentration on punishment as a mark of law in Austin’s theory obscures and distorts the
true nature and purpose of law in a community. He dismisses law as a man-made construct,
ignoring its characteristic of organic growth. As the community accepts the law, it is
followed. In modern times, the law is nothing more than the people’s collective will.
Furthermore, the Constitution’s norms and conventions control the conduct of the people and
the State, despite the fact that they are not enforceable by law. Furthermore, court judgments
(precedents) become binding laws despite the fact that no one has commanded them.

2. Austin’s difference between positive law and positive morality, according to Justice Holmes,
is to keep notions of virtue and badness out of the sphere of law. According to Austin’s
positive law, there is no place for ideals or justice in law, because “the existence of law is one
thing, its merit and demerit another. A law that actually exists, is a law, even if we happen to
dislike it or if it differs from the text by which we regulate our approval or
disapproval.” Austin’s approach disregards laws that are permissive and grant privileges (eg
the Bonus Act, Law of Wills). Bryce had observed that “Austin’s contribution to legal research
is so meagre and mired in mistakes, that his work ought no longer to find a position among
those required for students.”

3. The concept of command, according to Duguit, is inapplicable to modern social/welfare law,

which does not order individuals but confers advantages, and which binds the State rather
than the person. Law does not only issue instructions, it sometimes grants rights, such as the
right to form a will. As a result, Austin’s legal idea is manifestly inapplicable in today’s
democratic welfare state. In India, for example, it is impossible to find a single sovereign who
can be said to have unrestricted and absolute power to establish laws. Austin’s idea may be
extended to the highest British Parliament (there is no division of power in England into
different organs of State that is the legislature, executive and judiciary).

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4. Prof Hart had remarked to Austin that “however, the explanation of precisely where and why
he is incorrect has proven to be a continual source of enlightenment, for his faults are
frequently the misinterpretation of essential facts for the comprehension of law and society”.
According to him, the Austinian formula specifies one crucial requirement, namely that if
laws impose responsibilities or duties, they must be ‘usually followed.’ However, although
necessary, this merely accounts for the legal system’s “final result.” The overwhelming
evidence against Austin should not hide the reality that law is made up of prescriptions for
behaviour, which are frequently expressed in the imperative form.

Professor Dias’s comparison of Bentham and Austin’s propositions

Prof Dias compared Bentham and Austin and came to the conclusion that the former had a more
comprehensive and flexible theory than the latter. The following are the significant grounds of
comparisons that Professor Dias had put forth:

1. Betham’s definition of sovereignty was open-ended, avoiding the constraints of indivisibility

and illimitability. He was able to accommodate the division of authority across organs, as in
a federation, or division in specific sectors, as well as authority constraints and self-
bindingness.

2. Bentham had a larger understanding of the law than Austin, and the former avoided the
absurdity of “law properly so-called.”

3. Bentham’s sanction was both broader and less significant than Austin’s. Even if they are
justified by moral or religious sanctions, laws are laws. They might even be accompanied by
awards.

4. Bentham didn’t have to use “sanction by nullity.” His theory had a flaw in the imperative
basis, but it was so much larger and less rigid than Austin’s that he was able to accommodate
permissions up to a degree. He avoided the fiction of ‘tacit command.’

Hart’s concept of law

Professor Hart (1907) is often recognized as the most prominent exponent of British positivism in
the modern era. He criticised Austin’s thesis in his noteworthy work “The Concept of Law.” Hart
observed that “law consists of norms with a broad applicability and non-optional nature, yet which
are susceptible to formalisation, legislation, and adjudication”. He said that law is a collection of
social norms (rules derived from social pressure) that take on the form of legal regulations. The
term ‘law’ refers to a set of “publicly ascertainable regulations.” According to Hart, the law is the
same as a legal system. A ‘legal rule’ is one that establishes a code of behaviour that is followed with
the expectation. The law establishes a standard of behaviour, not a demand. This norm is followed
not just because there is a sense of duty to do so, but also because others are expected to do so as
well. As a result, even though a person cannot be forced to respect the law, he or she is nevertheless
considered to have a duty to do so. As a result, the law is more concerned with duty than with
coercion. A related concept to a ‘responsibility’ is an obligation.

According to Hart, the concept of duty signifies that a rule is accepted by the people (i.e., it is
internalised) rather than habitually obeyed (as defined by Austin). There is a distinction between
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internal and exterior elements of regulations. The former means “having a responsibility” (without
force), whilst the latter entails “being obligated” (under a compulsion). According to Hart, Austin’s
predictive theory ignored internal features of rules and only dealt with exterior ones. There are two
sorts of rules, according to Hart. The main rule establishes norms of conduct or imposes obligations
(for example, international law), whereas the secondary rule determines, introduces, eliminates, or
modifies the primary rule. Power-conferring rules, public or private, are the secondary rules (e.g.
statutes, constitution). The ‘rules of recognition,’ which give authoritative criteria for determining
main norms of duty, are developed from these. The ‘ultimate rule of recognition’ is the last
requirement for a legal order’s legality. A legal system’s core is made up of the union of main and
subsidiary rules. A civilisation ruled solely by fundamental laws (i.e., a simple primordial society) is
inefficient, stagnant, and unpredictable. The legal order must be effective, which means that citizens
must follow main norms and authorities must follow secondary regulations. These two
requirements are both essential and sufficient for a legal system to exist.

Hart created a theory of law in which official behaviour plays a fundamental role. Some of the
“puzzles” associated with the concept of legal validity, according to Hart, address the relationship
between the validity and efficacy of legislation. When a rule meets all of the conditions set out by the
rule of recognition, it is considered to be “valid.” When people follow the rules, they are called to be
‘effective.’ It is not necessary for an ultimate rule of recognition to be legitimate, but it should not be
ignored, i.e. it must be effective (officials must obey it).

Criticism of Hart’s proponents

Some jurists, like Ronald Dworkin and Lon Fuller, have harshly challenged Hart’s idea of law.
Dworkin distinguished between ‘rules’ and ‘principles,’ stating that a legal system cannot be viewed
just as a collection of rules, but rather as a collection of sound principles and policies. He stated
that “a principle is a norm to be followed because it is a necessity of justice, fairness, or another
facet of morality.” Fuller felt that the legal system, as a tool for normal human behaviour, should be
concerned with both law as “it is” and law as “it ought to be.” Thus, the law cannot be completely
divorced from the concept of morality.

Kelsen’s concept of law

Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of legal philosophy, offered a “pure theory
of law,” that is, a theory-free of social, historical, political, psychological, and other influences thus
omitting everything that is not technically law and logically self-supporting. The law is a normative
(‘law as a coercive order’) rather than natural science, and it comes with punishments. The test of
legality can be found inside the legal system itself. He described the law as “a set of rules governing
human behaviour.” Laws, according to Kelsen, are ought propositions, or ‘norms’. If X occurs, then
Y should occur. As a result, if someone steals, the individual should be penalised. Law does not seek
to describe what occurs in reality (‘is’), but rather only prescribes a set of principles. An act of
volition has a legal meaning called a norm. It refers to the act of commanding, permitting, or
authorising specific behaviour.

A norm is valid only because it is derived from or decreed by a higher standard. This requires a
‘ladder of norms,’ with one norm legitimate based on the validity of another norm. There are also

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‘dependent’ or facilitative norms that do not coerce people (for example, the right to write a will, the
President’s authority and the use of force in self-defence). The so-called “independent” norms are
actually coercive norms. The dependent norms are dependent on their validity on the independent
norms (e.g., Section 299 of the Indian Penal Code, 1860 derives its validity from Section 302). As a
result, the legislation does not have an exclusively commanding or obligatory nature.

The law is a set of behavioural standards that may be traced back to a grundnorm, or fundamental
norm, from which they gain their legitimacy. The grundnorm must be effective, that is, people must
have trust in it, otherwise, a revolution will occur. There will always be some type of grundnorm in
any legal system, whether it is in the shape of a Constitution or a dictator’s will. The grundnorm will
be that the ‘Constitution needs to be observed’ when there is a written Constitution (for eg in India,
USA). Where there is no written Constitution (like in the United Kingdom), the grundnorm must be
derived from social behaviour. The grundnorm of international law is the concept ‘pacta sunt
servanda’ (treaty duties bind parties).

While the validity of norms issued from it is accounted for by the grundnorm, one cannot account
for one’s own validity by referring to another norm. Its validity cannot be objectively evaluated,
rather it must be assumed or pre-supposed. It searches for evidence of its own legitimacy in areas
other than the law. It does, however, confer legality as long as the legal order is ‘by and large
effective.’ It should secure a minimum efficacy, and when it loses the support of the people, it should
be replaced by another grundnorm.

No theory of justice can form part of the pure theory of law. Kelsen painted a formal, scientific, and
dynamic picture of the judicial system. He has had a significant impact on modern legal philosophy.
Kelsen’s idea has been vigorously maintained by eminent jurists such as Stone and Friedmann.

Criticism surrounding Kelsen’s theory

Kelsen’s thesis is criticised because he believes that a legal order is lawful if it is successful,
regardless of whether it is an illegitimate rule enacted by unconstitutional means. This suggests that
law is a system of external coercion, in which individuals are compelled to follow laws. The
effectiveness of a grundnorm does not always imply that legislation is valid. Kelsen does not specify
a criterion for determining grundnorm’s minimal efficacy. The grundnorm only generates or
verifies a legal or tier, but it does not offer content to a legal order. The courts are responsible for
determining the grundnorm standard and determining the legitimacy and efficacy of a legal order.
Kelsen’s assumption that all norms save the grundnorm are pure was disputed by Julius Stone. He
claimed that other norms that take their legitimacy from grundnorm cannot stay pure when
grundnorm is a composite of many social and political variables. He had said that ‘we are invited to
forget the illegitimacy of the ancestor in admiration of the pure blood of the progeny.’

Austin, Kelsen, and Hart’s ideas are dominated by coercive components. According to their beliefs,
any social norm becomes legislation if certain formal conditions are met, regardless of its
underlying worth or quality. The essence of law is found in its purpose rather than its form.
Morality is excluded from the law by all three philosophers because morality no longer plays a role
after a law is enacted.

Conclusion
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The different schools of thought in jurisprudence indicate distinct approaches in handling the
subject. The Analytical school of jurisprudence highlighted the positive approach that needs to be
adopted to address legal challenges. The school came with its own sets of pros and cons that the
article highlighted, nevertheless one cannot ignore that the school had a lot to offer to society in
general.

Historical school:-
Historical school advocated that law is developed from social custom , economic needs, convention
religious principle , and relations of the people living in a state. The advocates of this school argued
that law is not made but is advanced from the pre-existence materials like customs and religious
principles , unlike the natural school , which believed that law originates from superior authority or
sovereignty .

Historical School Of Jurisprudence- Concept and Meaning

The jurist of this school believed that law should be changed with the changing need and nature of
the person and they followed concept of man-made laws. Therefore, It would be seen that historical
school developed as a stimuli to legal theories propounded by analytical positivists and the natural
law philosophers. The latter states that the law was founded on the abstract notion of the human
conscience and reason.

The school rejected the idea of formation of law by judges and the origin from some divine
relevance. Historical school banished ethical consideration from jurisprudence and rejected all
creative participation of judge and jurist or law-giver in the making of law. Fredrick Pollock was
one of the supporter of historical school , he believed that morals, as such were out of the domain of
judge or jurist.

Background
The revolutionary ideas that were born by positivistic legal thinking had a devastating effect as they
failed to meet the needs of the people due to which new approach was propounded, known as
Historical conception of law. The advocates of this school believed that law has biological growth
and it has not evolved in an arbitrary and prompt manner.

Montesquieu (1689-1755) was the first jurist to adopt historical method of pursuing the study of
legal institutions and came to the conclusion that laws are the creation of climate and local
situation. He did not briefed further into the co-relation of between law and society but certainly
pointed out that law must keep pace with the changing needs of the society.

James Carter, an American jurist argued that law came to the existence even before the political
revolution or consciousness , therefore , it has to be traced and identified with the customs followed

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in a given society. And so he focused on the historical evolution and development of law. However,
identifying law with custom alone will not be a correct proposition. Custom at its best can be one of
the many source of development of law.

As per English Legal Historian Holdsworth pointed two major factor that are responsible for the
emergence of historical school of jurisprudence namely , i) The French Revolution and its aftermaths
,and ii) Darwinian theory evolution which altered the character of scientific speculation during that
period concerned. This was even supported by apex court of India, i.e. Supreme Court of India in
case Byram Pestonji Vs. Union Of India 1991, where court quoted justice Thomen as, Indian
legal system is the product of history. It is rooted in our soil , nurtured and nourished by our culture
, languages and traditions , fostered and sharpened by our genius and quest for social justice ,
reinforced by history and culture.

Difference between Historical Jurisprudence and Legal History

It is certainly important to distinguish the legal history before discussing the in-depth content of
Historical Jurisprudence. Legal history merely deals with the factual narration of the development
of law and various legal institutions of a community in a particular order. Whereas, historical
jurisprudence, on the other hand , went to the extant of examination of manner, circumstances and
factors responsible for the growth of law and takes account of the social forces significantly which
operates in the process of the evolution of law.

In words of Dr. C.K. Allen:

When, in order to apprehend the nature or an idea of any legal institution or system of institution, it
is necessary to determine the actual circumstances of the development , then we must involve the aid
of legal history when our chief aim is to abstract the idea itself rather than actual matter of fact
which surround it, then it is perhaps correct to say that we are engaged in the study of historical
jurisprudence rather then legal history. However, it is doubtful whether any rigid line of
demarcation can ever bed drawn between historical jurisprudence and legal history they differ only
in degree and not in kind.

The major spotlight that historical school throws is upon , how racial, ethnic or linguistic traits of
law are embedded in the culture and heritage of a community concerned.

Montesquieu (1689-1755)

As far as France is concerned , Montesquieu is said to be the founder of historical school of

jurisprudence through his classic work Spirit of Laws in 1748. He focused on the evolution and
development of law to the effect of cause and effect in a given social surrounding and biological
environment. He contrasted that , laws should be adopted to suit the people for whom they are
framed keeping in view the degree of liberty which constitution desires to grant to its people.

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As per his learnings, there is nothing like good or bad in law, as it essentially depends on political
and social conditions and environment prevailing in the society. Although , he was opposed to
natural law , he laid the foundation of comparative and sociological jurisprudence.

Volksgeist as a Source of Law

It was firmly believed by Savigny and Georg Friedrich Puchta (1798-1846) that, Law is a product of
of the general consciousness of the people and a manifestation of their spirit. And so , codification of
law of German land was not seen as desirable action for its smooth development at that period of
time, which lead to delay in codification of German law by fifty years.

Some of the great words that I recall of Savigny are that:

When a law is made without taking into consideration the past historical culture and tradition of
community is likely to create more confusion rather than solving the problem because law is not
an artificial lifeless mechanical device merely .

As per theory of Savigny, origin of law lies in the popular spirit of the people which he termed as
Volksgeist . While learning about the contribution of Savigny , Friedmann observed that Savigny
and his followers interpreted history in the name of tradition , custom and nation against the belief
along with the four corners of conscious and rational law making. He propounded legal philosophy
from the evolution of history.

Some briefly explained contribution of him are as follows:

Law develop like language - Savigny focused that the law has a national character and it develops
like any language and binds people into one thread, by way of their common faiths, beliefs, and
convictions. As per him, law grows with the growth of the society and gains its strength from the
society itself and finally it withers away as the nation loses it nationality. Common conviction of the
people makes all thee as a single whole.

The central theme of Savigny's historical jurisprudence can be summarised as

follows:

The evolution of the law with the life and character of the people develops with the ages , and in this
it resembles language. As in the latter, there can be no instant of rest , there is always movement ,
and development of law is governed by the same power of internal necessity as simple phenomena.
Law grows with the nation , increases with the nation and dies at its dissolution and is a
characteristic of it. Thus, he pointed that law is not universal in nature like language, it varies with
people and ages.

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Early development of law is spontaneous; thereafter jurist develop it:

Savigny stated that in the earliest stages law develops promptly as per the internal needs of the
community but after the community reaches a certain level of civilisation , the distinct kinds of
national activities , hitherto developing as a whole , divided in different branches to be taken up for
further study by specialist such as jurist , linguists, anthropologists, scientist , etc. Law has to play a
duel role, as like regulator of general national life and as a distinct discipline fro study. The former
maybe called the political element of law while the latter as a juristic element but both have a
significant role in the development of law.

Savigny opposed to codification of German Law:

He as not blindly against the codification of law , however, opposed the codification of the German
Law on the French pattern at that time due to Germany was then divided into several smaller states
and its law was primitive, immature and lacked uniformity . He was opinion that Germany law
could be codified at a later stage when the unification of Germany takes place and there is one law
and one language throughout the country. Since Volksgeist i.e. common consciousness had not
adequately developed at that time, therefore, codification would have hindered the evolution and
growth of law. He also focused that codification of German law without jurists of sufficient genius
and adequate expertise in Roman law would not serve the desired purpose of Roman law formed an
integral part of the German legal system at that time.

Law is a continuous and unbreakable process:

While learning the evolution of law from Volksgeist , i.e. people's spirit or consciousness. Savigny
considered its growth as a continuous and unsurpassable process bound by the golden thread of
cultural , traditions and beliefs. It has its roots in the historical process which should constitute the
subject of study for the jurist. According to his work, codification of law may hamper its growth and
therefore, it should be restored to when the legal system has fully developed and established its great
foundation.

The main tenants of Savigny's theory can be summarised as below:

1. Law has an unconscious natural growth , it is neither found nor artificially made

2. The foundation of law is to be found in Volksgeist which means people's consciousness or will,
and consists of tradition , customs , habits , practices and beliefs of the people.

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3. Law is not universal in nature but like linguistic nature, it differs with people , time and needs
of the community.

4. Since aw should always conform to popular consciousness i.e. Volksgeist, custom not only
precedes legislation but is superior to it.

Custom against Savigny's Theory of Law

His theories has been opposed by his critics on several grounds , the major among
them are as follows:
There are certain non-alignment which are apparently observed in the Savigny's theory. He focused
upon the national character of law but at the same time suggested a model by which Roman law
could be adopted and accepted as the law of Germany. By such , he located origin of law in people ,
i.e. Volksgeist , that popular conscience but at time asserted that certain customary principles of
Roman law had universal application application.

It is said that Savigny's theory of law is negative , obscure and suffers from narrow sectarian
outlook. He was against codification of law which is one of the most accepted forms of modern
progressiveness legislation. The following anti-codification attitude of him delayed the codification
of Germany law for more than fifty years.

Savigny asserted that popular consciousness is the sole source of law is not wholly true. The theory
of Volksgeist , precedent, etc. in the evolution of law. There are many areas which would have been
left without legal rules because there never existed any popular consciousness about them.

Conclusion
By learning various theories of renowned jurists , we can have certain understandings and have an
insight about the foundation of law of the school concerned. The historical school has great
relevance of Hindu jurisprudence of ancient India. The perception of law in the ancient Hindu
society differs from what it is today. Law was a part of dharma which meant rightful conduct and
an act with noble intentions. There was miniature difference between two concept , namely, dharma
and law.

To be more precise , if dharma was a circle and it took law within its sweep. In other-words, if
dharma was a circle , the law an arc of the circle. Therefore, there was no disharmony between the
two. As per the learnings of Manusmriti, conduct is the basis of dharma. It is not what you say
but what you do which constitute dharma.

Henceforth, the Indian independence brought in its wake a new era in the development of Indian
jurisprudence with emphasis on justice , equality, liberty and individual freedoms and rights. The
preamble to the Indian Constitution along with the chapters on fundamental rights ,fundamental

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duties and directive principles of state policy constitute the core Indian constitutional philosophy.
The insertion of words like secular, unity, and integrity etc.

Perhaps the greatest contribution of Historical school of jurisprudence towards the law making of
India , lies in the fact that it helped in abolishing the old vestiges of discrimination and exploitative
laws ensuring people social , economic, and political justice by removing their disabilities and
incapacities.

Philosophical school of law

Philosophical School of Jurisprudence

Introduction

Jurisprudence, in simpler terms, is the study of legal philosophy that helps one unravel law through
theoretical hypothesis and investigations; especially since the interpretation of the law may very
much vary from individual to individual. Based on this, Jurisprudence has been divided into five
schools in which we will be focusing on the Philosophical School of Jurisprudence in this article.

Philosophical School or the moral school of jurisprudence has many names – one of the most
common ones being the Natural Law or Divine Law of Jurisprudence due to the prominent Jurists
of this school advocating the sources of law as God, Nature or Reason. According to this school, the
law is universal and eternal in nature with a rational and reasonable approach which is a direct as
well as logical progression from human morals. In a nutshell, this school explores law in the aspect
of what it aspires to be and intends to accomplish – moral, reasonable, and just.

With the sources of law being as diverse as Nature to Reason, the eminent philosopher/Jurist under
this school are just as diverse; and thus, have been classified into four parts on the basis of their era:

 Ancient period

 Medieval period

 Renaissance period

 Modern period

Ancient Period

This period highlights the contributions of famous philosophers who regarded law closely to the
concepts of virtue and morals. These philosophers are further divided into Greek philosophers and
Roman philosophers who have set the stone for the philosophical school during the 5 th century BC.
These philosophers include:

Socrates

 Famous Greek philosopher who advocated that virtue and ethics is knowledge and anything
not virtuous is still – which he also applied in the case of the law.

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 According to him, a man has his own ‘human insight’, which makes him judge whether some
act is right or wrong.

 Law, according to Socrates, is a mere product of correct reasoning.

 It is this insight, according to him, by which a man is able to remember the ethical values in
him. This insight and thus, reasons stemming from one’s morals is the source of law.

 He divided the concept of Justice into two parts – natural justice, which is uniform and
universal according to him and legal justice, which is man-made laws that differed from
place to place.

 However, he did support man-made law or positive law, but argues that it should not be
blindly followed – rather, it should be critically evaluated by men using their ‘human insight’.

Plato

 Another famous Greek philosopher who supported Socrates’ philosophy of law

 According to him, State is organic and a product of will only made in order to meet the needs
of humans. He argues that human nature wants to go towards the goodwill; thus, defining
the ethics and morality in a human which pursues them to achieve their full potential.

 He perceived us to be living in an orderly universe where everything happens for a reason

and thus, justice is discoverable through reason and with minimum intervention from the
State.

Aristotle

 Aristotle is the Greek philosopher and disciple of Plato who gave the Philosophical School a
proper ground by defining the concept of natural law; thus, is regarded as the founding
father of this school.

 He supported Plato’s theory and added that law is either particular, that is, differs from state
to state and is codified, or general which is unwritten and stems from virtue, ethics and
religious values.

 These general laws, according to him, are derived from nature and are universally valid.

 He advocated that these universally valid laws are discoverable through nature and any
man-made law should conform to these.

Stoic

 Stoic was a popular Roman philosopher who helped build a majority of the Ancient Roman
laws as we know them.

 He was inspired by Aristotle’s philosophy and even based his own theory on his but changed
it to focus it more on ethics.

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 According to him, the universe is like an organism governed by the fundamental function of
Reason. Thus, a man’s reason is also part of the universe and when he lives his life according
to this reason, he is living according to nature.

 He further argued that it is a man’s duty to obey the law of nature.

 He regarded Reason and human ethics as the source of law and argued that natural law is
the fundamental base of any legal system.

Cicero

 Cicero is another Roman philosopher who advocated Reason as the source of law.

 He believed the law to be of the highest reason that is implanted in the nature that
differentiates what ought to be done and what is not.

 He advocated that this reason develops into law once it is firmly fixed as well as fully
developed in the human mind.

 He regarded State as nothing but an instrument to uphold the law in the harmony of nature.
Any State that does not perform as such, is not a State.

 Other than that, he described the law as normative in nature; that is, the law is not a matter
of opinion, but rather a matter of fact.

Medieval Period

This period is mainly highlighted by the rise of religious philosophies which was also extended into
Jurisprudence by these legal philosophers:

St. Augustine

 He was infamously known as the ‘Christianised Plato’ due to his theories being inspired from
his with a bit more focus on religion than Plato did.

 He believed natural laws to be derived from God as a direct influence of God on the human
mind and argued it as a part of the natural foundation of Christianity.

 Therefore, according to him, the source of law is God who influences law by logic and order.

 According to him, justice was one of the building foundations of a State and no State could
function without it; thus, advocating justice as the groundwork of his Ideal State that he
viewed as a conformity to the universal order from the part of an individual.

St. Thomas Aquinas

 He was one of the most prominent papal-cause champions of the Middle Ages and a notable
follower of Aristotle.

 His theories were very similar to that of Aristotle’s but with a high focus on Christianity.

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 He defined natural law as the obedience of reason for the common good.

 According to him, ‘unjust’ laws deserve no obedience and the only laws a man should follow
are the laws set in nature by God which he can find by applying reason and studying
religious scriptures.

 He primarily classified law into four forms:

 Law of God or Eternal law (revealed through fate)

 Law of nature (revealed through nature)

 Human or man-made law (derived from Reason)

 Law of Divine or scriptures (derived from religious scriptures)

Renaissance Period

This period highlights the revival of this school as the legal philosophers and scholars of this time
restudy the Greek and Roman philosopher’s theories regarding the law. Most of the philosophers
under this period focus on the origin of the State and gave their theories that formed what we know
as the ‘Social Contract Theory’. These philosophers included:

Hugo Grotius

 He was a Dutch national and Republican philosopher who was known for his contributions to
International law and was even claimed to be the founding father of it by many.

 He was the first one to detach law from religion; preparing a stable path for the modern and
more secular version of natural law to be laid down.

 According to him, natural laws are definitive in nature with no requirement of the confidence
of God; thus, making it a matter more focused on lawyers and thinkers than the Divine.

 He believed that natural law and its ethical morals connect to all sane and social creature,
Christian or non-Christian alike.

 In his work ‘The Law of War and Peace’, he stated that natural law stemmed from not only
morality but also the very social nature of man; with both being based on the concept of
righteousness.

 According to him, State was formed by an association of free men who made a contract to
transfer their sovereign powers t a ruler who acquired it as his private right. This was done
so the men could enjoy their rights without any interference and for the common interest of
the community.

 The Ruler, according to his Social Contract Theory, must follow the natural laws. However, if
he misuses his power, his subjects have no right to revolt against him – thus, making their
political obligation towards the ruler unconditional.

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 Other than that, he gave five chief principles that defined natural law:

 To abstain from things that belong to another individual;

 To restore any goods of another we may have with us;

 To fulfil promises and pacts made to others;

 To repay damages to others caused by our fault;

 To punish those who deserve it.

Thomas Hobbes

 He is one of the most famous philosophers of Social Contract Theory and he believed in the
existence of natural rights.

 According to Hobbes, men before there was any State, behaved like wild animals – ‘solitary,
poor, brutish and short’. The state of nature before the formation of the State was one of war
and chaos.

 This caused men to be insecure about their safety and natural rights. Thus, they came
together and consented to give all their natural rights to a Ruler through a social contract.

 However, he advocated this social contract to be only unilateral, that is, only the subjects had
any obligation towards the Ruler and the Ruler didn’t. Thus, the subjects portrayed to have
an unlimited or unconditional obligation towards the State-structure.

 He painted the Ruler as the ultimate sovereign symbolized by Leviathan (a sea monster) who
dominates all. Thus, it can be said that he supported absolutism.

 He advocated that the State stood for stability and security of the natural rights of the
subjects which they protected and preserved through law and order established by the State.

John Locke

 Locke’s theory on Social Contract was more based on liberalism rather than the absolutism
showcased by Hobbes’ theory.

 According to him, the nature of men before the formation of the State was calm, free and
peaceful.

 The only reason people came together to form the State was to protect three principles of
natural rights; namely the right to life, property and liberty.

 The State, in Locke’s theory, was in a bilateral contract created as a trust which dissolves if
they fail to person their function. Thus, making the obligation of the subjects towards the
State limited and conditional.

Rousseau

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 Rousseau believed the state of nature as idyllic blissful as man was close to nature and
enjoyed liberty without any restrain.

 However, the gradual increase of population brought on the insecurity of scarcity which led
to the conflict of interest between an individual’s will and the will of the community.

 According to Rousseau, to overcome this conflict, men formed a community and gave up their
natural rights to the State for the preservation of the rights and live according to the ‘general
will’.

 However, he advocated absolute sovereignty and unlimited obligation of the subjects towards
the State just like Hobbes but differed in the concept that by placing their trust in the State,
they are also obligating the general will as they are a member of it themselves.

Modern Period

As the nineteenth century arrived around, the advocacy for natural law declined as the focus shifted
more and more towards other aspects of the law. With modern-day scepticism, the Social Contract
theories were concluded as nothing but myths while the absolute and unchangeable principles of
natural law were brushed aside as impractical and overdue. With other schools like Analytical and
Historical, Jurists started leaning more towards them due to their practicality and the advocacy of
philosophical school slowly waned.

However, by the time the twentieth century arrived, the belief in philosophical school also came
back in as many held it up against the rigid advocacy of positive law and argued that even if
idealistic, philosophical school did have some factual base to it which was acknowledged by many at
this era.

Conclusion

Philosophical school is one of the oldest schools of Jurisprudence and equally as important as it
helps us understand how the concept of Justice originated and how it was interpreted throughout
history. In addition to that, this school also helped in the foundation of fundamental rights and basic
human rights in many nations, alongside the concept that reasoning plays a very vital role in the
field of law.

Sociological school of law

“All collective human life is directly or indirectly shaped by law. Law is like
knowledge, an essential and all-pervasive fact of the social condition.”

— Niklas Luhmann

Introduction

In early time, rules and laws are originated from the only custom to govern the society which had
only a social sanction. Then, the supremacy of King and priest came. then, after the revolution and
changes, the balance between the individual interest and welfare of society was realized.

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The main subject matter of sociology is Society. Sociology is the study of society, human behavior,
and social changes. And jurisprudence is the study of law and legal aspect of things. The
Sociological school of Jurisprudence advocates that the Law and society are related to each other.
This school argues that the law is a social phenomenon because it has a major impact on society.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the
Comte and he described Sociology as a positive science of social facts. He said that Society is like an
organism and it could progress when it is guided by Scientific Principles. Thus, he makes great
efforts to use the law as a tool by which human society maintains itself and progresses.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This school
laid more emphasis on the legal perspective of every problem and every change that take place in
society. Law is a social phenomenon and law has some direct or indirect relation to society.
Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was
realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal
development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology. Every
problem or concept has two different aspects. One is sociological view and other is a legal aspect.
For example Sati.

Legal and Sociological aspect of Sati

Sati was the ancient Indian practice of burning the widow on her husband’s funeral pyre.

The legal aspect:

Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under the British
jurisdiction. A ban on Sati was imposed in 1829 in the British territories in India. In today’s time,
the practice of Sati is banned under the Prevention Of Sati Act (1987) which makes it illegal to force
or encourage anyone to commit Sati.

The sociological aspect

In today’s era of escalating feminism and focus on equality and human rights, it is difficult and
amiss to digest the ruthless Hindu practice of Sati. Indeed, the practice is outlawed and illegal in
today’s India.

Reason for the emergence of Sociological School of Jurisprudence

What is Laissez-Faire?

According to the Britannia dictionary, “ Laissez-faire is the policy of minimum governmental

interference in the economic affairs of individuals and society.” [1]

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Laissez-Faire is the unrestricted freedom given to people by the government. It is a governmental
policy in which the government and law will not interfere in the economic matter of people. In the
Laissez-Faire economy, the only role of government and law is to prevent any conflict and coercion
against individuals like theft, fraud etc

The sociological approach to jurisprudence which resulted out of the change in the political shift
from the doctrine of the laissez-faire, the industrial and technological revolution and finally the
historical school bringing into focus the relationship between the law and social welfare State of the
modern century, has attempted to study law as seeking social origin of law and legal institutions,
testing law as a given social phenomenon and lastly judging law by its social utility. [2]

Due to Laissez-Faire, all people are giving more importance to the individual interest and ignored
the general interest or state interest and welfare of the state. The Sociological school came out as a
reaction against the laissez-faire because sociological school advocates the balance between the
welfare of the state and individual interest.

Jurist of the Sociological School of Jurisprudence

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of
jurisprudence. He was of the view that the legal process is somehow influenced by the social
condition of society. He also recognized the importance of history as a means for understanding the
structure of society. And explained the importance of studying the history of society before
formulating the law for that society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a
nation so that they should be in relation to the climate of each country, to the quality of each soul, to
its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen
or shepherd, they should have relation to the degree of liberty which the constitution will bear, to the
religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and
customs.”

Eugen Ehrlich (1862-1922)

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of
law from the sociological perspective. Ehrlich considered society as a main source of the law. And by
society, he means “association of men”.

Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or judicial
decisions but in society itself.”

He argued that society is the main source of law and better source of law than legislation or judicial
decision.

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual working
and not as it stands in the book.
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Theory of Social Engineering

Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which provides
maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the competing
interests in society,” in which applied science is used for resolving individual and social problems.
[3]

Social Engineering is the balancing the conflicting interest of Individual and the state with the help
of law. Law is a body of knowledge with the help of law the large part of Social engineering is
carried on. Law is used to solve the conflicting interest and problems in society.

He mentioned that everybody has its own individual interest and considered it supreme over all
other interest. The objective of the law is to create a balance between the interests of the people. For
Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on the
other side, State put some restriction on this right. And when the conflict arises between Individual
right and State’s restriction, then the law comes to play its part. And solve the conflict between the
interests.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping
of the interests, he put boundaries and divide the kinds of interests.

 Individual Interest

These are claims or demands involved from the standpoint of the individual life which consists of
interest of personality, interest in domestic relations and interest of substance

 Public Interest

These are the claims or desires asserted by the individual from the standpoint of political life which
means every individual in a society has a responsibility towards each other and to make the use of
things which are open to public use. Interest in the preservation of state

 Social Interest

These are the claims or demands in terms of social life which means to fulfill all the needs of society
as a whole for the proper functioning and maintenance of it. Interest in the preservation of general
peace, health, security of transaction’s, preserving social institutions like religion, politics, economic

Jural Postulates by Roscoe Pound

Roscoe Pound mentioned the five Jural Postulate and mentioned that the interest mentioned in these
jural postulates should be protected and nourished.

 Criminal
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An interest of protection from any intentional aggression. For Example, Assault, Wrongful
restraint, Battery, etc.

 Law of Patent

An interest of securing his own created property by his own labour and hard work. E.g. agricultural
land, any music or artistic things.

 Contrac

The interest in making the contract and getting of reasonable remedy or compensation when his
right violate

 Torts

Protection against Defamation and unreasonable injury caused by the negligent act of another
person.

 Strict Liability

Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of
another person. It is the duty of other people to keep his/her things with his/her boundary and
should look after that thing to avoid injury to other people.

Leon Duguit (1859-1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He was greatly
influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which
explain the social cooperation between individuals for their need and existence.

Social Solidarity

Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength,
cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social Solidarity
explain the interdependence of men on his other fellow men. No one can survive without the
depending on other men. Hence the social interdependence and cooperation are very important for
human existence.

The objective of the law is to promote Social solidarity between individuals. And Leon Duguit
considered that law as bad law which does not promote social solidarity.

Further, he also said that every man had the right and duty to promote social solidarity.

For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social
Solidarity.

Sociology of law

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Sociology of law studies sociology from the legal point of view. In India, Sociology of law is a recent
field of inquiry. Indian advocates of Sociological jurisprudence are P.B Gajendragakhar, and
Upendra Baxi views society from the legal point of view.

The Sociology of law is the interdisciplinary approach or sub-discipline of sociology. It views the
society from the legal side. And explains the interdependence of Society and law. Sociology law
explains the interdependence of the law and society. Podgorecki has listed the following functions of
the sociology of law: [4]

(1) The sociology of law aims at grasping law in its working;

(2) it is to provide expert advice for social engineering;

(3) the sociology of law makes an attempt to shape its studies so as to make them useful for practical
applications; and

(4) the sociology of law struggles with reality.

Thus, the sociology of law aims at the understanding of legal and social phenomena, whereas the
main concern of the traditional approach to jurisprudence is to undertake analytical-linguistic
studies.

Conclusion

Sociological School of Jurisprudence studies the relationship between and society. It explains the
interdependence of law and society. One can’t formulate better and effective law without looking
and studying the need and structure of society. For the betterment and harmonious society, we need
better and effective laws.

For Example, After the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape). Rape laws are
amended in India.

Every problem in Indian has two aspects, one is legal and other is Sociological aspect. like, the legal
aspect of Female Infanticide is in 1795, infanticide was declared to be murder by Bengal Regulation
XXI. The British government took steps against the evil of female infanticide and propaganda the
same. And its sociological aspect is that nature designed both sexes for the perpetuation of the
human races. Gender equality and the empowerment of women were considered one of the eight
Millennium Development Goals by the United Nations Population Fund in 2001.

Jurists of Sociological School of Jurisprudence are August Comte, Eugen Ehrlich, Roscoe Pound, and
Duguit. August Comte was of the view that Society is an organism and it could progress when it is
guided by Scientific Principles. While the Eugen Ehrlich argued that the “Society is the main source
of law” and Roscoe Pound compared the lawyers with Engineers. And argued that the objective of
the law is to solve the conflict between the Individual Interest and State
Interest.

Realism school of law

The Realist School of Jurisprudence represents a pivotal shift in legal thinking that emerged in the

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early 20th century. This school of thought challenges conventional notions of law and legal theory by
focusing on the practical application of law in the real world.

Legal Realism, as it is commonly known, contends that the law is not simply a set of abstract rules and
principles but is rather defined by the decisions made by judges. In this comprehensive article, we
delve into the essence of Legal Realism and examine the contributions of some of its most influential
jurists.

Understanding Legal Realism

Legal Realism is a jurisprudential movement that seeks to understand the law as it operates in
practice, emphasising the role of judges and their decisions in shaping legal outcomes.

Unlike traditional legal schools of jurisprudence that view the law as a collection of objective rules
and principles, Legal Realism contends that the law is, in fact, subjective and malleable. It suggests
that judges’ personal experiences, biases and societal influences play a significant role in their
decision-making processes.

Key Features of Realist School of Jurisprudence

The Realistic School of Jurisprudence, often referred to as Legal Realism, is characterised by the
following key attributes:

Law as a Good Reason for a Bad Man

Legal Realists often humorously define law as “a good reason for a bad man.” This phrase
underscores the idea that individuals, particularly those with nefarious intentions, are primarily
concerned with the practical consequences of their actions within the legal system.

In other words, the law serves as a practical guide for individuals to navigate their behaviour
within societal boundaries.

Rejecting the Myth of Objectivity

Legal Realism rejects the notion that the law is objective and impartial. Instead, it acknowledges
that judges’ personal backgrounds, beliefs and experiences inevitably influence their decisions. This
acknowledgement challenges the traditional belief in the neutrality of the legal system.

Focus on Judicial Decision-Making

Legal Realism places a significant emphasis on studying judicial decision-making processes. It seeks
to understand how judges arrive at their verdicts, taking into account factors beyond the mere
application of legal rules.

Movement Rather Than a School

Legal Realism is not a traditional school of thought but rather a movement within jurisprudence. It
encompasses various perspectives and approaches to law.

Pragmatic Approach
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Realism views law as a means to achieve social ends and addresses legal concepts in a manner that
reflects the dynamic nature of society, which changes more rapidly than the law itself.

Divorce of ‘Is’ and ‘Ought’

This approach temporarily separates the descriptive aspect (‘is’) from the prescriptive aspect
(‘ought’) of law to facilitate objective analysis. Ethical considerations are intentionally set aside to
maintain objectivity.

Distrust in Traditional Legal Values

Legal Realism challenges the traditional legal values and concepts, highlighting that they often
describe what courts or common people are doing rather than prescribing how they should behave.

Focus on Law’s Effects

Realism, in jurisprudence, places significant emphasis on evaluating the practical effects of legal
rules and principles.

Notable Jurists of Realist School of Jurisprudence

The Realist School of Jurisprudence boasts a rich array of influential jurists who made substantial
contributions to the development of Legal Realism. Let’s explore some of the key figures in this
movement:

John Chipman Gray (1839-1915)

Often regarded as one of the founding fathers of the Realist movement, Gray was instrumental in
shaping the school’s early principles. Gray believed that the court, rather than the legislature,
constituted the most significant source of law. He argued that judges played a pivotal role in giving
life to the words of statutes.

His work laid the groundwork for a more critical approach to jurisprudence that focused on non-
logical variables affecting judgment, such as judges’ personalities and biases.

Oliver Wendell Holmes, Jr. (1841-1934)

Holmes is renowned for his “bad man’s theory,” which views law from the perspective of potential
wrongdoers. He emphasised that law serves the interests of those who may potentially violate it,
rather than those who follow it obediently.

Holmes separated law from ethics and morality, asserting that understanding the law’s practical
implications required examining it from a realist perspective.

Jerome N. Frank (1889-1957)

Frank categorised Realists into two groups: one skeptical of legal standards ensuring consistency in
the law and the other skeptical of the establishment of facts before trial courts.

He was part of the second group and emphasised the unpredictability of the legal system.

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Frank argued that rigid adherence to precedent and defined rules was misguided and he advocated
for lawmaking that considered the evolving societal context.

Carl N. Llewellyn (1893-1962)

Llewellyn expanded on the Realist approach by considering legislation as a tool for achieving
broader social goals. He argued that the law needed to be examined in its entirety, including its
purpose and impact on society.

Llewellyn introduced the concept that law is essentially a prediction of what the court will do in
specific situations, highlighting the pragmatic nature of legal decisions.

Scandinavian Realism

In addition to American Legal Realism, there is a Scandinavian variant of this jurisprudential

movement. Scandinavian Realism shares some common elements with its American counterpart but
also exhibits distinct features.

Key Figures of Scandinavian Realism

Axel Hagerstorm (1868-1939)

Often considered the founder of Sweden’s Realist movement, Hagerstorm was a vocal critic of the
foundational principles of law. He emphasised the psychological aspect of doing what is right and
believed that individuals fight more effectively when they believe they are fighting for what is just.

Hagerstorm challenged the existence of objective values and viewed contemporary law as
ritualistic, akin to ancient legal systems.

Karl Olivecrona (1897-1980)

Olivecrona’s approach to Realism focused on investigating the nature of law, rather than providing
a precise definition. He rejected the idea of “binding forces” behind the law and stressed the
importance of examining the facts.

Olivecrona believed in exploring the law empirically, without making unwarranted assumptions.

Alf Ross (1899-1976)

Alf Ross, a Danish jurist, explored the moral aspects of law and categorised norms into conduct and
procedure. He raised doubts about the legitimacy of legislation and questioned the application of
social realities to the interpretation of the law.

Ross was concerned with the normative character of law and its implications for legal orders and
the role of courts.

A.V. Lundstedt (1882-1957)

Lundstedt dismissed the notion of justice as a purely abstract concept and advocated for examining
only physical facts in the study of law.

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He mocked concepts like rights and responsibilities, emphasising the consideration of what is best
for society as a whole, rather than notions of justice.

Criticisms of Realist School of Jurisprudence

The Realist School of Jurisprudence has faced criticism on several fronts:

 Underestimation of Legal Principles: Critics argue that Realists tend to underestimate

the importance of legal principles and rules, often viewing law as a puzzle of unrelated
decisions rather than a coherent system.

 Overemphasis on Litigation: While Realists focus on litigation, they may overlook

broader aspects of law that do not come before the courts.

 Attack on Certainty: Realists have criticised legal certainty and the myth of a fully
predictable legal system. Critics argue that a substantial degree of certainty exists in the law.

 Human-Centric Perspective: While acknowledging the role of human factors, Realists

have been criticised for attributing too much influence to a judge’s personality in judicial
determinations.

 Contextual Limitations: The American Realists’ approach is context-specific and may not
be universally applicable, particularly in legal systems where social forces have played a
smaller role in shaping law. Scandinavian Jurists like Olivecrona have proposed more
universally applicable methods.

Contributions of Realist School of Jurisprudence

Despite its criticisms, Realist School of Jurisprudence has made significant contributions to
jurisprudence:

 Emphasis on Pragmatism: Legal Realists introduced a pragmatic approach to law that

emphasises the practical consequences of legal decisions.

 Challenge to Certainty: They challenged the notion of absolute legal certainty,

encouraging a more nuanced understanding of the law’s predictability.

 Comprehensive Examination: Legal Realists advocated for comprehensive examinations

of factors influencing legal decisions, aiming for more informed and fair judgments.

Conclusion

The Realist School of Jurisprudence, with its American and Scandinavian variants, represents a
pivotal movement in legal thought. Legal Realism challenges traditional legal theories by focusing
on the practical implications of law and the role of judges in shaping legal outcomes.

Notable jurists from Realist School of Jurisprudence, such as John Chipman Gray, Oliver Wendell
Holmes, Jr., Jerome N. Frank, Carl N. Llewellyn, Axel Hagerstorm, Karl Olivecrona, Alf Ross and
A.V. Lundstedt, have significantly contributed to the development of Realism, offering a fresh
perspective on the complex interplay between law, society and human nature.
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Legal Realism’s recognition of the subjective elements in the legal system continues to influence
contemporary jurisprudential discourse and our understanding of how the law truly operates in the
real world.

Keelson school of law

Introduction
The concept of the "Pure Theory of Law" was developed by Hans Kelsen, an Austrian jurist, in the
early 1900s. This theory is also referred to as the "Pure Theory of Positive Law" or "Kelsenian
Jurisprudence." Its main goal is to provide a systematic approach to understanding law that is
independent of moral and political considerations.

The theory e�ncompasses several significant ideas:

 Hierarchy of Norms: Kelsen's key concept is that laws follow a hierarchical structure,
resembling a pyramid. At the apex lies the fundamental rule, known as the Grundnorm,
which provides validity to all subordinate laws below it.

 Norms and Rules: Norms and Rules guide our behaviour by informing us of what is
expected or prohibited. According to Kelsen, laws provide directives that dictate our actions
and set boundaries for our conduct.

 Legal Validity: The author distinguishes between the existing law and the ideal law.
According to their argument, a law is considered valid if it conforms to a higher law.

 Separation of Law and Morality: Kelsey argues for the separation of law and morality,
suggesting that laws should be considered independently from moral judgments. His position
emphasizes maintaining a distinction between legal principles and ethical considerations.

 Legal Science: Approaching the study of law in a manner similar to that of natural sciences
is advocated by this individual. This entails embracing an objective and systematic approach
to the subject matter.

 Legal Positivism: Kelsen's theory, known as "legal positivism," specifically examines laws
created by those in positions of authority and does not take into account natural law or
moral considerations.

According to Kelsen, Law is only a normative science and not a natural science. Law is the
systematic character of a legal system consisting of rules (norms). All these rules (norms) arise from
the same basic rule/rules called grundnorm.

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Normative science offers instructions on optimal behaviours and decision-making processes for
individuals, establishments, and communities to reach favourable results; these are often rooted in
moral ideals or philosophical tenets.

Grundnorm
The term "Grundnorm" is a legal concept linked to the ideas of the German philosopher Hans
Kelsen. In simple terms, it's like the most important rule in a legal system. Kelsen believed it's the
starting point for all other rules. It's not based on any other rule and can't be questioned within that
legal system. Instead, it's accepted as the foundation for all the laws. Think of it as the main building
block of a legal system. Kelsen said that for all the other laws to make sense and be valid, people
must recognize and follow this foundational rule. Some legal scholars may not agree with this idea,
and they have their own ways of explaining how legal systems work.

To put it simply, the Grundnorm is like the "ultimate rule" or "ultimate legal principle" that would
exist at the top of a hypothetical hierarchy of norms in a legal system. However, it's important to
emphasize that the Grundnorm is not a real or specific law in any legal system; rather, it's a
theoretical construct used by legal philosophers to illustrate how legal systems are structured.

Examples of Grundnorm
In practical terms, legal systems have their own fundamental or constitutional laws that serve as
foundational norms. For example:

The English legal system is based on parliamentary legislations and judicial precedents. Here the
grundnorm is parliamentary legislations and judicial precedents.

Similarly, if there is a written constitution, then the grund norm is that the constitution must be
obeyed. If there is no written constitution, then the social behaviour is the grundnorm.

In India, the Indian Constitution is the grund norm.

In the United States, the U.S. Constitution is often considered the fundamental norm or Grundnorm
of the legal system. It is the highest law in the land and serves as the foundation upon which all
other laws are based.

In Germany, the Grundgesetz functions as the foundational norm of the legal system. It establishes
the principles and fundamental rights upon which the entire legal order is built.

At the international level, the Universal Declaration of Human Rights can be seen as a foundational
norm that influences the development of human rights laws in various countries.

Advantages of Kelsen's Pure Theory of Law:

 Kelsen's pure law is applicable to all legal systems.

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 It is an improvement of Austin's theory.

 The presence of Constitutional Law could be explained by Kelsen's Theory.

 According to Kelsen, law need not only be Command.

 According tom Kelsen, there is no distinction between private law and public law.

 As per Kelsen's theory, international law is a law.

 As per Kelsen's theory, customs, legislations, and precedents are all sources of law.

 As per Kelsen's theory, Law and State are similar; State is only the outcome of legal order.
So, State and Law are the same.

Criticisms of Kelsen's Pure Theory of Law

Some individuals have expressed their dislike for this theory, arguing that it appears to be detached
from moral and political considerations. They assert that it oversimplifies the complexities of law
and fails to acknowledge how society and politics influence its functioning.

Friedmann criticises Kelsen's theory as inadequate as it does not explain the effect of economics,
psychology and sociology on law.

Allen criticises Kelsen's theory as custom, legislation and precedents are different, co-ordinate and
parallel sources and not in the hierarchy as suggested by Kelsen.

Lauterpacht criticises Kelsen's theory, as a back door entry of Natural Law through the medium of
grundnorm.

Hans Kelsen's Pure Theory of Law, although influential, has faced several criticisms. Some argue
that it's too abstract and disconnected from the real world, ignoring the social and historical context
in which laws operate. Critics also say it lacks consideration for substantive justice, focusing solely
on the structure of legal norms and not the moral content. Kelsen's Grundnorm, a foundational
concept, is criticized for its hypothetical nature and lack of practical evidence.

Additionally, some believe that Kelsen's theory doesn't adequately address enforcement, which is
essential for law's effectiveness in practice. It minimizes the role of judges in interpreting and
applying the law, leading to concerns about their discretion. Kelsen's rejection of natural law
theory, which incorporates moral principles into legal theory, has also been met with criticism.
Lastly, there are concerns that Kelsen's theory is rooted in Western legal traditions and may not be
suitable for understanding non-Western legal systems, showing a potential cultural and historical
bias. While Kelsen's theory has its merits, these criticisms highlight areas where it falls short in
providing a comprehensive understanding of law.

Why is it called 'Pure Theory of Law'?

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Hans Kelsen's theory of law is often called the "pure theory of law" because it aims to study law in a
clean and focused way, without mixing in things like morals or politics. Kelsen wanted to create a
theory that's neutral and scientific, like math or science. He believed that by keeping law separate
from other influences, he could make his theory more precise and rigorous. So, "pure" here means
Kelsen's commitment to analyzing law on its own, without adding in outside factors. This purity is a
big part of what makes his legal approach unique.

Conclusion
In short, the Pure Theory of Law by Hans Kelsen is a way to understand law systematically without
mixing in moral or political ideas. It's based on the idea of a hierarchy of norms, where each law
follows a higher one. But it's also controversial because it leaves out morals and politics. The main
weakness of Kelsen's theory is the Grundnorm which is based on unproved hypothesis.

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

General meaning

 Law is a set of rules created by state institutions which make laws through the authority of
the state. The laws have sanctions which are recognised by the state and enforced by state-
authorised bodies.

 In its judicial sense, 'Law' means a body of rules of conduct, action or behavior of persons,
made and enforced by the state.

 It expresses a rule of human action.

 It is something that touches our lives on a daily basis, it governs what we can and cannot do,
it is used to settle disputes, to punish and to govern the relationships between the parties.

 Laws play a central role in social, political and economic life.

Schools of jurisprudence
Jurisprudence is the study or philosophy of law. It considers the cause and idea of law. Law has an
unpredictable idea. Its comprehension differs from individuals to individuals. Everybody has an
alternate perception of the law.

The following are the five schools of jurisprudence:

1. Analytical school
The major premise of analytical School of jurisprudence is to deal with law as it exists in the

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present form.
Analytical school is known in various names such as:

o The Austinian school since this methodology is set up by John Austin.

o The imperative school since it regards law as the direction (command) of the
sovereign.

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

Truth be told, it was Austin who propounded the theory of positive law, the
establishment of which was laid by Bentham
One of the fuctions of analytical school is, as the name suggest, analysis or
decomposition of law into irreducible elements.

John Austin
Austin is known as the father of English Jurisprudence. According to him,
'Law is a command of sovereign backed by a sanction.'He regards law as the direction
of the politically powerful authority backed by a sanction. This means that Law is
whatever the Law-Maker (the one with the authority to make laws) says and it
supersedes judgements by judges/precedents etc.

He distinguishes law from morality. He divides law into two parts:

 Divine law: Law set by God for men

 Human Law: Laws made by men for men.

Austin accepts 3 kinds of laws:

 Declaratory or Explanatory Laws: They are not command but are

already in existence and are passed only to explain the law which is
already in force.

 Law of Repeal Austin does not treat such laws as commands because
they are in fact the revocation of a command.

 Law of Imperfect Obligation They are not treated as command because

there is No sanction attached to them.

Merits:

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 Simple and clear definition of Law

 Lays down exact boundaries within which jurisprudence has to work.

 Austin's positivists approach further laid down the foundation of English

jurisprudence.

 Has an important and Universal Truth Law is created and enforced by the
State.

Demerits:

 Customs overlooked: In the early times, not the command of any superior, but
customs regulated the conduct of the people. Therefore, customs should also be
included in the study of jurisprudence.

 Permissive character of the law ignored

 No place for judge made law: Nobody, in modern times, will deny that judges
perform a creative function and Austin's definition of law does not include it. ·
Conventions: Conventions of the constitution, which operate imperatively,
though not enforceable by court, shall not be called law, according to Austin's
definition, although they are law and are subject matter of a study in
jurisprudence. Austin does not treat international law as law because it lacks
sanction. Instead, he regards international law as mere positive morality.

 Rules set by private persons: Austin's view that 'positive law' includes within
itself rules set by private persons in pursuance of legal rights is an undue
extension because their nature is very vague and indefinite.

 Sanction is not the only means to induce obedience: According to Austin's view,
it is the sanction alone which induces the man to obey law. Lord Bryce has
summed up the motives as indolence, deference, sympathy, fear and reason that
induces a man to obey law.

 Command over emphasized: In modern progressive democracies law

expression of the general will of the people. Therefore, a command aspect of law
has lost its significance in the present democratic setup. This definition cannot
be applied to a modern democratic country.

 Does not cover international law

 Ignores social factors of law and psychological factors which secure its
obedience

 The interrelationship between law and morality is ignored.

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Bentham
He defined law as:
Law is an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a
state, concerning the conduct to be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be subject to his power.

Bentham supported the economic principle of 'laissez faire' which meant interference of the State in
the economic activities of individuals.

· Bentham propounded the principle of utilitarianism. According to this theory, the right aim of
legislation is the carrying out of the principle utility. Bentham defined utility as the property or
tendency of a thing to prevent some evil or procure some good. According to him, the consequences
of good and evil are respectively 'pleasure and pain'.

Merits

 His constructive thinking and zeal for legal reform heralded a new era of legal
reforms in England

 He gave new directions for law making and legal research.

 In the field of jurisprudence, his definition of law and analysis of legal terms
inspired many jurists

 who improved upon it and laid down the foundations of new schools.

 He gave solutions to problems involving the nature of positive law

Demerits

 According to Friedmann, it suffers from two weaknesses:

At first, in an effort to blend materialism with idealism; Bentham
underestimates the need for individual discretion and flexibility in the
application of law overestimating the power of legislator. Secondly, this theory
fails to balance individual interests with the interests of the community

 The theory is too abstract.

 It fails to recognize complexities of human nature.

 No practical application possible for his theory.

 Pain and pleasure alone cannot be tested to judge the law.

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2. Sociological school

o The Sociological school of Jurisprudence advocates that the Law and society are
related to each other

o Law is social scenery. This school argues that the law is a social phenomenon because
it has a major impact on society. This school laid more emphasis on the legal
perspective of every problem and every change that take place in society.

o Law is a social phenomenon and law has some direct or indirect relation to society.
Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

o According to this school the socio-economic problem of the present time cannot be
solved by means of the existing laws.

o This school is based on logic, not metaphysical entities or divinities.

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

He has given a theory of 'Social engineering' which means a balance between the competing
interests in society. Social means group of individuals forming a society. Engineering means applied
science carried out by engineers to produce finished products, based on continuous experimentation
and experience to get the finished product by means of an instrument or device. He thinks that jurist
should work with a plan and accordingly various interests of society should be protected by law.

The interest has been classified into three categories:

o Private Interests which are as follows:

o Interests of personality Physical integrity, reputation, freedom of violation and

freedom of conscience. For example: law of Torts, law of Contracts, Criminal law.

o Interest of domestic relations Marriage, parents and children, maintenance.

o Interest of substance Inheritance, occupational freedom, property.

o Public Interests are:

o Interest in the preservation of State, Administration of trusts, charitable endowments,

territorial waters, natural environment etc.

o Social Interests

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o Social interests are the claim or demands or desires thought of in terms of social life
and generalized as claims of social groups.

Demerits:

o Classification of interest is not useful. Since the social interests always change withthe
society and to put them into specific order then they will lose their character and
importance.

o This word social engineering is used to indicate the problem that law faces, the
objectives that have to be fulfill and the method which it will adopt for the purpose of
interest.

o No ideal scale of values with reference to interest.

o By the word' engineering' no balance has been made between social needs and
interests. Only this theory simply recognizes or approves it.

o The theory ignores the fact that law evolves and develops in the society according to
social needs and wants.

o The dynamic feature of law is undermined in this theory

o The conflict between social and individual interests is not considered by him.

o Prof. Allen criticized him for focusing on wants and desires to fulfill material welfare
which might be harmful to personal freedom.

Merits

o Has focused on practical implication of law and role of jurists in building a welfare
state.

o Considers working of law rather than its abstract concept.

o Regard law as a social institution which may be improved by human effort and to
discover and effect such improvement.

o Lay stress upon the social ends of law rather than sanctions.

o This theory says that legal precepts be used as guides to socially desirable results.

o His idea of functional law led to the creation of functional school

o His theories gave the most influential exposition of the American sociological
viewpoint.

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Dugit
The theory of Duguit under sociological school is a social solidarity. Social solidarity means the
greatness of society. Duguit said that there are mainly two types of needs of the society:

29. Common Needs

Which are fulfilled by mutual assistance.

30. Adverse Needs.

Which are fulfilled by the exchange of services. No one can live without the help of other. Even a
state cannot exist without the help of other state. One cannot produce So he has to depend upon all
things required for him. others. The dependency is called social solidarity. For this purpose the
division of labor is necessary. Division of labor will fulfill all requirements for the society. This
philosophy or views is called social solidarity.

Merit

o He said to procure and to manufacture necessities of life men depends upon society.
His theory advocates peace and solidarity

o He attacks the myth of State sovereignty and compares the State to any other
organization.

o He also mentions the functions to behave in the society are also dependable upon each
other. The aim is to safeguard interdependence or to fulfil all necessities and till this
end is not achieved aim of the law is not fulfilled

o The end or the result of all human activities and organization is to ensure
interdependence of men which is social solidarity or theory of social fact which means
men should live together as formation of law is very essential for community life.

o He minimizes the functions of the State which leads to a reduction in the role of the
legislator in his understanding.

Demerits

o Duguit was against State sovereignty. He thinks it is the will of the people that who
will govern them. So state is also under a duty to ensure 'social solidarity

o There was no difference between public law and private law because it will elevate
power of State above the rest of the society.

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o Social solidarity is vague because judges will decide whether an 'Act' or 'Rule' is
furthering social solidarity which is very dangerous for the judicial system as judges
have their known limitation. it may lead to judicial despotism

o His law confuses with natural law theories because if law does not further 'social
solidarity' then it is no law at all.

o Though Duguit emphasis of interdependence in society but his theory does not perform
well due to minimum interference of state because in modern times social problems of
modern community can be solved better by state activity

o His theory may be subject to different interpretations and in the end, would serve the
interests and purposes of lawmakers.

o His use 'is' instead of 'ought' confuses the definition of law with natural law theories.

o His theories were inconsistent where one side he was claiming that biological
evolution has structured the state whereas on the other side he was contradicting it by
saying that
State has no personality of its own.

Historical school

o The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861

o Historical School of Jurisprudence describes the origin of law. This school argues that
the law was found not made.

o The Historical School believe that law is made from people according to their changing
needs. It believes that law is an outcome of development of the society because it
originates from the conventions, customs, religious principle, economic needs of the
people. Basic source of historical school is custom.

o A custom is a traditional and widely accepted way of behaving or doing something

that is specific to a particular society, place, or time. Customs are considered superior
to
legislations in this school. The reasons for the emergence of this school are:

 It came as a reaction to the natural school of law.

 It opposes the ideology of the analytical school of jurisprudence.

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Friedrich Carl Van Savigny (1779-1861)
A product of times the germ of which like the germ of State, exists like men as being made for society
and which develops from this germ various forms, according to the environing the influences which
play upon it.

Main points of savingny's theory are:

o That law is a matter of unconscious and organic growth. Therefore, law is found and
made. Law is not universal in its nature. Like language, it varies with people and age.

o Custom not only precedes legislation but it is superior to it. Law should always
conform to the popular consciousness.

o As laws grow into complexity, the common consciousness is represented by lawyers

who

o formulate legal principles. But the lawyers remain only the mouthpiece of popular
consciousness and their work is to shape the law accordingly. Legislation is the last
stage of law-making and, therefore the lawyers or the jurists are more important than
the legislators.

Merits

o This theory is that law is influenced by the culture and character of the people

o Savigny's theory traced the course of the evolution of law in various societies.

o Savigny's theory lays the seeds for the development of sociological and evolutionary

Demerits

o Inconsistency- One side savigny asserted that the origin of law is in the popular
consciousness and on the other hand argued that some of the principles of Roman law
were of universal application.

o Savigny emphasised the national character of law. While advocating national

character of law he entirely rejected the study of German law and took inspiration
from Roman law.

o Volksgeist is not the exclusive source of law- Savigny said that popular consciousness
is main sources of law it is not true. Because some time an alien legal system is
successfully transplanted in another country and sometimes a single personality
greatly influences a legal system that is not a popular consciousness.

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o Customs not always based on popular consciousness Many customs and practices
have been declared illegal. Charles Allens criticized him for emphasizing the idea of
law made by customs as he was of the view that customs are not based on the
consciousness of people but for the powerful ruling class.

o Juristic Pessimism- According to Savigny legislation must accord with popular

consciousness but in modern time it is wrong because today's legislation has much
power to make law.

o Many things unexplained- He does not explained many things which developed by
certain powerful communities that is in India slavery untouchables etc.

o He ignored the judge made law- Judges has played an important and creative role in
the function of making law but Savigny's theory has taken this role very lightly.

George Friedrich Puchta

Puchta was a great jurist as well as student of Savigny his ideas are more logical and improved. He
uses the word 'right' in the place of 'law'. According to him men always livedin unity but people are
different by their behavior and unequal. This brings out the idea of law. Then state comes into
existence. But neither the people nor the state alone is the source of law. All laws come to existence
by Volksgeist. Popular consciousness ties the people in one community like common language and
religion. According to him customary law is the best expression of national spirit or Volksgeist so
custom so custom is superior to legislation.

Merits

o His ideas were more logical and improved than Savigny

o He divided general will from individual will from which conflicts arise.

o His division and description of conflicts between the general will and individual will
made the state, intervention theory logical

o He gave two-fold aspects of human will and the origin of a state which was absent in
Savigny's theory making it rigid.

Demerits

o Ignored the historical aspects of legal development.

o His ideas were not accepted initially due to ambiguity which was later corrected by
him.

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Philosophical school
According to the philosophical school, also known ethical or natural school, legal philosophy must
be based on ethical values so as to motivate people for an upright living. According to this school the
purpose of law is maintain social harmony and to maintain to law and order in society and legal
restrictions can be justified only if they promote the freedom of individuals in the society.

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

This school believes in the law of logic and reason.

Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the law is the
result of human reason and its motivation is to hoist and praise human identity

Grotius

o Founder of international law

o Grotius, Founder of international law, said that a system of natural law may be
derived from the social nature of man.

o He defined Natural law as

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

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

Merits

o emphasized morals to describe righteous conduct in society

o Built a system of natural law that should command universal respect by its inherent
moral worth.

o Emphasizes on reasons and origin of law on basis of morals.

o This system of law has been derived from the social nature of man.

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o Agreement of mankind concerning certain rules of conduct is an indication that those
rules originated in the right reason.

Demerits

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

Realist school

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

sociological approach

o In actual sense, there is no realistic school. It is known as 'realism' that is actually a

movement which consists of thought and works in law.

o It also focuses largely on the evaluations of any parts of law in respect to its effect

o It also creates a sense of distrust in the traditional legal values and also the concepts
designed so far as they appear to be described what either courts or common people
are actually doing.

o Realists have a pragmatic approach towards understanding jurisprudence and thus it

emphasizes the judicial organization more which is responsible for the application of
the law.

o The realist school of law believes that law is real and co-relates law with reality.

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o There are two types of realist school:

 American Realist: the scholars along with learning from there own experiences,
but also observed the judgements and learned from them.

 Scandinavian Realists: in this, the scholars believed only in their own

experience.

John Chipman Grey:

According to Grey,
The Law of the State or of any organized body of men is composed of the rules which the courts, that
is the judicial organ of the body lays down for the determination of legal rights and duties.

John is considered as the father of American Realism.

He, according to him, states that codified laws are immaterial unless they are applied by a judge.
He says that law is basically the judgement that the court passes. He implies that body of written
rules are lifeless orders and they are infused with life when the judge applies it.

Merit

o His theory is relatable to real life

o Gives a chance for own interpretation by people.

o Focuses on 'what law is' and not 'what law ought to be'.

o Observes similar cases in the past as well.

Demerits

o Does not take into account the statute law

o Puts excessive faith on judges.

o Does not consider that the jugdement may include judges personal bias

o This definition is not concerned with the nature of law, rather than its purpose and
ends.

Jerome frank
He is considered one of the most important philosophers of the realist school. He explained by giving
an example of the relationship between the certainties of law in men by describing it in terms of a
father-son relationship. Like a son gets protection from his father similarly a man gets protection
from the law.

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Merits

o He states that it is not proper for lawyers and judges to stick to the myth of legal
certainty in the name of precedents or codification.

o He points out constructive work that every lawyer and judge needs to do.

o He gave an emphasize on importance of lawmaking by evaluating facts of each case

under changed social circumstances.

o His view was to maintain balance and to develop law parallel to advancement in
society.

Demerits

o His approach was not considered useful in terms of the law.

o Some critics criticized him on using the Freudian approach of psychological

development of a child in his theory, calling it the Freudian approach of jurisprudence.

o He exaggerated the human factor in judicial decisions and focused on the roles
lawyers and judges only.

o The realist approach was based on the American system of the judiciary and thus is
not universally applicable.

Immanuel Kant
Law is the sum total of the conditions under which the personal wishes of man can be reconciled
with the personal wishes of another man in accordance with a general law of freedom.

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

He differentiated between ethics and laws according to him ethics relates to man spontaneous acts
whereas laws deal with those acts which the man is compelled to do by the state and society. Ethics
deals with inner life or insight or consciousness of the people whereas laws regulate external
conduct of the person. He said that legislation could be effective only when it represent united will of
the people. According to him justice is relative concept depending on conditions, place, social values

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etc. in which an action takes place. He said that laws must be metaphysical derived from reason in
order to be just.

Merit

 He recognized one natural right of freedom of a man in co-existence with other's freedom in
general law

 His aim was universal law state.

 According to him the function of the state is to safeguard law and be the guardian of the law.

 He states that ethics are the internal consciousness of a person whereas law is the external
conduct of a man.

 Emphasized the united will of people to validate legislation.

Demerits:

 Since his theory entirely based on 'what law ought to be' he forgot to consider the past and
present of the law.

 He denied the concept of natural law which is very important for the existence of laws.

 He theory has given theoretical differences between ethics and laws but there is no practical
application of them.

 He has also not given importance to other sources like customs which are considered to be
oldest source of law.

Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation,
application, and requirement of laws. Jurisprudence is the investigation of theories and methods of
insight in regards to the law. It has viable and instructive esteem.

Unit:-3rd
Sources of Law:

(a) Custom
Introduction

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Customs are the earliest sources of law and form the basis of the English Common Law system as we
see it today. They can be described as cultural practises which have become definite and backed by
obligation or sanction just by virtue of widespread practise and continue presence.

Definitions

John Salmond

“Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of justice and public utility.”

For Salmond, a valid custom has absolute legal authority which as the force of law in itself. He
divides Customs into two:

1. General Custom – A general custom has the force of law throughout the territory of a state.
For example, the Common Law in England.

2. Local Custom – The local custom are those which operate have the force of law in a
particular locality. The authority of a local custom is higher than that of general custom.

C.K. Allen

C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in
society—forces partly of reason and necessity, and partly of suggestion and imitation.”

J.L. Austin

“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance of law
settled by a political superior.”

Austin’s ideas were often seen in contravention to customary law because for him, the political
superior was the only source of law and customs were not ‘real law’. They needed the assent and
command of the Sovereign to be considered law.

Robert Keeton

“Customary law may be defined as those rules of human action established by usage and regarded
as legally binding by those to whom the rules are applicable, which are adopted by the courts and
applied as source of law, because they are generally followed by the political society as a whole, or
by some part of it.”

Origin of Customs

In primitive societies, there was no external authority over people, yet people organized themselves
in cohesive groups with a mechanism for fairness and liberty.

People developed rules and regulations through spontaneous reaction to their circumstances as well
as a coordinated conscious decision to arrive at them.

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Eventually, people started recognizing traditions, practises, rituals which were prevalent in a
certain territory or group, and saw how they formed a systematized approach to social regulation.

In Britain, Jurists and legislators started studying these patterns, recording their prevalence, usage
and applicability. These came to be known as customs, which were then formalized and put into
legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.

Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments.”
Themistes were judicial awards which were dictated to the King by the Greek goddess of justice. He
explained, “Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated
to the judges.

He described the development in distinct steps. These are:

1. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine sanction for their commands. They
were believed to be messengers of God, laying out the law for the people.

2. Developing of Customs

Gradually, as people get into the habit of following the dictates of their rulers, they develop into
customary law, and becomes a part of people’s daily living.

3. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a minority, primarily religious people.
This is possible due to the weakening of the power of the rulers over people. Priests study customs,
recognize patterns, understand their relevance and formalize customs.

4. Codification

The last and final stage is that of codifying these laws. Priests study customs meticulously and put
it on paper. This code is then promoted and spread to newer areas and territories.

T. Holland

According to Holland, “custom is a generally observed course of conduct”.

Holland says that custom originated in the conscious choice by the people of the more convenient of
the two acts.

For Holland, customs grow through imitation. In early political societies the king or the head of the
society did not make laws but administered justice according to the popular notions of right and
wrong, whichever were enshrined in the course of conduct pursued by people- in general. What was

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accepted by the generality of the people and embodied in their customs was deemed to be right and
which was disapproved by them or not embodied in their customs was deemed to be wrong.

Types of Customs

There are two broad categories into which customs can be divided. These are customs without
binding obligation and customs with legally binding obligations.

Customs without binding obligation

These customs are not enforceable by law, but are still prevalent in society and have societal
sanctions attached to them.

For example, every society has some customs about how to dress, how to address elders or how to
conduct marriages etc. These are not legally binding but can still have powerful sanctions attached
to them. For example, if a person comes to a funeral wearing colourful clothes, he will be ostracized
and alienated by others around him.

These customs, although not binding, hold tremendous importance in society and must be followed
uniformly for efficient functioning of society.

Every one of these customs are pursued because of the fear that non-recognition of such customs
may lead them to be socially outcasted. Such customs are non-authoritative as in they are not
mandatory to pursue. Individuals follow them due to the social pressure of society. At the point
when a custom of this sort is abused, society typically responds by demonstrating social dismay or
ostracization; however it has no sanction in the true sense of the term. Such customs can be called as
‘Social Customs’.

Customs with binding obligations

In this classification those customs are discussed which in an objective and stringent sense are
viewed as the particular obligations and commitments of men. Such customs may direct the
commitment of marriage and the upbringing of children,the transmission of property etc.

Such customs don’t relate to the circle of social conventions, outward propriety, or style; rather,
they are worried about the genuine business of society, the work that must be practiced in request to
verify and ensure necessary conditions for community living.

Customs under this category have sanctions which are more stringent than the previous category. If
these customs gain widespread acceptance, they acquire legal character. On violation of these
customs, adequate penalty is incurred by the violator as per the statute that governs the particular
custom.

These can be further divided into Legal Customs and Conventional customs.

Legal Customs

The sanction of a legal custom is certain and absolute. It is negative in its operation, in the sense
that, if the custom is not followed, certain desired consequences would not take place. For example,

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if you do not follow the custom of marriage properly, that marriage will be considered void and any
children born out of that marriage will be considered illegitimate.

Legal custom is operative per se regardless of any agreement of participant parties contrary to the
custom. They are unconditional and absolute in their function and take up the form of law.

They are obligatory rules of conduct on not based on faith or convention.

According to Salmond, Legal Customs have legal obligation in itself or proprio vigore. He divides
legal customs further into General and Local Customs which have been discussed earlier.

Conventional Customs

According to Salmond, ‘A conventional custom is one whose authority is conditional on its

acceptance and incorporation in agreement between the parties to be bound by it.’

A conventional custom or usage is a practice which comes into practise due to it being followed for a
long period of time and arising out of a contract between the parties; it does not have any legal
character in itself. Thus, a usage or conventional custom is an established norm which is legally
enforceable, not because of any legal authority independently possessed by it, but because it has
been expressly or impliedly incorporated in a contract between the parties concerned.

Conventional custom may, again, be divided into two types—General Conventional

Customs and Local Conventional Customs. General Conventional Customs are extensively practiced
throughout a particular territory; whereas Local Conventional Customs are limited to a particular
place or to a particular trade or transaction.

Requisites of a Valid Custom

Reasonability

A custom must be in conformity with basic morality, the prevailing understanding of justice, health
and public policy. If it is not reasonable in its origin or practise, it cannot be considered a valid
custom. For example, Sati was an accepted custom once, but with the modern moral understanding,
it is reprehensible, and therefore it cannot be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality or ethical concerns,
or contain eternal wisdom, it just needs to be relevant to contemporary times, useful and capable of
being legislated on.

Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practise, however
widespread and accepted, if found in violation of any statute of a said territory cannot be
considered a custom.

Certainty

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It must be clear and unambiguous as to what the custom is and how it is practised. A custom can
only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute and
objective in theory and in action.

Consistency

A custom must be consistent with the general principles of Law which form the basis of every law or
statue which exists. These principles form the basis of ideas like Justice, fairness and liberty, and
every custom must be in consonance with these.

Antiquity

It is necessary for the custom to have been followed for time immemorial. The practise must be so
ingrained in society, that legislating it seems like the only natural step. Recent or modern practises
cannot be custom until they become firmly established in society.

Continuity

A custom must not be interrupted or its practise must not be sparse. It needs to be continuing for
time immemorial without any interruption.

Must be peaceful in its practise

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered a
custom.

Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom is operating in, has to be conformed to.

Must be General or Universal

According to Carter,“Custom is effectual only when it is universal or nearly so. In the absence of
unanimity of opinion, custom becomes powerless, or rather does not exist.”

Theories of Customs
Historical Theory

As indicated by this school, custom contains its own legitimacy, since it would not exist at all except
if some profound needs of the general population or some local nature of societal needs offer validity
to it.

The development of law does not depend upon the subjective will of any person. It because of the
knowledge of the communities and civilizations that have existed throughout history.

Custom is achieved from the common conscience of the general population. It springs from an
innate feeling of right. Law has its reality in the general will of the people. Savigny calls it
“Volkgeist”.

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Analytical Theory

Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally
binding force in themselves. Their legal character is always subject to the assent of the Sovereign.
For him, customs were merely reflection of law, and were not ‘real law’. Customs need the
modification and the approval of judges, jurists or rulers for them to have any binding force on
people. This is in consonance with his idea that all law is the ‘Will of the Sovereign”.

Conclusion

Therefore, it can be seen that Customs are a very important source of law, which have their
historical roots in the earliest and most primitive of societies, and still hold relevance. Society is
constantly in the process of establishing newer practices which might in due time turn into usages
or customs.

We depend on customs and are governed by them, knowingly or not. The English Common law can
be interpreted as a formalization of existing customs, and therein lies the importance of having the
right customs in society.

Judicial precedent
Introduction

There are many sources from which we derive what we know to be as law. Law in layman terms is
nothing but a set of rules and regulations that we as a society agree to follow so that we do not
infringe on the rights of others and can safeguard our own rights. The right to exercise one’s right
stops when it infringes upon the right of another. The insecurity that is felt among people once the
concept of property and ownership came in was done away with the help of law that placed three
organs; the legislature to make law, the executive to implement it and the judiciary to adjudicate on
matters. These organs function in tandem and are required to not interfere in the fields that are
carved for another organ. While interference can be natural to hold checks and balances, such
interference cannot be done with any malafide intention.

One of the sources of law are legislations which mean ‘rulemaking’ in Latin. It is one of the primary
sources of law and has a huge ambit with regard to authorizations. Customs form another
important part of the law. These have been carried down from generation to generation and have
been in practice since time immemorial. This kind of inheritance or passing down from generation
to generation is what constitutes a custom. Laws are based upon these customs. Laws are a
reflection of society and this makes it necessary to include the various customs of the parts to protect
the interests of a diverse culture. Judicial precedents based on the principle of stare decisis are also
a source of law as they offer a backbone or support to rely on, in cases with similar facts. Treaties
and conventions on an international level are also used to make law as with increased globalization,
all the countries are required to interact with each other more than before. Justice, equity and good
conscience have always been what law and decisions must be based on. In the absence of any one of
these, the decision will be held to be arbitrary or unconstitutional and eventually struck down.

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Judicial precedents

A precedent is a principle or a rule that was declared or laid down in a previous legal case. It is
binding or advisory on tribunals and courts when a similar case with similar facts arises before it.
These are nothing but previous legal decisions that have been taken by judges in similar cases in
these courts that provide an outline as to what must be held in similar cases that arise before the
court or similar cases that arise in lower courts or similar cases that arise before a lesser bench. A
lesser bench is when the number of judges is lesser than those that decided the case that the new
bench will be basing their decision on. In the 18th century, the Government of India Act, 1935, held
that decisions made in Federal courts and in the Privy Councils would be binding on the courts
during the reign of the British. Since the 18th century, precedents have been a legal characteristic of
the Indian legal system and have helped many judges form decisions and reverse decisions that
later on were found to be arbitrary or mindless.

Types of precedents

1. Declaratory and Original: In declaratory precedents, the mere application of a rule in a

previous legal case is used. Original precedents result in the creation of new laws. Here new
laws are created and applied. An example can be where we considered that the power to
amend the constitution was not restricted till it was decided that limits must be placed on the
same and that all laws in the Ninth Schedule henceforth must also be tested against the basic
structure.

2. Persuasive: Here the precedent is not necessarily needed to be followed. The judge will rely
heavily on this case and take it into consideration. It is not directly considered as a source of
law but is seen as a form of historical precedents. This is usually seen in High Courts, where
the judgements in one High Court can be considered as persuasive precedents in another.
This can be seen when similar cases arise in various High Courts the verdict can be made by
relying upon judgments from other High Courts. They will not be binding but will be
persuasive and will act in favour of the litigating party in whose favour the previous verdicts
have been made.

3. Absolutely authoritative: In these cases, the verdict that has been earlier must
mandatorily be followed by the judge. Even if the judge thinks that it is a wrong judgement
they are required to follow that precedent because of sheer numbers. This is usually seen in
cases where the bench is smaller than the bench that decided upon the precedent that the
judge is relying on. This is also possible in cases of hierarchy, where certain courts have to
rely on decisions made by superior courts.

4. Conditionally authoritative: In this case, the precedents by a general rule are considered
authoritative but can be disregarded in cases of the parties appearing before the Supreme
Court. The decision can also be overturned. An example can be where we considered that the
power to amend the constitution was complete till it was decided that limits must be placed
on the same and that all laws in the Ninth Schedule, henceforth must also be tested against
the basic structure.
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Relevance of judicial precedents

India has a unified judicial system with a single constitution. This means that there is only one
Judiciary that is responsible for the interpretation of the Constitution. The Apex Court is the
ultimate interpreter. This is a part of the basic framework of our Constitution. We are Federal with
a strong Centre, unlike the United States where they follow federalism in the true sense. This was
done with the view of ensuring that the various provinces while having their own State Legislatures
are held together by a strong centre. This was to make sure that riots and protests do not break out
in the newly formed nation that had not only been ruled by the Britishers but had also recently
witnessed a partition that resulted in a refugee crisis as severe as the refugee crisis in Europe after
the Second World War. The person who is best equipped to make a decision is the Supreme Court
and its judges. There arises no question as to who the most effective, appropriate and the only body
must be, while interpreting the law. It is the Supreme Court. In these cases, judicial precedents allow
us to make sure that the law of the land is uniform.

Nature of judicial precedents

 They must be purely constitutive and not abrogative in nature. Hence, while a judicial
decision can make a law it cannot alter it.

 When there is a settled rule of law, the judge must adhere to the same.

 A judge cannot substitute their opinions for the established rule of law and make decisions
based on what they think should be happening, should have happened or could have
happened.

 The function of the precedent is limited to supplying the vacancies of the legal systems by
filling up with new law the gaps that exist.

Importance

The primary function of the Judiciary is the settlement of disputes. Initially, while adjudicating, the
courts are guided by customs and their own sense of justice. Later on, legislations become the main
source of law and the Rule of Law is what judges base their decisions on.

1. Inductive method– A great amount of reliance is placed upon the decisions of the judges in
this method. The judges look into previously decided cases in the same or superior courts
before giving a final judgement, of a similar nature that have already been adjudicated upon
before. They consider general rules and principles from the previous case and apply them on
the cases before them. They then decide accordingly. This is known as the Inductive method.

2. Deductive method– In this method, a great amount of reliance is placed on legislatures

and the enacted statutes. It can be seen as a kind of positivist approach but most judges are
now free to interpret the law in any way they see fit to favour justice, equity and good
conscience. In such a system, the cases are decided on the basis of the enacted legislation and
statute that are codified and the judges decide cases on the basis of these statutes. Here the
judges do not decide on the basis of previously decided cases.

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In the traditional legal system

The importance of the decisions as a source of law was recognized in very early times. Sir Edward
Coke, in the preface of the sixth part of his report, had mentioned that Moses was the first law
reporter. Even in the religious scriptures, it has been stated that the path followed by virtuous men
must be passed on from generation to generation. This is the idea behind precedents. In the
Babylonian empire and the Chinese dynasties, the judicial decisions were considered to be a source
of law.

In the modern legal system

Among the modern legal systems, the Anglo – American law is judge made law. It is also known as
‘Common Law’. It has developed only through judicial decisions. Most branches of law, such as
torts, have been created exclusively by judges. The Constitutional law of England and in specific the
freedom of citizens has been developed through judicial decisions. Not only in municipal but also in
international law precedents are given immense importance. The decisions given by the
International Court of Justice are an important source of international law. These precedents have
been recognized by the International Court of Justice in Hague under Article 38(2)(d) of the Statue
of the International Court of Justice. Article 59 of the same convention expresses that the decisions of
the court only have persuasive value for future cases and therefore hints at the fact that the
International Court of Justice is not bound by its own decisions in deciding factually similar cases in
future. It holds that the decision is only binding upon the parties to the case.

Doctrine of Stare Decisis

Stare decisis is the legal principle which requires judges to abide by and respect the precedents laid
down by similar prior decisions. The Latin maxim, Stare decisis et non quieta movere which means,
“to stand by decisions and not disturb the undisturbed” forms the basis of this legal principle. In the
legal context, judges interpret as meaning to not disturb already settled matters to allow for
continuity. If varying judges gave their opinion in different matters in different courts, having
similar facts would lead to chaos and many parties would feel like their rights have been infringed
and they would feel helpless and like justice has not been served to them. This doctrine is basically a
rule or a requirement that a Court must follow the rules established by a superior court.

Verdicts that need to be seen as having a binding precedent is not valid in most civil law
jurisdictions as it is seen a bare reading of the text as interfering with the right of judges to interpret
the law and the right of the legislature to frame the law. Most such systems, however, recognize the
concept of jurisprudence constante, which argues that even though judges are independent, they
should judge in a predictable and non-chaotic manner. As a concept, discretionary power is one
which allows the decision-maker to apply their own subjective assessment in choosing between
several reasonable options. As there are no technically correct choices in such a determination,
discretionary power is by nature, broad and opens up a whole array of choices. Discretionary
power, especially if capable of effecting far-reaching consequences, should not be given to just one
person. In the rare instance that it is conferred on a single person, there have to be considerable
checks on the person to control the manner in which it is exercised. Therefore, a judges’ right to
interpret law does not preclude the adoption of a small number of selected binding case laws.

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Authority of judicial precedents

There are cases which have questions that are required to be answered on the basis of principles of
law that are in the text of the constitution. Such principles are deduced by way of recognizing what
the material facts of the case are so that a set of principles that can be generally used is formed. The
principle that comes out as a result of such a case is not applicable only to that case, but to cases
which are essentially similar to the decided case in their major facts as well as features. This
principle is called Ratio Decidendi. The issues which do not require the determination of general
principles and are answered on the circumstances of the particular case do not lay down any
principles of general application. These are called Obiter Dictum.

It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has the binding
effect on a precedent. It is for the judge to determine the Ratio Decidendi of the decision and the
method of application of the Ratio Decidendi to the case which he is going to decide. This gives an
opportunity to him to mould the law according to the changed conditions.

Merits and demerits of judicial precedents

There is a reason for the decision of a case, whether we understand it or not. It is necessary that the
same is followed henceforth. Settled disputes must not be argued upon again as it results in a waste
of the court’s time. Precedents are based on customs and are therefore reflective of public opinion. It
gives certainty to the law. While the law lays out certain situations, these precedents account for
those factors that cannot be factored into theory. It guides judges to think practically without
prejudice. Certain important issues may not be raised in precedents that might cost a party the case,
a lower court cannot overturn the verdict of a higher court. Sometimes the decision itself can be
wrong but cannot be overturned.

Conclusion

The use of precedents in the legal system is important for various reasons. Precedents serve as a
reminder and as a base to build on cases.

Legislation as a source of law

Legislation means the process of lawmaking. Legis means law and Latum mean “making”, and as
a whole it means lawmaking. According to Austin, it means the making of law by a supreme or a
sovereign authority which must be followed by people of every stratum of the society. Salmond
defines Legislation as the process of lawmaking by a competent and able authority.

Legislation is the process of lawmaking where a competent authority is given the task of drafting
and enacting the law in a state. It is also said to be a strict concept of lawmaking because there is
only one body which is entrusted with the work of lawmaking and also there is no scope of any
alteration as such because of codified and watertight laws which leave a very minuscule range of
the amendment.

Definition of Legislation

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According to Salmond: “Legislation is that source of law which comprises in the assertion of lawful
standards by a competent specialist.”

According To Austin: “Legislation is the command of the sovereign or the superior authority which
must be followed by the common masses backed by sanctions”.

According to Gray: “Legislation implies the formal expression of the administrative organs of the
general public.”

According to Positivist School: “A run of the mill law is a rule and legislation is the typical source
and form of lawmaking.” Most examples of this school don’t affirm that the courts additionally can
figure law. They don’t concede the case of custom as a wellspring of law. Consequently, they view
just legislation as the form of law.

According to Historical School: “The legislation is the least innovative of the forms of law. The
authoritative motivation behind the legislation is to give the better framework and increasingly
viable the custom which is unexpectedly created by the general population.”

Historical School usually don’t perceive the legislation as a form of law.

Types of Legislation

Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to
authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and
the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted
in the best interests of the citizens.

Some different types of legislation are as follows.

Supreme Legislation

The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In this
manner, some other authorities which are the organ of the state cannot control or check it. It is
considered incomparable as well as lawfully powerful. An established piece of this rule can be found
in Dicey’s book, ‘The Law of the Constitution‘.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent. Even
though there are different constitutional amendments upon its capacity, it isn’t subject to any other
administrative authorities inside the state. Therefore the sovereign jurisdiction of the state can’t be
revoked, cancelled or constrained by some other authoritative organ of the state.

Subordinate Legislation

Subordinate legislation will be legislation by some other authority than the Supreme specialist in the
state. It is made under the powers designated by the Supreme authority. Such legislation owes
its reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and abrogated
anytime by the power of the sovereign authority and therefore, it must offer an approach to
sovereign legislation. Subordinate legislation is liable to parliamentary control. Five unique types of
subordinate legislation can be distinguished. These are as follows.
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Colonial Legislation

The nations which are not autonomous, and are under the control of some other state have no
Supreme capacity to make law. Such countries can be in different classes such as colonies, domains,
secured or trust regions and so forth. The laws made by them are subject to the Supreme legislation
of the state under whose control they are. Therefore it is subordinate legislation.

England has had numerous colonies and territories. The laws made by them for the self-
government are subject to modification, nullification or supersession by the legislation of the British
Parliament. As the colonies are free, accomplished freedom and practically all the British domains
have an unlimited power for legislation, hence sooner rather than later, we might have this class of
subordinate legislation no more in existence.

Executive Legislation

At the point when legislative powers are delegated by the designated official to an executive, it is
called executive legislation. Even though the significant capacity of the official is to execute the
laws and carry on the organisation, he/she is continuously dependent on some subordinate
enactment powers. Today, for all intents and purposes of each law sanctioned by the lawmaking
body contains assignment statements giving law-making powers by the official to the executive in
order to enhance the statutory arrangements.

Judicial Legislation

Powers delegated to the judicial system to make and implement their own laws to maintain
transparency in the judicial system of the country. This will also ensure that there is no involvement
of any other organ of the government in the governance of the judicial system of the state.

Municipal Legislation

Municipal bodies are offered powers to make bye-laws concerning their neighbourhood matters.
Bye-law made by a neighbourhood body works inside its individual area. In India, such municipal
bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on. There is
a move for allowing extensive powers to Panchayats. Along these lines, there is a plausibility of
extension of this sort of subordinate enactment in our nation. Balwant Rai committee appointed by
the Parliament gave some parliamentary reforms needed in the Panchayat system of the country.
The recommendations were later on incorporated in the Constitution by 73rd Amendment.

Autonomous Legislation

At the point when the Supreme authority gives powers upon a gathering of people to administer on
the issues depended to them as a gathering, the law made by the last is known as the autonomous
law and the body is known as a self-ruling body. A railway is an independent body. It makes bye-
laws for the guideline of its organisation, and so on. A college is likewise a self-governing body.
Even some universities in India have been granted the status of autonomous bodies.

Delegated Legislation

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 Delegated(subordinate or subsidiary) Legislation alludes to those laws made by
people or bodies to whom parliament has delegated law-making powers.

 Where Acts are made by Parliament, a Principal Act may cause arrangement for Subsidiary
Legislation to be made and will to indicate who can make laws as such under that Act.

 Delegated Legislation can just exist in connection to an empowering or parent Act.

 Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that
the arrangements of the Act will work effectively. It might be directed by Government
Departments, Local Councils or Courts.

 Guidelines and Statutory Rules are the most widely recognised types of Delegated
Legislation. They are made by the Executive or a Minister which apply to the overall public.
By-laws, and once in a while Ordinances are made by a Local Government Authority which
also applies to the general population who live around there. Principle and Parent Act
regularly depict methodology to be followed in Courts if there is any flaw in a delegated law.

Advantages of Legislation as a Source of Law

Verifiably additionally the legislation has dependably been perceived as a significant wellspring
of law as contrasted and different sources. There are two apparent explanations behind the
legislation is viewed as a standout amongst the most significant sources of law. Right off the bat, it
includes setting down of legitimate principles by the lawmaking bodies which the State perceives as
law.

Besides, it has the power and authority of the State. It is hence said by Dias and Hughes that
conscious law-production by a legitimate power, i.e. the State is called ‘legislation’ which gave
that sovereign is correctly perceived as the supreme power by the courts. Relative Merit of
Legislation over Precedent and customs have been discussed below.

Some main advantages of legislation are as follows.

1. Abrogative Power—It can change or annul old law, which control isn’t controlled by
different sources.

2. Effectiveness—It separates the elements of making law and overseeing it between the
Legislature and the legal executive.

3. Declaration — it gives that principles of law will be known before they are authorised.

4. Reliance on Accidental Legislation — Legislation is independent and emerges out of as

the authoritative source of law it need not hold up until the original case of legislation.

5. Unrivalled in Form — It is predominant in structure, brief, clear, effectively available and

understandable as against case law, which is an increase of sense in a considerable amount
of pointless issue.

Precedent and Legislation

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1. The legislation has its source in the process of law which is basically enacted and enforced by
the State while the precedent has its origin in ancient and historic judicial
pronouncements.

2. Legislation has an authoritative force on courts by the assembly. However, precedents

are made by the courts themselves.

3. Legislation signifies formal declaration of law by the governing body though precedents
are acknowledgement and use of new standards of law by courts in the administration
of equity, justice and good conscience.

4. Legislation is ordered before a case emerges. However, the precedent appears simply after
the case has developed and taken for the choice of the court.

5. Legislation is basically of an exhaustive structure while the extent of legal precedent is

restricted to comparable cases as it were.

6. Legislation is commonly and generally forthcoming while precedent is retrospective in

nature.

7. Legislation is announced or distributed before it is brought into power, on the other hand,
precedent comes into power on the double, i.e. when the choice is articulated.

8. Legislation is finished with the goal of the lawmaking process yet it isn’t so on account of
the precedent. The precedent which incorporates ratio decidendi and obiter dicta are
expected to settle a particular contest on the purpose of law once for all.

9. It isn’t hard for people, in general, to realise the law instituted by lawmaking body yet the
precedent dependent on the case law isn’t effectively known to the general population. Now
and again, the attorneys who manage law are themselves oblivious about the current case-
law. Therefore it makes a precedent of an ambiguous nature.

10. Legislation includes law-production by deductive strategy while case-law is made by

resorting to an inductive technique.

Legislation and Custom

1. The presence of legislation is basically by law, while customary law is wholly accepted in a
particular boundary.

2. Legislation is enacted out of hypothetical standards. However, customary law becomes is

adopted because of its very well and long presence in history.

3. Legislation as a source is indeed a long lasting nature of law, as contrasted to the custom
which is the most established type of law and is followed by a particular sect

4. The legislation is a fundamental characteristic for a present-day society while the

customary law was created in a crude social order.

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5. Legislation is finished, exact, written in the structure and effectively open. However,
customary law is generally unwritten am non-scriptum and is hard to follow.

6. Legislation results out of the deliberations while custom develops inside the general public
in the ordinary course.

Demerits of Legislation

There is no source of law which is perfect and totally complete in its form and sense, some lacunas
and loopholes could be easily found in every source of law which is as follows in the case of
legislation.

1. Unbending nature—Law in the legislation is inflexible though the law in the precedents is
versatile and adaptable.

2. In view of Hypothesis — Legislation, for the most part, continues

on speculative certainties, by considering the existing environment and surrounding in
which the established law is frequently observed to be blemished in its application to the
mind-boggling issues emerging in genuine life though piece-scratches develop out of the
commonsense exigencies and convenience.

3. An excessive amount of Importance to the Wordings—Legislation appends a lot of

significance to its wordings. Thus, if the articulation is faulty, the law in itself gets effectively
turned. In the precedents, the wording matters close to nothing as there is a genuine
introduction which performs separate checks on the applicability of precedent as a source of
law. Same goes with the customary law as well.

Conclusion

Legislation is therefore regarded as the most important source of law in the prevalent times. Hence
it is considered to be the codified form of law which is commanded by the sovereign to the common
masses, and it becomes a predicament situation to regard legislation as the authoritative source of
law.

Legislation is one of the foremost and most important source of law in today’s world. Most countries
in today’s world regard legislation as an essential source of law and follow this system of
lawmaking. Although some lacunae and loopholes are there which exists in the present form but
then too the difficulties such faced are relatively less than that faced from the other sources of law
viz. custom and precedent as legislation as a source of law tries to bring uniformity by avoiding
the ambiguity.

Unit:-4

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Concepts of Law: (a) Ownership and possession

Possession
Jurists have defined possession based on their personal beliefs. It is the most fundamental
interaction between man and things, according to Salmond. However, Henry Maine defined it as
“interaction with an object that includes the exclusion of other people from enjoying it.” A man is
considered to own a thing over which he has seeming control or over which he has apparent
authority to exclude others, according to Federick Pollock.

In B. Gangadhar v. Ramalingam (1995) 5 SCC 238, the Indian Supreme Court elaborated on the
notion of possession. The objective realization of ownership is possession. It is both the de facto
statement of a claim to a specific piece of property and the de facto counterpart of ownership.
Possession of a right, in contrast to the de jure connection of ownership, is the de facto relationship
of ongoing exercise and enjoyment. The actual exercise of a claim to a specific piece of property is
known as possession. It is the most typical form in which claims are made. It is the outward form in
which claims are most commonly manifested.

Elements of possession

Legal possession, according to Holland, comprises two fundamental elements:

1. Corpus

2. Animus

Corpus Possessionis

Corpus denotes two things:

1. a) the possessor’s physical relationship to the res or object; and

2. b) the possessor’s relationship to the rest of the world.

The first point highlights that a person must have some physical touch with whatever he owns to
have a reasonable expectation that others will not interfere with it, i.e. that others will not interfere
with the possessor’s right to use or enjoy that object. This guarantee of non-interference can be
obtained in a variety of ways:

The physical power of the possessor

The possessor’s physical power over the object in his possession works as an assurance that the
thing will be used. It’s also a guarantee that others won’t interfere with his rights. To prevent others
from interfering with his lawful ownership, the person in possession typically utilizes walls, gates,
doors, and locks.

Personal presence of the possessor

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In many cases, the possessor’s sheer physical presence is enough to keep ownership, even if he lacks
the physical power to fight intervention. For example, a penny in a child’s hand suffices to indicate
his ownership of the currency, although that he lacks the physical capability to do so.

Secrecy

It is an efficient method of avoiding external influence and keeping an object in one’s possession
secure if a person maintains it in a hidden area.

Wrongful ownership is rarely seen favourably in modern cultures, thus respect for a legitimate
claim prevents others from interfering with the possessor’s lawful possession.

The protection afforded by the possession of other things

Possession of one object can sometimes lead to possession of additional items that are related to or
complementary to it. As a result, owning land entitles you to own everything is on or under it.
However, as in the case of South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44, the
situation in this regard is not entirely clear.

The appearance of the Animus Domini is another indicator of possession security. The claim’s
visibility is another factor in the factual security of its enjoyment. As a result, publicly utilizing
something implies a prima facie rightmindedness in its ownership.

Animus Possidendi

Possession does not imply mere juxtaposition. It must imply the possibility of bodily control, as well
as a desire to exert such power. Animism is the mental component of possession.

The Classical Roman jurists acknowledged two levels of authority over a possessed thing, the lesser
of which were referred to as detention and the highest as possession, properly so-called.

In the context of the factor of animus in legal possession, the following points should be taken into
account:

1. R v. Hudson (1943) The urge to acquire does not have to be righteous, and it might even be
deliberately wicked. The ownership of stolen goods by a criminal is no less genuine than the
possession of stolen goods by the rightful owner.

2. The possessor must have sole ownership of the object in his possession. That is, he must intend
to keep others from using and enjoying the item. However, the exclusion does not have to be
complete.

3. The animus does not have to be accompanied by a claim or an intention to utilize the items as
owner. In the event of a promise, the pledgee has ownership of the pledged items, even if he
simply wants to keep them in custody as a security to guarantee that his obligation is paid.

4. The possessor’s animus does not have to be his or her own. A servant, agent, trustee, or
bailee, for example, does not maintain goods in his possession for his personal use, but rather
for the benefit of another person.

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5. The animus could not be particular; instead, it could be broad. For example, a guy who has
caught fish in his net has ownership of all of them, even though he has no idea how many
there are. Similarly, a person is assumed to own all of the books in his library, even if he is
unaware of the existence of any of them.

6. The animus may not be specific instead it may be merely general. For instance, a person who
has caught fish in his net has possession of all of them although he does not know their exact
numbers. Likewise, a person is deemed to have owned all the books in his library although he
may not even know about the existence of some of them.

It is important to note that when a person owns a receptacle, such as a box, cabinet, or envelope, he
also owns the contents of that receptacle.

Savigny theory

Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing that possession
consists of two essential elements:

1. Corpus Possession

2. Animus Domini

 By corpus, he meant effective physical control over the object, i.e., immediate physical power
to prevent the owner from being harmed by any outside agent.

 Animus Domini (mental element of possession)-Domini is derived from the word dominium.
It is the result of Roman jurisprudence that leads to the concept of ownership.

 According to Savigny, Animus Domini is a mental aspect of possession, which means that the
court will think that the item has a right of full ownership.

 We utilize Animus Domini with the deliberate goal of holding the thing as if we are the
owners, which includes excluding others’ influence.

 There can be no possession without the mental aspect of animus. With animus Domini,
Savigny has strengthened the right of possession.

 Animus Domini, which means “you are the complete owner of the item” according to
Savigny, should be held with this belief.

 In terms of possession, Animus Domini is more powerful than Animus Possidendi. For
example, a courier boy is in possession, even though he does not intend to keep it;
nonetheless, he is in possession for the time being.

 According to him, possession protection is a subset of personal protection, and just as any act
of violence against a person is illegal, so is any act that disrupts possession through
deception.

Criticism

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1. Savigny was incorrect in his assumption that possession cannot be obtained without corpus
and animus, and that possession is lost when one or both of these parts are gone.

2. In practice, we find that possession persists even if one of the parts is gone, and in some cases
even when both elements are missing.

3. Savigny has overlooked the fact that, even if both conditions are present, the law does not
safeguard a possession obtained illegally. As a result, a thief of a stolen item is not protected
by the law.

Salmond

Salmond defines animus possidendi as the act of excluding others’ rights. He was primarily
concerned with two issues:

1. The desire to assert one’s legal rights

2. Ignore other people’s power.

 According to Salmond, Animus Possidendi must be employed to hold the item as owner, and
the right must be powerful such that we may exclude the authority of others.

 In modern jurisprudence, Salmond’s Animus Possidendi is a little weaker than Savigny’s and
more logical.

 The Savigny right is far stronger than the only right of possession.

 Animus possidendi is a modified form of Savigny’s thesis, but in this instance, he just wants to
enjoy his (owner’s) property, which is why he is excluding others.

 According to Salmond, there are two forms of possession:

1. Possession-in-fact: This refers to physical possession in which you are unsure whether or not
you are lawfully in possession.

2. Possession-in-law: If you have possession in fact-in-law, corpus possession, and animus

possidendi, which are Salmond’s aspects of possession, the people who are claiming have the
most.

According to Salmond, a corpus possessionist has two sorts of relationships:

1) The relationship with the object on which possession is claimed, and

2) Relationship with other people who are not included

Salmond defines possession as the continual exercise of a claim to exclusive use of it. The act of
asserting a claim entails two steps:

1. a) Corpus possessionis

2. b) Animus possidendi

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Here he emphasized on intention to exclude others and use the property. In the case of Bridges v.
Hawkesworth (1851) 21 LJ QB 75, He referred it by saying that the court had correctly decided that
the shopkeeper had no intention of excluding other people from the bundle of notes because he was
unaware of its existence at his shop and thus had no amicus, and thus the finder of the bundle had
possession of it.

Ihering’s theory

 He is a scholar of sociological school.

 Ihering’s theory of possession looks to be more practical and realistic.

 He claims that the mental aspect he described isn’t as dominant as Savigny’s and isn’t as
well-established as Salmond’s.

 The most width mental element is of Ihering. He says that the purpose of the mental element
is only to support physical possession- he represents amicus as a supporting element.

 According to Ihering, in the vast majority of situations, the person who possesses the
property is the owner, and possession is assigned to them as an event of ownership; there are
relatively few cases where the owner’s purpose is demonstrated.

 He employs intelligent awareness-amicus simply means “knowledge of the circumstance”–

and possession is the ingredient that demonstrates nine points of ownership.

 He used a sociological method to describe the notion of possession in his theory, taking an
objective perspective.

 Ihering used a more pragmatic view, not requiring the presence of amicus as a condition of
possession. He didn’t think of amicus as anything more than a complement to possession.

 Ihering contended that possession is ownership on the defensive. A person who is, in reality
exercising ownership must be protected and not have to prove title against someone who is in
unlawful possession.

Criticism

Although Ihering’s theory of possession is more acceptable than Savigny’s, it is not without flaws.

1. Because Ihering examined the idea of possession solely in the context of Roman possessory
interdicts, he is unable to explain why the law refused to provide ‘possessory rights’ to those
who were ineffective bodily control of the possessed object.

2. The Ihering hypothesis fails to explain possession in cases where the possessor’s right to
possess an item is recognized and protected by law notwithstanding the absence of both
corpus and animus.

Ownership

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Ownership has been defined in a variety of ways by jurists. They all agree, however, that ownership
is the most comprehensive or highest right that can be exercised over something. According to
Hibbert, ownership encompasses four different types of rights: –

1. The right to utilize something

2. The right to prevent others from utilizing the item

3. The authority to destroy it

Ownership is described as a “set of rights to use and enjoy the property, including the right to
transmit it to others,” according to Black’s Law Dictionary.

As a result, ownership is the legal acknowledgement of a claim to a specific piece of property. As a

result, Hibbert proposes that no one can have absolute ownership of land since it cannot be
destroyed. It is only possible to have an estate in it. An estate is a person’s legal interest in property
that is measured in time and entitles the party to utilize the land indefinitely.

Austin’s definition of ownership

 According to Austin, ownership is a more powerful right than possession, and it is an

absolute right.

 Ownership consists of the following elements:

– If we possess a piece of property, we can certainly make use of it.

– We have complete freedom to dispose of the property.

– That property’s right is for an indefinite period.

– Available in rem against the right.

 According to Austin, ownership is “a right that exists against everyone subject to the law
granting the ability to put things to indefinite users.”

 He goes on to argue that ownership is a right that is limitless in terms of duration, unfettered
in terms of use, and unrestricted in terms of disposal.

 Being the owner also – you cannot dispose of the property in any way, it should be disposed
of properly.

 Unlimited duration: Privy Purse Case (1970)

When British India gained independence, we were given India in two parts: India and Pakistan,
with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave all the properties-purse (Royal
Wajeefa). Slowly, the entire zamindari idea vanished. As a result, it’s impossible to say how long the
property will belong to the true owner. As per acquisition law, the property is taken in control of
law and they give the compensation to the owners which end the ownership and this is always done

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in the public interest (sociological theory can be applied as collective social interest overrides an
individual interest).

 Indefinite User: This implies that the owner of a thing is free to use or even misuse it in any
manner he likes. The use of the word ‘indefinite’ has a special significance because the use of
land by the owner can be restricted by agreements or the operation of law.

Criticism

Austin’s definition of ownership has been criticized by many writers. They argue that it is fallacious
to think that ownership is a single right, but it is a bundle of rights including the right of use and
enjoyment. Even if an owner relinquishes some of the rights that come with ownership, he retains
ownership of the remainder.

For example, in the event of a mortgage, the landowner retains ownership of the mortgaged
property even though he has surrendered a right.

Modern definition

All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless duration, shall be carried
out in line with the law.

Case laws

Merry v. Green (1847) 7 M & W 623

Facts

In this case, the plaintiff purchased a table in an auction and found the purse in one of its drawers.
Subsequently, he discovered that there was some money in the secret drawer belonging to the
vendor but he appropriated the same.

Issue

Whose purse was it? Whether the plaintiff will take it or has the right to keep it?

It was believed that it was not of the plaintiff but the seller because during the process of transfer the
element of intention for that purse was missing. The intention to sell that purse was not of the seller
and the buying of that purse was not of the purchaser.

Held

The court held him guilty of larceny (theft) because the purchaser was ignorant about the existence
of money and the secret drawer hence he cannot be said to have possession concerning that money
and could not intend to possess the contents of the secret drawer until he found it.

South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING CASE]

Facts

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In this case, the plaintiff company owned a pond upon their land. The company employed the
defendant to clean the pond. During the cleaning operation, the defendant found gold rings at the
bottom of the pond.

Held

The court held that the company had the first possession of the rings by their being the owner of the
pond and hence the defendant acquired no title.

Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE]

The doctrine of finder and keeper was brought in this case.

Facts

A person found a bundle of notes from the stairs of a shop and gave it to the shopkeeper and says to
give it to the person to whom it belongs (all administrations were used but couldn’t found the real
owner) and the shopkeeper keeps it and the person who found it filed a case on the shopkeeper.

Issue

To whom the bundle of notes belongs?

The doctrine of res nullis was applied- The doctrine of finder keeper the person who first found it
will keep it.

The County court applied this doctrine in South Stafford Shiri Water Case. This case was appealed
on the divisional bench and Rod Ressel reserved the judgment and said if you appoint a carpenter to
open the cupboard or box, the matter in the box will not be of the carpenter and states that it will be
of the plaintiff. Here the doctrine of finder keeper will not apply.

Hannah v. Peel (1945) 1 KB 509

In this case, the plaintiff was a soldier and he was asked to stay in a house and he found a brooch
from there. Defendant filed a suit against the soldier but the brooch was not given to the owner as he
did not take the house in physical possession and the brooch was found on the floor.

In this case, two things were considered:

1. Corpus element was never in favor of the owner of the house.

2. And the way the brooch was found the doctrine of res nullis was applicable.

Difference between possession and ownership

According to Ihering

Possession is a de-facto exercise of the claim and ownership is the de-jure recognition of the claim.

According to Salmond

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A person is the owner of a thing when his claim receives protection and recognition from the law but
possession may be exercised and realized without such recognition or protection from the law.

The owner is the only one whose claim(right) is protected and recognized by law.

Sometimes there is illegal possession like mesne profit (the person has to pay it back with interest).
Possession may not be protected and recognized by law.

According to Dr. Asthana

Ownership is the soul and possession are the body and the existence of the body is necessary for the
realization of the soul.

Conclusion

Most people conflate the phrases “ownership” and “possession” and use them interchangeably.
However, in the legal world, both of these words have unique legal meanings. De jure
acknowledgement of a claim to a particular property is known as ownership. The objective
realization of ownership is possession. It is the actual exercise of a claim to a specific piece of
property. In contrast to the de jure relationship of ownership, possession of a right is the de facto
relationship of continued exercise and enjoyment.

Rights and duties:-

INTRODUCTION

Often called the philosophy of law, jurisprudence explores the complex network of ideas, beliefs, and
principles that form the foundation of the legal frameworks that govern our communities.
Fundamentally, jurisprudence aims to disentangle the concepts of rights and obligations that form
the basis of our moral and legal systems.

Jurisprudence is the intellectual exploration of law’s nature, purpose, and limitations. It grapples
with questions about what laws should be, how they are justified, and their impact on individuals
and societies.

Understanding the complexities of rights and obligations is critical for understanding the dynamics
of human relationships and government. It affects our expectations of others and serves as the
ethical and legal underpinning for just societies. In this article, we will explore the domains of
jurisprudence, discussing the meaning, definitions, and interplay of rights and obligations in the
complex structure of human existence and the rule of law.

RIGHTS UNDER JURISPRUDENCE

Rights are fundamental to the study of jurisprudence and law. They are the pillars upon which legal
systems and ethical principles are built. Here, we explore the various types of rights and their
significance

 Natural Rights:

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 Natural rights are inherent, universal, and inalienable rights that people possess by
virtue of their humanity. They are not contingent on any legal or social constructs.

 Theorists: John Locke, Thomas Hobbes, and Jean-Jacques Rousseau are among the
philosophers who have advocated for natural rights. Locke, for instance, asserted the
existence of natural rights to life, liberty, and property in his “Two Treatises of
Government.”

 Legal Rights:

 Legal rights are rights recognized and protected by a specific legal system or
government. They are contingent on the laws of a particular society.

 Theorists: Legal positivists like H.L.A. Hart argue that legal rights derive their
legitimacy from established legal systems. Legal rights may include the right to a fair
trial, freedom of speech, and property rights.

 Human Rights:

 Human rights are universal rights inherent to all individuals, irrespective of their
nationality or legal system. They are protected by international agreements and
conventions.

 The Universal Declaration of Human Rights, adopted by the United Nations in 1948, is
a pivotal document outlining human rights. Eleanor Roosevelt played a crucial role in
the creation of this declaration.

 Positive and Negative Rights:

 Positive rights entail an obligation to provide or facilitate something to individuals,

such as the right to education, healthcare, or housing. The state or institutions are
responsible for ensuring these rights.

 Negative rights, on the other hand, involve the freedom from interference or coercion
by others. The right to freedom of speech and freedom from unwarranted search and
seizure are examples.

DUTIES UNDER JURISPRUDENCE

 Legal Duties:

 Legal duties are obligations that individuals or entities are legally required to fulfil as
stipulated by a specific legal system. They are enforceable and can lead to legal
consequences if not obeyed.

 Legal duties are typically formulated and enforced by the state or governing
authority, and they are rooted in the legal positivist tradition, as espoused by legal
philosophers like H.L.A. Hart. Legal positivism emphasizes the separation of law from
moral or ethical considerations.

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 Moral Duties:

 Moral duties, in contrast to legal duties, are obligations based on ethical or moral
principles. These duties may not be legally enforceable but are believed to be
intrinsically right or good.

 Philosophers like Immanuel Kant have made significant contributions to the

understanding of moral duties. Kant’s deontological ethics, for instance, stresses the
moral duty to act in accordance with universal principles, such as the “categorical
imperative.”

 Enforceability of Duties:

 Enforceability pertains to the extent to which duties can be legally compelled. Legal
duties are inherently enforceable through the legal system, often involving sanctions
or penalties for non-compliance.

 The question of enforceability is deeply connected to legal theory and the authority of
the state. The work of theorists like John Austin, who emphasized the coercive power of
law, is relevant in understanding enforceability.

 Ethical Implications of Duties:

 Duties have ethical implications, as they are closely tied to questions of morality and
ethical conduct. The ethical dimension of duties involves considerations of what is
right, just, and fair.

 Virtue ethicists like Aristotle have explored the ethical implications of duties. Aristotle’s
virtue ethics emphasizes the development of virtuous character and the fulfilment of
moral duties as integral to leading a good life.

THE INTERPLAY BETWEEN RIGHTS AND DUTIES

The interplay between rights and duties is a fundamental and intricate aspect of jurisprudence.
Rights confer entitlements and freedoms upon individuals, but these entitlements often imply
corresponding duties. This reciprocal relationship is the cornerstone of a just and orderly society.

Rights such as free speech imply the need to respect the rights of others and to refrain from damage
or discrimination. Similarly, duties, such as the need to provide for one’s family, pertain to the right
to opportunities and assets for personal and family well-being. Balancing conflicting rights,
prioritizing them in various contexts, and defining the boundaries of enforceable duties are complex
challenges. Jurisprudence plays a crucial role in deciphering this intricate interplay, contributing to
the ongoing evolution of legal and ethical systems.

JURISPRUDENTIAL THEORY ON RIGHTS AND DUTIES

Jurisprudential theories provide different perspectives on the nature, foundation, and interplay of
rights and duties within legal systems.

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 Natural Law Theory:

 Natural law theory posits that there are moral principles that transcend human-made
laws. These principles are discovered through reason and are considered the
foundation of all just laws. In this view, rights and duties derive from inherent,
objective moral principles.

 St. Thomas Aquinas is a prominent figure associated with natural law theory. His
work, “Summa Theologica,” laid the groundwork for this theory, emphasizing the
connection between moral and legal principles.

 Legal Positivism:

 In contrast to natural law theory, legal positivism holds that laws are the result of
human choice and are not inherently moral or immoral. The legal system determines
rights and obligations, and their validity is dependent on the supremacy of that
framework.

 John Austin and H.L.A. Hart are key proponents of legal positivism. Austin’s “The
Province of Jurisprudence Determined” emphasized the separation of law from moral
judgments, while Hart refined this theory by introducing the concept of secondary
rules that underlie legal systems.

 Legal Realism:

 Legal realism is a theory that emphasizes the pragmatic and empirical aspects of law.
It argues that rights and duties are not solely determined by formal legal rules but are
influenced by the discretion of judges, social context, and the practical consequences of
legal decisions.

 Oliver Wendell Holmes Jr. and Benjamin N. Cardozo are often associated with legal
realism. Holmes’ essay “The Path of the Law” highlighted the role of judges’ subjective
judgment in legal decisions.

 Contemporary Perspectives on Jurisprudence:

 Contemporary jurisprudential perspectives encompass a wide range of theories and

ideas, reflecting the evolving nature of legal philosophy in the modern world. These
perspectives can include critical legal studies, feminist jurisprudence, and postmodern
jurisprudence.

 Notable contemporary theorists and scholars vary depending on the specific

perspective. For example, Martha Nussbaum is known for her contributions to
capabilities theory, a contemporary approach that explores the intersection of ethics,
law, and human capabilities.

SUGGESTIONS

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1. The field of jurisprudence is dynamic and ever-evolving. To gain a deeper understanding of
rights and duties, remain curious and open to exploring different theories and perspectives.
Read widely, engage in discussions, and follow contemporary legal developments.

2. Rights and duties are not merely abstract ideas but have real-world implications. As a
responsible citizen, critically reflect on your own rights and corresponding duties within your
community and society.

CONCLUSION

The extensive structure of rights and obligations found in jurisprudence illustrates the very
complicated philosophical and practical issues that are present in the legal system. These
fundamental concepts are not only pivotal for maintaining societal order but also serve as a moral
compass. Jurisprudential theories, from the enduring natural law theory to the pragmatic legal
realism and contemporary perspectives, showcase the ever-evolving nature of legal philosophy.

The interplay between rights and duties, balanced and enforced by the legal system, remains a
crucial component of human society, influencing ethical standards, governance, and the ongoing
pursuit of justice in our complex and dynamic world.

Personalities
ABSTRACT

The jurisprudence theories on juristic person had been established since the early Roman law to
justify the existence of legal person other than the human. The State, religious bodies and education
institutions had long been recognized as having legal entity distinct from the members[1]. this
article explores the personality attributed to various institutions apart from human beings, thus
holding them accountable for their acts and also realize their rights under various subject matters.

KEYWORDS

Legal personality, individuality, rights, duties, liability, accountability, corporation, unborn person,
dead person, state, idols, natural person.

INTRODUCTION

Laws are laid down in a society to regulate the conduct of individuals in the society. When
individuals live together in a community, they have certain rights and duties towards each other,
which are controlled by the law prevalent in the society. Acts which interfere adversely with the
rights of others are termed unlawful and law imposes liability on such acts, the enforcement of
which is ensured through legal sanctions[2]. At the outset, rights and duties look the same for
everyone but when we take a closer look, we notice that rights and duties differ at various levels
based on the entities they are dealing with[3]. The concept of legal personality becomes important in
jurisprudence because there cannot be rights and duties without a person.

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In general terms, ‘person’ is the bearer or carrier of rights. He is also obliged to perform certain
duties in a society. Individuals are subject matters of rights and duties, but law also recognises
certain groups of persons or of property which are also capable of being subject matter of rights
and duties by conferring artificial personality to them.

In the legal scenario therefore, there are two types of persons which law recognises- natural and
artificial. The first category refers to human beings whereas latter refers to non-human entities.

DEFINITION OF ‘LEGAL PERSON’

This term has been defined by jurists in different ways. The use of term personality is often limited
to human beings alone as they are considered to be the only subject matter of rights and duties.
However, it is to be noted that the term has a much wider ambit and includes within it gods, angels,
idols[4], corporations[5] etc.

The German jurist Zitelmana defined legal person in the following words, ‘personality is the legal
capacity of will, the bodiliness of men for their personality a wholly irrelevant attribute’.

According to Salmond – “A person is any being whom the law regards as capable of rights and
bound by legal [Link] being that is so capable is a person whether human being or not and
nothing that is not capable is a person even though he be a man[6]”.

Gray defines a person as entity to which rights and duties may be attributed.

According to [Link], legal personality is a medium through which some such units are created
in whom rights can be vested[7].

A juristic person is therefore not constrained to human beings alone. It may be any other subject
matter to which rights, liabilities and duties can be attached. Law confers them the capacity of a
person and hence they are called ‘legal persons’. a legal personality is a prerequisite to legal
capacity, it is a prerequisite for international organizations to be able to sign international treaties
in its own name[8].

NATURE OF LEGAL PERSONALITY

A legal person has two essential elements

– Corpus- it is the body into which law infuses a personality i.e., rights, liabilities and obligations.

– Animus- It is the personality or will of the person.

Legal personality is a creation of the law. Such recognized entities are capable of entering into legal
relationships. While a natural person acquires legal personality naturally by being born, legal
persons are artificial creations. Law attributes such creations a human persona which makes them
dutiful and accountable. They are treated in the same way as human beings for legal purposes. A
legal person has a real existence but its personality is fictitious, because such a thing does not exist
in fact but which deemed to exist in the eyes of law[9].

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LEGAL STATUS OF UNBORN PERSON
In general notion a person is a human being who is or was in existence out in the physical world.
They are inferred to have rights, liabilities and duties. However, over a period of time laws around
the world have recognized the rights, liabilities and duties of non-human entities as they perform
functions that raise questions of accountability.

But what perplexed the legal system was the status of unborn children. They are humans, but not
present in the outer world and hence technically not a person. Questions regarding their rights
stirred discussions.

Law now attributes legal status to unborn children. By legal fiction, a child in the mother’s womb is
treated as already born and can be treated as a person for a number of purposes. Pre-natal
existence of a child as a legal person is also recognized for the purposes of civil action. This means a
child is entitled to recover damages for injuries caused to him while he was a foetus inside the womb
of mother, after he is born. In the landmark case of Montreal Tramways Co. V. Leveille[10], the
Canadian Court granted damages to a female infant for the deformity caused to her while in
mother’s womb.

The notions on this matter differ across various legal systems. In a similar circumstance as
mentioned above, in the case of Walker v. Great North Railway Company[11], an Irish Court denied
damages to an infant for injuries suffered at pre-natal stages by holding that the company is not
duty bound to person whose existence was unknown to them.

In the case of Eliot v. Lord Joicey (1935) AC 209[12], it was held that ownership may be vested in a
child in mother’s womb (en ventre sa mere) and such a child constitutes life for the purpose of the
rule against perpetuity. For example- Sec 99(i) of the Indian Succession Act 1925 provides: All
words expressive of relationship apply to child in the womb who is afterwards born alive[13].

The rights conferred on unborn children are contingent upon his taking birth alive, when they are
transformed into vested rights. The Transfer of Property Act 1882 grants protection to property
made in favour of unborn persons. Its object is to protect the property for too long a period from the
possibility of alienation by their owners being unborn persons[14].

In Criminal Procedure Code 1973, Sec 416 states that in case any woman who is sentenced to death
is found pregnant, an order to postpone the execution must be passed by the High Court, or it deems
it fit, the execution can be reduced to life imprisonment. This is because our legal system recognises
the right to full development of a child. Similar provisions exist in English law under the Sentence of
Death (Expectant Mothers) Act 1931.

LEGAL STATUS OF DEAD PERSON

The general theory is that the personality of person commences with his birth and concludes with
his death. Hence dead people are not technically ‘persons’ in the eyes of law as they no longer hold
any duties or rights.

Salmond points out three things in respect of which anxieties of living men extend beyond the period
their death[15]. The law ensures protection to the following-

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A dead man’s body

Dead man’s reputation

Dead man’s estate.

Although the dead man’s corpse is the property of no one, the law seeks to ensure a proper
burial[16] or cremation[17]. article 130 of the fourth Geneva Convention (International
Humanitarian Law) is titled as “Burial Cremation” and it states that the dead bodies must be
honourably buried, if possible according to their religion and that their graves are always
respected, properly maintained and marked in a way that they can always be recognized[18].

The Supreme Court of India in the case of Ashray Adhikar Abhiyan v. Union of India held that even
a homeless person is entitled to a decent burial as per his religious faith. Maintenance of basic
human dignity must be extended even at the event of death.

The Indian Penal Code, 1860, through its provisions grants protection to the rights and dignity of
corpses. Sec.297 criminalizes trespassing on burial place with the intention of hurting any person or
religion.

Sec. 404 provides punishment to any person who dishonestly misappropriates property possessed
by deceased person at the time of his death.

In India, the criminal law under Sec.499 of IPC, has held that any imputation that damages the
reputation of a deceased person, had he been alive during that time, or is intended to injure the
feelings of his family or near relatives, shall be an offence of defamation.

A will made by a person is enforceable after his death, provided that the will has to be made in
favour of a living legatee. The dispositions made in his will are carried out as per his will, which is
specifically true in case of charitable purposes. Gifts made by deceased for charitable purposes
would be maintainable under law but not otherwise.

LEGAL STATUS OF LOWER ANIMALS

In common sense, animals are considered as the objects of rights and duties and never a subject of
them. But looking back into legal history, it reveals that several laws existed which contained
punishments for animals if they were found guilty of causing death of a man. Sutherland refers to
instances where bulls were punished for killing a man, whereby the bulls are stoned to death and
their flesh not eaten[19].

In modern sense animals cannot be punished. If they are extremely dangerous, they can be shot
down only under certain laws according to the procedures prescribed.

An animal is incapable of possessing legal rights and duties. It is considered to be the rights and
duties of its owners, which means the owner will be held liable for the damages caused by his
animal. A legal duty falls upon owners of animals, especially ferocious animals, to train and control
them, any departure from which will be considered as negligence from the part of the owner.

The instances where animals possess some legal rights are as follows-

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 Cruelty to animals is a criminal offence. In india, Sec.11 of Prevention of Cruelty to Animals
Act 1960 prescribes punishment for cruelty caused to animals by beating, kicking, torturing,
mutilating etc.

 A trust for the benefit of a particular class of animals, as opposed to one for individual
animals, is valid and enforceable as public and charitable trust[20]

LEGAL STATUS OF IDOLS

In the landmark judgement of Pramatha Nath Mullick v. Pradyumna Kumar Mullick[21], the Privy
Council held that an idol is a juristic person and its will as to its location must be duly respected. A
similar view was upheld by the Supreme Court of India in Yogendra Nath Naskar v. Commissioner
of Income Tax[22], wherein it was held that an idol is a juristic person capable of holding property
and of being taxed through its shebaits whom is entrusted with the possession and management of
its property.

LEGAL STATUS OF MOSQUES

Courts have conflicting views in this matter. In the case of Maula Bux v. Hafizudeen[23], the high
Court of Lahore held that a mosque was a juristic person capable of being sued. But the privy
council held a contrary view in Masjid Shahi Ganj[24] case and observed that mosques are not
artificial persons in the eyes of law and therefore no suit can be brought by or against them.

CORPORATE PERSONALITY

The legal systems of both England and India recognizes the legal personality of a corporation. A
corporation is an artificial person. There are three conditions that are inferred from the juristic
personality attributed to a corporation. These are-

 There must be a group of human beings coming together for certain purpose.

 There must be organs through which corporation functions

 The corporation is attributed will (animus) by legal fiction.

The characteristics of a corporation are as follows

– A corporation has a legal personality of its own distinct from that of its members.

– In a limited liability company no member is bound to contribute anything more than the nominal
value of shares held by them[25].

– An incorporated company has perpetual succession which means a company will continue to exist
even after its members change or die. In short, members may come and go but company will remain
forever[26].

– Shares of the company are transferable in the manner provided by the articles of the
company[27].

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– As a juristic legal person, a company can sue in its own name and also can be sued in its
name[28].

– A company as a separate legal entity is capable of owning its own property. The property of a
company is not equated as the property of its shareholders[29].

Lifting of corporate veil

This is a legally recognized doctrine where a court, based on circumstances of the case, alters its
perspective and view a corporate and its members in a different light, and hold the members
personally liable for the acts committed in the name of corporation, instead of suing the
corporation.

The instances where modern company law disregards corporate personality are-

 Where companies are in the relationship of holding and subsidiary or sub-subsidiary

companies, as held in the case of Freewheels (India) Ltd. V. Dr. Ved Mitra[30].

 When the limited liability of a company ceases to exist due to defying the statutory provision
which calls for minimum number of shareholders in a company. For example- if the number
of shareholders in a private limited company falls below 2 or fall below 7 in case of public
limited company, in such case each shareholder is personally liable to an unlimited extent, to
the creditor for any debt or liability contracted by the company after the expiration of six
months from the date the numbers fall below legal minimum, if the member concerned
knowingly continued as member.

 In certain matters concerning law of taxes, debts, duties and stamps, where the question of
controlling interest is in issue[31].

 Under law relating to foreign exchange and controls[32].

 Under regulations relating to trading with enemy, where the test of control is adopted.

 Under express provisions of the statute[33].

 In any other case where it is necessary to lift the corporate veil in the interest of justice and
truth.

Liabilities of a corporation

– Civil Liability:

As per the vicarious liability principle, a corporation is liable for the acts committed by its
employees or agents during the course of their employment. However, a perplexing question before
the courts where whether corporations be held accountable for the acts of its servants that involve
malice.

In Stevens v. Midland Countries Railway Ltd[34] and Abrath v. North Eastern Railway
Company[35], it was held that corporation being merely a fiction does not possess a mind of its

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own. Therefore, it is incapable of conceiving any malice and cannot be held liable in an action
involving malice.

The decision in Abrath case was overruled in Citizen’s Life Assurance Co. v. Brown[36]. it was told
that a company can be held liable for torts involving malice such as defamation. It is now settled
that a corporation may be sued for malicious prosecution or deceit or defamation which involves
malice as a requirement. However, corporation will not be accountable for acts of its servants which
are not authorized by the articles of association of the company.

– Criminal Liability

Previously, companies were not held liable criminally for the acts of its servants. But in the modern
view, a corporation may incur criminal liability in cases involving malice, fraud, or other wrongful
motives. In India also criminal liability may be imposed upon corporations under the Companies
Act and other statutes.

THEORIES OF CORPORATE LEGAL PERSONALITY

1. Fiction Theory

Savigny, Kelson, Salmond and Holland are the exponents of this theory. According to them,
corporation is merely a fiction. It is a group of persons which by legal fiction are regarded as a real
person.

According to Professor Gray, by fiction an abstract entity called the corporation is created and by a
second fiction the wills of individuals are attributed to it[37].

A company in law is different from its shareholders or members. The company may become
bankrupt, but its members may remain rich[38].

2. Concession Theory

According to this theory, juristic personality is a concession granted by the state. It is entirely the
discretion of a state whether to grant juristic personality to a corporation or not. It differs from
fiction theory on the ground that the concession theory emphasizes on the State’s power to recognize
a corporation.

This over emphasize has been criticized by many jurists as it can open doors to State dictatorship.

3. Group personality theory

This theory supposes that every collective group has a real mind, a real will and a real power of
action[39]. this theory was mainly contended by Johannes Althusius and carried forward by Otto
Van Gierke. Gierke stated that the existence of a corporation is real and not based on any fiction. It
is a psychological and not a physical actuality. He further stated that the law has no power to create
an entity but solely has the right to identify or not to identify an entity.

4. Bracket theory

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Ihering, a German jurist is the key propounder of this theory. According to this a juristic personality
is only a symbol to facilitate the working of the corporation. Only the members of the corporation
are ‘persons’ in true sense and around them a bracket is put to indicate that they are to be treated as
one unit when they have formed themselves into a corporation[40].

The main criticism against this theory is that it nowhere prescribes the instance of lifting the
corporate veil and holding individual members accountable for their acts.

5. Purpose theory

Here, corporations are treated as persons for certain specific purposes. In Germany foundations are
treated as juristic person. A foundation is a trust like setup for charitable purposes. These
foundations are treated as juristic personality in order to facilitate legal transactions.

6. Kelson’s theory of legal personality

Kelsons theory tells that personality is only a technical personification of a complex of norms, a
focal point of imputation which gives unity to certain complexes of rights and duties[41]. Kelson
shows that there is no difference between the legal personality of an individual and that of a
corporation[42].

LEGAL PERSONALITY OF STATE

State is the greatest form of social organizations. State is a juristic person who can sue and be sued.
Article 300 of the Indian Constitution states that “The Government of India may sue or be sued by
the name of the Union of India and the Government of a State may sue or be sued by the name of the
State”[43].

Modern writers attribute sovereignty to state. The state is the sovereign, laws are the state laws, the
revenues are state revenue and the public liabilities are state liabilities[44].

In England the state is not a recognized legal personality. Salmond suggest that existence of
monarchy has rendered the attribution of legal personality to the State superfluous[45]. The rights
and duties of the state are always regarded as that of the King who is the head of the state. So, there
is no independent legal personality for a State.

CONCLUSION

The concept of legal personality is fundamental in a legal system as it form the basis of the objective
of law in a society. Laws are made to govern human conduct in such a manner that the acts of
members of society does not cause damages to each other or infringe another individual’s right. It
brings in the principle of accountability which is necessary to strike harmony in the society. This
concept is not merely constrained to living human beings alone. It extends to unborn persons, dead
persons, animals, corporations, idols, mosques, environment and even the state as they all form
part and parcel of society and interferes in everyday lives at various levels.

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Theory of punishment

Introduction

Punishment is the most prominent feature of criminal law. Every society has its own way of social
control for which it frames certain laws and also mentions the deterrents attached to them.
Punishment is the consequence of an unpleasant act that the wrongdoer commits. Simply put, the
fundamental aim of punishment is to give relief to the aggrieved party and to maintain law and
order in society. Punishment can also be termed as the imposition of some form of deprivation by
withholding rights that a person is legally entitled to. This article aims to bring to its readers a
simple explanation of the theories of punishment that helps the criminal justice system function from
time to time.

Objects of punishment

1. To protect society from mischievous elements by deterring potential offenders.

2. To prevent actual offenders from committing further offences.
3. To eradicate evils and reform criminals and turn them into law-abiding citizens.
4. To administrate justice partly by inflicting pain to deter criminals and others from
indulging in crime and partly by reforming criminals.
5. To maintain rules and regulations for a crime-free country.

An insight of theories of punishment

Theories of punishment generally contain policies regarding the handling of crimes and criminals.
The theory of punishment deals with the principles on the basis of which punishment is to be given to
the offender, with the object of safeguarding a society deprived of law and order. There are four
types of theories of punishment.

1. Deterrent theory.
2. Retributive theory.
3. Preventive theory.
4. Reformative theory.

Deterrent theory of punishment

The founder of this theory is Jeremy Benrhem, and this theory is based on the principle of
hedonism which says that a man would be deterred from committing a crime if the punishment
applied was swift, certain, and severe.

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This theory focuses on deterring offenders from criminality or repeating the same crime in the
future. This theory is a lesson to members of society who experience the consequences of that crime.
It creates fear of punishment in like-minded people.

There should be a nexus between the crime committed and the punishment inflicted for that. While
deciding on the punishment, the following should be taken into consideration;

1) The seriousness of the crime – Punishment should be given according to the seriousness of
the crime committed, for e.g one can’t award a death sentence for pickpocketing.

2) The gravity of crime – The consequences of the punishment inflicted have to be taken into
consideration alongside taking into account the victim’s satisfaction concerning the same. For e.g, if
Mr.X is murdered by Mr.Y then if Mr.Y is giving one-time compensation of Rs.5 lakhs to X’s family,
is it sufficient if he is the only bread earner of the family?

3) Impact on the general public – It is most important to consider what will be the effect of that
punishment in the minds of the general public. Are they taking lessons from that? For example,
traffic police are collecting fines for not wearing helmets, but do people follow this rule? Are they
really serious about fines and rules?

In the case of the State of H.P.v. Nirmala Devi (2017), the court of law had opined that if the
crime done is heinous and serious against society then the deterrent theory becomes more relevant,
for those guilty will be punished to deter other prospective offenders.

Criticism of deterrence theory

1. Though this theory intends to deter people from committing crimes or repeating the same
crime, it has failed to serve its purpose. It has proved ineffective in checking crimes and the
fact that excessive harshness of punishment tends to defeat its purpose by arousing the
public’s sympathy towards those who are subjected to such punishment.
2. Punishment loses its essence once the criminal is punished. For example, in the Delhi gang
rape case, familiarly known as the Nirbhaya case, all 4 accused were hanged for their
heinous crime but the offence of rape continues to happen. Thus the question as to whether
the deterrent theory of punishment serves its purpose remains arising in people’s minds.
3. It does not give a chance to reform the accused.

Retributive theory of punishment

This theory is based on the famous saying that a ‘Tit for Tat’, ‘ Eye for Eye’ or’ Teeth for Teeth’. The
main motive of this theory is to inflict a similar amount of pain endured by the aggrieved party
because of the offender’s activity. Put simply, it can be said that every punishment is retributive to a

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certain extent for the purpose of punishment itself is to restore peace and harmony in society. This
theory is harsher than other theories.

Owing to humanitarian grounds, this theory of punishment is not much on the favourable side for it
causes harm to the accused in a greater way. Therefore, the most important thing to consider while
awarding punishment is the balance between the aggravating and the mitigating factors involved
in the offence committed.

Criticism of the retributive theory

As per the development of society, this type of punishment was banned due to the following
criticism.

1. It is difficult to determine the proportion of pain or revenge in this type of punishment,

meaning to what and to what extent the pain should be returned.
2. The entire natural justice principle will collapse if everyone takes revenge on each other
according to their hate and the injury caused.

Preventive theory of punishment

Unlike other theories, this theory aims to prevent crime rather than take revenge. This theory is also
called the disablement theory. Put simply, we can understand the nature of this theory with a simple
example: when we were in school, our teachers used to make the mischievous students stand out of
the classroom, for disturbing the whole class. This punishment by the teacher prevents other
students from disturbing the class due to fear of punishment. In the same way, this theory talks
about eliminating the accused from society to prevent the repetition of his crime again. By
preventing those criminals, society protects itself against anti-social order in general. Prevention of
these criminals can be done by giving them death punishment or life imprisonment. Separation of
these criminals from society prevents other prospective offenders from committing crimes.

In the case of Sunil Batra v. Delhi Administration (1978), the court of law observed that if the
prisoner is violent or dangerous, solitary confinement is necessary to prevent and segregate these
offenders from society, thereby abiding by the retributive theory of punishment.

Criticism surrounding the retributive theory of punishment

While the retributive theory promotes the dissertation of the offender, the same has severe
consequences and difficulties inflicted upon the accused. It is ideal to note that the concept of
morality being subjective by its very nature makes it difficult to deliver punishments for crimes
committed. Therefore, the immorality of crimes needs to be comparable.

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Reformative theory of punishment

The name of this theory itself implies what its nature has to say. This theory helps to reform
criminals, thereby transforming them into law-abiding citizens. Nobody is indeed a criminal by
birth, crimes sometimes happen accidentally or situationally. In this case, the offender should get
another chance to rectify his mistake. For this, there is the facility of correctional homes, juvenile
homes, training schools, and reformatories. The main object of this theory is the rehabilitation of
inmates.

It was the case of Dharambir v. State of Uttar Pradesh (1979), which became the initiation of
the concept of open jails in India which generally helps in reforming young offenders. Further, the
Supreme Court of India, while deciding the case of Musa Khan v. State of Maharashtra (1976),
had observed that the reformative system prevented juveniles from becoming hardened criminals.

Criticism surrounding the reformative theory of punishment

1. This theory only works for juvenile and first-time offenders and not for hardened criminals
who have committed multiple crimes.
2. The reformative theory of punishment is sometimes considered not justifiable for the
aggrieved party subjected to prejudice by the offender.

Conclusion
The main purpose behind inflicting punishment on the offender, accused of an offence, is to restore
law and order in society. In this process of awarding punishment, both the interest of the aggrieved
party as well as the accused needs to be taken into consideration. One must not forget that
awarding punishment should be directly proportional to the gravity of the crime caused by the
offender. Keeping the same in mind, alongside the need to curb crime from happening at a rampant
rate in society, punishment needs to be awarded. When it comes to the theories discussed in this
article, they serve as a jurisprudential value for the criminal justice system to frame punishments
according to the crime committed. These theories have been significant in helping the legislators and
the judiciary frame and interpret provisions of punishment, respectively, for a better tomorrow.

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