JOHN AUSTIN’S

A- THEORY OF SOVEREIGNTY
B- THEORY OF LEGAL POSITIVISM
 Introduction
John Austin (1790–1859) was born in the United Kingdom. He was the founder and
father of the Analytical school of law. He is known for his theory of sovereignty and
legal positivism mentioned in his book “Province of Jurisprudence”.
A. Austin’s Theory of Sovereignty
The definition of law according to Austin was, “Law is a command of the sovereign
backed by a sanction.” Breaking this definition into its fundamentals: –

1. Command, of
2. Sovereign, which if not followed attracts
3. Sanction.
Now in order to fully understand Austin’s theory of Legal positivism, let us explain
these elements in a concise and comprehensive manner.

1) Command: Commands are expressions of desire given by superiors (sovereign) to

inferiors (general public). There are commands which are laws and which are not, Austin
distinguishes law from other commands by their generality. Laws are general commands,
unlike commands given on parade grounds and obeyed there then by the troops.
Observation: From the above definition we can conclude that Austin’s definition of
commands gives the sovereign authority status of ultimate supreme, and imply that the
authority of the sovereign is absolute which is the opposite of the constitutional framework
which prevails in India, and for that matter in any peaceful democracy. This definition
expresses that the sovereign, that is, the person/people in power is politically superior, but in
democratic countries, it is not true. Every citizen has the same right same that of a
President/Prime Minister/Chief Justice.
It also disregards other sources of law, like laws made by judges (considered as mere
delegates) in form of precedents, laws made by the executive as statutory instruments, etc
which hinders the growth of not only the jurisprudence of the country but also of the society,
government and private institutions and economy.

2) Sovereign: A sovereign is any person or body of persons, whom the bulk of a political
society habitually obeys and who does not himself habitually obeys, some other persons
or persons.
Observation: From the above definition of the sovereign, we can conclude that according to
John Austin, the sovereign is not accountable to anyone but the whole realm has to follow
whatever the sovereign dictates which are in stark contrast with the idea of democracy and
Indian federalism. Also, Austin’s theory has mentioned that the powers of the sovereign are
indivisible, i.e. sovereign will make laws, the sovereign will execute the laws and the
sovereign only will administer the law. This philosophy is also in contravention with the idea
of democracy and the Indian federal structure.
3) Sanction: This term is derived from Roman Law. According to Salmond “Sanction is the
instrument of coercion by which any system of imperative law is enforced. Physical force
is the sanction applied by the state in the administration of justice
Observation: From the above definition of Austin, we can conclude that sanction is the
force/evil which follows to if the individual if he/she fails to obey the command of the
sovereign. His theories have put sanctions as more of a physical force state uses to
suppress the non-abiders, which is very autocratic and narcist per say. This definition does
not give room to people participation in government and we can say that having a difference
of opinion (which is very crucial for the development of any country socially, politically and
economically one can be subject to the sanction too.
B. Analytical Approach to Jurisprudence and Theory of Legal Positivism.

“Legal Positivism” theory was his notion “Law as a Command”. Owing to his works he has
been saluted as “Father of English Jurisprudence”.
“Analysis” is breaking down a problem into smaller problems so they can be solved
individually. Analytical Approach in general parlance is a method through which a broad
subject is broken down into smaller topics and subtopics in order to solve problems, conduct
studies or resolve uncertainties.

In Austin’s Analytical Approach, his effort is to gain a precise and in-depth understanding of
Fundamental Concepts of legal reasoning. He chooses to exclude all external influence or
even history and completely indulges in gaining access to first principles of law as it is,
regardless of its “goodness” or “badness” or “moral worthiness”. This approach leads to
reading of “Law as it is” or “Positum” (and not the ideal law) also called “Positive Law”,
advocated by Austin in his Theory of Legal Positivism. From now, we have a fair idea of
what is Austin’s analytical approach which gives us the theory of legal positivism.

Positive law is basically human-made law. It includes statutes laid down by legislatures or
rules and regulations by the human institution. Black’s law dictionary defines positive law as
“Law actually and specifically enacted or adopted by proper authority for the government of
an organized society.” This is principally how Austin frames his notion of Law, which
fundamentally constitutes Positive Laws for him.
What is “Law” For Austin?

“Law is the aggregate of rules set by men as politically superior, or sovereign, to men
as politically subject.”
In other words, he says, laws are man-made rules by sovereign imposed upon the society it
governs. He equates a law to a “command” by a body which is politically higher.
Thus we have following essentials
 Sovereign, which makes a
 Command, which imposes a
 Duty, which IF NOT followed calls for
 Legal sanction.

“Sovereign”
According to Austin, every political set up has a sovereign power which is habitually obeyed
by the people in the society. There is only one sovereign in the society and it can be a single
person or a group. It is the sole source of power and creator of laws and thus there can be
no legal limits or “de jure” limits to its power. There can, however, be “de facto” or physical
limits since the extent of the coercive force of the commands and their obedience by people
have practical limits.
The only boundaries of sovereign power are physical limits. If read into an existing situation,
he refers to statutes, legislated by the parliament or any parallel body, which has to be
obeyed by the people, regardless of how the statute is.

“Command”
His definition is also called “Command theory” or “Imperative theory” of law. “Imperative
Law is a rule which prescribes a general course of action imposed by an authority which
enforces it by superior power either by physical force or any other form of compulsion.”

“Duty”
The command levies a “legal duty” on those who are politically subject to the “commander”
who is sovereign. Every duty supposes a command by a sovereign by which it is created.
“Legal sanction”
It is implied in the theory that this sovereign has with itself a power to punish or penalize for
noncompliance of laws. This penalty or punishment imposed is called Legal Sanction. The
dread of legal sanction, as an evil consequence in case of disobeying, is the motivation
behind one’s adherence of law and thus is a requisite part.

 Criticism
1. When Austin comments that sovereign is the creator of laws, he ignores the fact that
foundation of law lies in common consciousness of the people which manifests
themselves in customs and thus also overlooks Customary law which has always been
widely respected and followed.
Personal laws like Hindu Law, Canon Law or Muslim law, existed long before a sovereign
began to legislate, and yet, these laws were not only acknowledged but followed with
immense devotion.
Secondly, Legal character of the law becomes obvious when it is applied by a Court of
Law in the administration of Justice. Even Legal Sanctions, though created by the
“sovereign” but are used through the courts. Courts may misinterpret a statue or reject a
custom. In this process, the court often lays down Precedents or Case-Laws which are
often religiously followed in future cases.
2. Austin’s theory does not apply to Constitutional law. The sovereign, no matter how strong
will always be subjected to the Constitution and the latter cannot be equated with a
“command” of a state. It will be an absurd idea to say that Constitution, which is a
command of the sovereign, will, in turn, direct the sovereign. Further, the Constitution is
primarily the highest law and essentially comes before the state. It defeats Austin’s
preposition that Sovereign creates the law laid by the constitution.
3. The definition is majorly applicable on Monarchical Police State which authors the law
and has the power to inflict evil on those who do not comply. In the modern era, there are
empowering and enabling laws which confer privileges on the citizens. They are purely of
permissive nature and give discretion to the individual himself. They cannot be called a
command in their true sense.

 Relevance in modern Indian politics & legal society

From the critical analysis of Austin’s theory of sovereignty and legal positivism, the author
has made the following inferences and has tried to establish the relevance of the same to the
modern Indian political and legal society.

1) Presumption about the subjects

Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will
command which is not true in the present scenario in India politics.

But that is not true in the modern scenario. The people who deem the government as unfit
criticize, protest and resist the government and its policies. Which sometimes causes even
the total failure of constitutional machinery like one observed in 1975 when Indira Gandhi
(then PM) imposed emergency.

2) Doesn’t give room to common law other law-making bodies

According to Austin, only those commands that are given by a political superior i.e.
sovereign are laws the real sense. He has tried to define the law from the sources of its
origin than its functions. Though, there is a subtle acceptance of law made by judges
(precedents) unless except it goes against the laws made by the sovereign but it is not
appropriate in any sense.
In India, the Supreme Court is the keeper of the constitution and it has the power to declare
any legislation as void if it contravenes any of the provisions of the constitution and thus
protects the fundamental rights of the people of the country. Thus, Austin was also not
cognizant of the common law which is the foundation of many countries’ governmental
setup.

3) Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human elements like
mutual understanding and cooperation between the state and the subjects and on the other
hand, we can see that he has made vague presumptions about the subjects like habitual
obedience, which is an extremely rare phenomenon in the modern world. He hasn’t
established the right balance between the role of the state and citizens and their relationship
with each other.
Also, Austin’s theory has totally ignored the values and ethics like Liberty of thoughts and
beliefs, Equality of status, etc which are enshrined in the preamble and are the fundamentals
of the Indian constitution. Also, India because of its religious and cultural diversity, has not
been considered as a federal state where all the power is with sovereign by the constitution-
makers. It has been beautifully made as a “Union of states” as mentioned in U/A 1 of the
constitution. This is to keep all the states integrated in India but at the same time preserve
their individual autonomy and give them a sense of freedom both of which are in favor of the
nation.

4) Absolute, unrestricted and indivisible powers to sovereign

Austin has postulated that the sovereign is free from all restraints of any kind of law and that
no sanctions of any nature can be imposed on him. The command of sovereignty is superior
to overall individuals and associations.

Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e.
sovereign will make laws, the sovereign will execute the laws and the sovereign only will
administer the law. This philosophy is also in contravention with the idea of democracy and
the Indian federal structure.

5) Not cognizant of international law

In the modern era, there are multiple international laws every country has to follow. The
importance of international laws can be understood from the fact that nowadays procedures
exist to make the state liable for injuries caused to foreigners in their land.

Various other principles of international law seem to have cored the concept of sovereignty.
A sovereign doesn’t have the power to perpetuate inhumane action against his citizens as
the same shall come into great criticism from the world order and it shall soon have to face
the consequences of surviving in a hostile world atmosphere if it continues to do so

Thus, we can infer from the above facts that all Austin’s theory is not suitable for the
modern Indian political and legal scenario because it leads to political instability,
anarchy, and social chaos.
 KELSEN’S PURE THEORY 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.

PURE THEORY OF LAW

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.
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.
IDEAS ENCOMPASSED IN THIS THEORY
The Grundnorm:-
Kelson`s pure theory of law is based on pyramidical structure of hierarchy of norms of
which derive their validity from the basic norm it is called Grundnorm .The Grundnorm
or basic norm determines the content and gives validity of other norms derived from
it. Kelson considers legal science as a pyramid Norms with Grundnorm at the apex
.the subordinate norms are controlled by norms superior to them in hierarchical order
.However the Grundnorm is independent of any other noun being at the apex .the
process of one norm deriving its power from the norm immediately superior to it, until
it reaches the Grundnorm has been termed by Kelson as concretization of the legal
system thus the system of norms proceeds from downwards to upwards and finally it
closes at the Grundnorm at the top.
Hierarchy of Norms
According to this theory, Kelsen considered legal science as a pyramid of norms with
(Grundnorm) basic norms at the apex.
In this hierarchical order superior norms have control over the norms subordinate to
them.
In this process norms proceed from downwards to upwards and derive their power
from the norm immediately superior to it until it reaches the grundnorm, which has
been termed as “concretization” of the legal system.
For e.g.: a statute or law is valid because it derives its legal authority from the
legislative body, and the legislative body derives its authority from a norm i.e., the
Constitution.
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.
KEY FEATURES OF THEORY
Law as Science: Kelsen tried to present a theory that could be attempted to change
Law in science, a theory that could be understood through logic.
As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces
his theory as a theory of positive theory. This principle of positive law is then
presented by Kelson as a hierarchy of laws that begins with one basic norm, i.e.
Grundnorm ‘, where all other norms are related to each other either being inferior
norms.
Law “As it is”-: Kelsen emphasized that analysis should focus on the law as ‘it is in
fact laid down, not as ‘it ought to be’.
Law and morality: Kelsen’s strict separation of law and morality is an integral part of
his pure theory of law.
The theory of law should be uniform; According to Kelsen, the theory of law should
be applied at all times and in all places
.
MERITS OF THE PURE THEORY OF LAW
(1) Kelson recognized International Law as a law
(2) Pure theory of law is best for peaceful change
(3) It makes the most refined development of analytical positivism
(4) Kelson’s concept of the legal system is clearly original and striking
(5) Kelson has explained that no law can prevail country to grundnorm or constitution
(6) Kelson’s Pure Theory of Law is considered to be the most outstanding theory of
law

CRITICAL ANALYSIS:-
1. The theory of Kelsen suggests that Grunderm is the concept of the Constitution
that ought to be followed. The Constitution of a country is a sociological, political
document, and therefore Grundnorm is not pure.
2. Kelsen also said that the law should be kept free from ethics/morality. A general
question should be raised here, whether it is possible to keep the law free of
ethics/morality? Kelsen insisted on the law to be effective and thus he accepted
indirect ethics as a part of effectiveness.
3. Kelsey attempted to change the law into a science, a theory that could be
understood through logic, but on the other hand, he emphasized the validity of the
Grundnorm to “assumed”, rather than based on some “logic”.
4. Kelsen tried to find the law and legal norms in a middle realm between absolute
ethical values and social facts. Therefore, rejection of the relevance of ethics ideas
makes the legal science sterile and useless and rejects the factual nature of law that
separates it from reality.

Why is it called 'Pure Theory of Law'?

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-
Hans Kelson was one of the greatest jurist of the 19th century. He gave a new shape
of jurisprudence .Kelson took positive law as the subjects matter of his study .The
credit goes to Kelson for developing a pure theory of law .He has separated
jurisprudence from all other social science, and liberated the law from the
metaphysical mist with which it has been covered at all times by the speculations of
injustice .
 ROSCOE POUND SOCIAL ENGINEERING THEORY

Dean Roscoe Pound was one of the greatest American jurists who is considered to
be father of modern American Sociological Jurisprudence. He is the father of
sociological jurisprudence. He introduced the doctrine of “Social Engineering” which
aims at building an efficient structure of society which would result in the satisfaction
of maximum of wants with the minimum of friction and waste. 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.
He made unique contribution to the science of law and legal philosophy.
Pound Theory of Social Engineering:
Dean Roscoe Pound added new dimensions to Sociological School of Jurisprudence.
He tried to cover social life as a whole. He concentrated more on functional aspect of
law and therefore his approach has been termed as functional School by some writer.
Theory of Social Engineering
Pound compared the task of the lawyer to the engineers. He stated that the aim of
social engineering is to build a structure of society as possible which requires the
fulfillment or satisfaction of maximum wants with minimum usage of resources. It
involves the balancing of competing interests. He called this theory as the theory
of “Social Engineering.”
Here Pound has used two words i.e. “Social” which means group of individual forming
a society. The second word is “Engineering” which 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.
For facilitating the tasks of social engineering, Pound classified various interests to be
protected by law in three heads:

Private Interests / Individual Interest– Individual interests, according to Pound are

claims, or demands or desires from the point of the individual. Individual interests
according to Pound includes:
a. Personality- interest of personality consist of interests in –

 The physical person,

 Freedom of will,
 Honour and reputation,
 Privacy and sensibilities,
 Belief and opinion.
b. Domestic relations – it is important to distinguish between the interest of
individuals in domestic relationships and that of society in such institutions as family
and marriage. Individual interests include those of :

 Parents and Children,

 Husbands and Wives &
 Marital interests.
c. Interest of substance- this includes

 Interests of property,
 Succession and testamentary disposition,
 Freedom of industry and contract,
  Promised advantages
 Advantageous relations with others,
 Freedom of association, and
 Continuity of employment
2. Public Interest– Public interests according to him are the claims or demands or
desires looked at from the stand point life in politically organized society. The main
public interest according to Roscoe pound are :
a. Interests of state as a juristic person which includes
Interests of state as a juristic person i.e. protection
Claims of the politically organized society as a corporation to property acquired and
held for corporate purposes.
b. Interests of State as a guardian of social interest, namely superintendence
and administration of trusts, charitable endowments, protection of natural
environment, territorial waters, sea-shores, regulation of public employment and so
on to make use of thing which are open to public use , this interest seem to overlap
with social interests.
3. Social Interest : Social interests are the claim or demands or desires thought of in
terms of social life and generalized as claims of social groups. Social interests are
said to include :
a. Social interest in general security -Social interest in the general security
embraces those branches of the law which relate to

 General safety,
 General health,
 Peace and order,
 Security of acquisitions and
 Security of transactions.
b. Social interest in the security of social institutions- Social interest in the
security of the social institutions include

 General security of domestic institutions,

 Religious institutions, political institution and
 Economic institutions.
c. Social interest in general morals – Social interest in general morals comprises of
prevention and prohibition of prostitution, drunkenness, gambling, etc.
d. Social interest in conservation of social resources- Social interests in the
conservation of social resources covers conservation of social resources and
protection and training of dependents and defectives, i.e. , conservation of human
resources, protective and education of dependents and defectives, reformation of
delinquents, protection of economically dependents.
e. Social interest in general progress – Social interest in general progress has
three aspects. Economic progress, political progress and cultural progress.

1. Political progress covers free speech and free association, free opinion,
free criticisms.
2. Economic progress covers freedom of use and sale of properly , free,
trade , free industry and encouragement of inventions by the grant of
patents.
3. Cultural progress covers free science, free letters, encouragements of arts
and letters, encouragements of higher education an learning and aesthetics
f. Social interest in individual life.- Meaning thereby each individual be able to live
a human life according to the individual’s

1. Political life
2. Physical life
3. Cultural
4. Social and
5. Economic life

JURAL POSTULATES OF ROSCOE POUND

In order to evaluate the conflicting interests in due order of priority, pound
suggested that every society has certain basic assumption upon which its ordering
rests, through for most of the time they may be implicit rather than expressly
formulated. This assumption may be called as jural postulates of the legal system of
that society.
Pound has mentioned five jural postulates as follows-

1) Jural postulate I– in civilised society men must be able to assume that

others will commit no intentional aggression upon them.
2) Jural postulate II– in civilised society men must be able to assume
that they may control for beneficial purposes what they
have discovered and appropriated to their own use, what they have
created by their own labour and what they have created by their own
labour and what they have acquired under the existing social and
economic order.
3) Jural postulate III – In a civilized society men must be able to assume
that those with whom they deal as a member of the society will act in
good faith and hence-
Will make good reasonable expectations which their promises or other
conduct reasonably create;
Will carry out their undertaking according to the expectations which the
moral sentiment of the community attaches thereto.
Will restore specifically or by equivalent what comes to them by
mistake, or failure of the pre-suppositions of a transaction, or other
unanticipated situation whereby they receive at other’s expense what
they could not reasonably have expected to receive under the actual
circumstances.
4) Jural postulate IV– in civilized society men must be able to assume
that those who engage in some course of conduct will act with due
care not to cast an unreasonable risk of injury upon others.
5) Jural postulate V-in a civilized society men must be able to assume
that others who maintain things or employ agencies, harmless in the
sphere of their use but harmful in their normal action elsewhere, and
having a natural tendency to cross the boundaries of their proper use
will restrain them and keep them within their proper bounds.
CRITICISM TO POUND’S THEORY OF SOCIAL ENGINEERING:
Despite Pound’s great contribution to sociological jurisprudence and his emphasis on
studying the actual work of law in society, his theory suffers from some shortcomings.
Pound’s theory of social engineering has been criticised on various grounds.
1) Use of term “Engineering”:
Pound’s theory of social engineering equates society to a factory like a mechanism.
Law is a social process rather than the result of applied engineering. It is also not
right to equate society with a factory because the former is changing and dynamic in
nature while the latter is more or less stable. Again, Pound’s emphasis on
engineering ignores the fact that law evolves and develops in society according to
social needs and wants that for which law can develop in society according to social
needs and for which either in law approval or rejection may occur.
2) No yardstick to measure interests:
Pound has classified the interests into three categories but has not provided any
yardstick to measure or evaluate these interests. He does not give an ideal scale of
values with reference to interests. Moreover, the Jural postulates of the legal system
of the societies are not absolute and are of changing nature, hence, it is difficult to
evaluate these interests. Pound himself has admitted that philosophy has failed to
provide an ideal scale of values and that the best that jurist can do is to proceed with
the task of adapting law to the needs of his generalisation the choice between
conflicting ideologies is one for the community at large.
3) Interests are overlapping:
The classification of social and public interests is misleading because these interests
are overlapping. There is no hard or fast rule to fix in which category the interest falls
therefore, great jurist Julius Stone has stated that all public interests are social
interest. Pound himself has inserted a certain evaluation by describing the interest in
individual life as the most important of all. However, there is a danger of an implicit
evaluation in the grading of interests as individual, public or social. What is an
individual and what is a social interest is itself a matter of changing political
conceptions. Many interests come under different categories.
4) Danger to individual freedom:
According to Pound theory the task of the law is of Social Engineering, to satisfy
maximum needs of maximum numbers with least friction. It is but natural that
individual interest has to give a way to social or public interests. Thus, individual
interest is always curtailed. It has also been argued against pound’s theory of
interests that it has no significance in a pluralistic society where there are linguistic,
ethics, and religious minorities having diverse interests. Harmonizing their divergent
interests is by no means an easy task to be performed through law and courts.
5) Importance to Court Judgment:
Pounds theory shifts the centre of gravity in the legal order from legislation to court
judgements, but the judiciary has its decisions and therefore cannot really do effective
social engineering. Justice can give ad hoc judgements on specific issues coming up
before them but they cannot frame a broad plan for restructuring society. Such broad
plan can be prepared by legislation only
 SAVIGNY
Introduction
“The only certain point which can guide us here is the idea of infinite progression.”
“Law is founded and not made”, the adage is the premise of the historical school of law. The
historical school of law was established by Friedrich Karl and Von Savigny. As per this
school, the law is the formation of connections between the nearby circumstances and states
of individuals, the law isn’t established by any political prevalent yet found and given by
individuals.
Friedrich Carl Von Savigny
Savigny, a german jurist, is regarded as the founder of the Historical School on the continent
i.e. in Europe. The forerunner of Savigny had rejected natural law theory especially for two
reasons: First, by resurrecting the German mysticism and cultural ethos, they had already
demolished the supremacy and hegemony of natural law in the face of social and historical
facts. It is dubbed as unreal, imaginary and unhistorical. Second, the natural law principles of
liberty, equity and fraternity were no more sacrosanct as they were being violated by French
revolutionaries themselves by enslaving different communities of Europe.
CORE OF SAVIGNY’S THESIS
The center of Savigny’s stages was that the idea of a specific arrangement of law was an
impression of the soul of the individuals who included it. As indicated by him, the law of a
specific culture is the exemplification of the soul of individuals joined by basic language,
custom, sentiments and basic past to include and reproduce law. Therefore, the
development and advancement of law has no reliance upon individual discretionary will. Law
is conceived in the volk by mainstream soul. All laws are the indication of this normal
cognizance. He states “law develops with the development, and remaining with the quality of
individuals, lastly diminishes as the country loses its nationality”. Law has its source,
presence and legitimacy in the well-known awareness and internal emotions and its standard
recognition isn’t the reason for law however the proof of its reality. As indicated by him, law
isn’t a fake, self-assertive, life less mechanical gadget planned by a legal scholar to be
forced from above. It is then again, a complex quiet and undetectable yet unique experience
produces showing itself in the ‘basic sentiment of the internal need’ with which individuals
respect it.
DOCTRINE OF VOLKSGEIST
Savigny expounded his hypothesis of Volksgeist by battling that it is the wide standards of
the framework that are to be found in the soul of the individuals and which get shown in
standard principles. From these premises it adhered to that law involves oblivious
development. Any law making ought to in this way follow the course of authentic turn of
events. Law is therefore not of all inclusive application; it fluctuates with individuals and
ages. As indicated by Savigny, a law made without contemplating the previous verifiable
culture and convention of the network is probably going to make more disarray instead of
taking care of the issues since ‘law’ isn’t a fake dead mechanical gadget. Savigny’s
commitment to the advancement of verifiable school of law through his hypothesis of
Volksgeist may quickly be expressed as follows:
1. The wellspring of law is “Volksgeist”: Law of a country isn’t the result of reason
or order however is solely dictated by the country’s impossible to miss character
which is in any case called the Volksgeist or soul of the individuals. Savigny, along
these lines, supported standard law over enactments. The custom goes before
enactment, and enactment also adjusts to gain expertise. As such he gives more
significance to law specialists than lawmakers.
2. Law is found and not made: Law was something which can be made or adjusted
self-assertively by officials. The substance of law is basically dictated by the entire
past of a people so it can’t be created stomach muscle extra by an activity of a
shrewd law supplier or by some imaginative or ace vivacious individuals. It is to be
found in famous confidence, regular feelings, customs, attributes, propensities,
conventions which in course of time develop into lawful principles.
 3. Law can’t be all inclusive or general in character: Law of a country, similar to
its language and way, is impossible to miss to its kin. It is consistently impossible
to miss, specific, constrained in its temperament and character contingent on the
unconventional customs of each individual. A country to him, implied just a network
of individuals connected together by verifiable, land and social ties. The limits of
certain countries might be obviously characterized, however not of different
countries, and this is reflected in the solidarity or assortment of their individual
laws. Indeed, even where the solidarity of a people is clear, there may exist in its
‘internal circles’ of varieties, for example, urbans and societies.
4. Law can be improved through verifiable examination: Historical exploration
was the key way to the comprehension and change of the present. Savigny
underscored that the jumbled and outdated nature of a legitimate framework was
ordinarily because of an inability to appreciate its history and advancement. He
cautioned that changes, which conflicted with the flood of a country’s congruity,
were damned. The basic pre imperative to the change of German law was, for him,
profound information on its history. On the off chance that law is an impression of
individuals’ soul, at that point it must be comprehended by following their history.
Criticisms
As of now talked about, a uniform and exact meaning of law is a long way from the real world, and
Savigny’s Volksgeist isn’t a special case. It has likewise a few reactions by different legal advisers,
which are as per the following:
1. Volksgeist not generally law: Dias says that numerous organizations like bondage have
started not in volksgeist however in the comfort of a decision government.
2. Inconsistency of the hypothesis: Savigny, from one perspective, accentuated the
national character of law however then again, he prescribed the strategy for Roman Law
to be embraced for the cutting edge conditions. Subsequently there is irregularity in the
hypothesis of Volksgeist.
3. Volksgeist isn’t a selective wellspring of law: According to Savigny, volksgeist is the
main wellspring of law in the public arena, however it isn’t right. Ruler Lloyd additionally
said that Savigny misjudged the importance of enactment for current society. To the extent
society is built up the law is additionally to be created in the general public by enactment
too.
4. Idea of Volksgost is itself obscure: Some guidelines of standard law may not mirror the
soul of the entire populace, for example neighborhood customs. Savigny allowed for these
by perceiving the presence of ‘internal circles’ inside a general public. The main inquiry
remains: if law is the result of a Volksgeist, how is it that only a few people and not all have
developed an uncommon standard? Then again, a few traditions, for example the Law
Merchant, were cosmopolitan in source: they were not the animals of a specific country or
race.
5. Overlooked different methods of advancement of Law: Law is once in a while utilized
intentionally to change existing thoughts; and it might likewise be utilized additionally
between State co-activity in numerous circles. Indeed, even in Germany one may example
Bismarck’s canny and effective endeavor to cut the ground from under the feet of the
communist development by presenting the Railway and Factories Accident Law 1871, a
long time before social conditions were ready. Significant guidelines of law now and again
create as the aftereffect of cognizant and brutal battle between clashing interests inside
the country, and not because of vague development, e.g., the law identifying with worker’s
organizations and industry. Development doesn’t follow an inflexibly decided way.
6. Other law affecting components overlooked: Savigny in his hypothesis disregarded
different variables that assisted with starting law. He completely overlooked the appointed
authority’s capacity to make the law. Paton expresses that the inventive work of the
appointed authorities and legal scholars were dealt with rather too gently by Savigny.
 H L A HART

Hart was a British philosopher who was a professor of jurisprudence. Hart modifies the theory of
Austin and Kelsen. He defined the legal system as such in his book “The Concept of Law”.

In his book The Concept of Law, Hart has analyzed the relation between law, coercion, and morality,
and has also attempted to clarify the question of whether all laws may be properly conceptualized as
coercive orders or as moral commands.

A legal system is a system of rules which are social in nature because firstly they regulate the
conduct of a member of society and secondly, they drive from human social practices”.

The Second reason in his definition gives an idea that in a legal system not only legal rules but also
non-legal rules also exist, e.g. morality, customary practices, ethics, values, etc. “Where there is a
law, their human conduct is made in some non-optional or obligatory.” Thus the idea of obligation is
at the core of the rule.

Austin rejected the content of morality but for Heart, rules are derived from the social practices. Prof.
Hart maintains the difference between the source and the relationship between law and morality. He
directly accepted the relationship between law and morality, which Kelson tries to keep the Purity of
law: Prof. Hart accepted the content of some other elements in law.

Kinds of rules:-

According to Heart, Rules of Obligation are distinguishable from other rules in that they are supported
by great social pressure because they are felt to be necessary to maintain society. Our conscience
also imposes an obligation.

Having said this he talked about two kinds of rules;

Primary rules:-

Primary Rules are those rules which impose ‘duty’ on a member of society like criminal laws, tort, etc.

Primary rules are one which tells people to do things, or not to do things. Primary rules are ‘duty
imposing’ rules. They impose certain specific duties on the citizens of the state to act in a certain
manner, or they may be subject to certain legal sanctions. Hart characterizes primary rules as “basic”
rules. They tell the citizen what one can and cannot do under the law. They lay down duties. These
rules are to do with physical matters.

Secondary rules:-

Secondary rules are ones which let people, by doing certain things, introduce new rules of the first
kind, or alter them. They give people (private individuals or public bodies) the power to introduce or
vary the first kind of rule. Secondary rules are not duty-imposing rules. They are what Hart calls
power-conferring rules.

Secondary rules are those rules which confirm ‘powers’ like Contract, Marriage, Will, Delegated
Legislation – the power to make law.

In the Indian Constitution, Schedule VII gives a list namely State, Centre, and Concurrent List, which
conferred power to respective organs to make laws. There is a link between these primary and
 secondary rules. There is a specific relationship between these rules which rather systematically
comprises a legal system and legal order.

Secondary rules have been divided into three more types, these are as follows;

1. Rule of Adjudication
2. Rule of Change
3. Rule of Recognition
Rule of Adjudication:-

It mainly represents those rules, which confer a direct power to adjudicate the matter in dispute, e.g.
Article 32, which empowers Supreme Court to issue prerogative writ: Article 131, 132, 134, 133 that
empower Supreme Court the original and Appellate jurisdiction. Article 323A and 323 B empower
tribunals to adjudicate matters in dispute. All those articles in the Constitution are power conferring.
They enable a court to decide a particular dispute.

Rule of change:-

Law-making power is to be accompanied by modification when a competent legislative body derived

its power to make law and should have the power to change the law. This power is necessary to
affect any kind of notification, e.g. Article 368 gives power to Parliament to amend the Constitution
and procedure thereof. Thus it gives the power to amend the Constitution. This power includes the
power to repeal, and remove difficulties. It is equally applicable to delegated legislation.

Rules of recognition:-

The rule of recognition is the criterion of existence and validity of the rule of the legal system. Hart
believes that the rule of recognition is the most important. The rule of recognition tells us how to
identify a law. In the modern system with multiple sources of law such as a written constitution,
legislative enactments, and judicial precedents, the rules of recognition can be quite complex and
require a hierarchy where some types of rules overrule others. Hart holds this out as the remedy for
uncertainty.

Criticism

Prof. Hart called a legal system a system of Rules. Whether a legal system is a system of rules only?
Prof. Ronald Dwarkin criticized Prof. Heart on this point. Dwarkin pointed out that the legal system
does not comprise only rules but it consists of principles also. So to call the legal system of rules is
not proper. Sometimes those principles are more important than those rules, e.g. Principle of Natural
Justice, which is elaborated in Maneka Gandhi vs. Union of India. The judiciary positively
incorporates the Principle of Natural Justice. So what Dwarkin says is also an important one. If rules
and principles come into conflict then principle gets primacy with overriding effect overrules.

Justice Coke in Bohman’s Case (1610), contended that “if it is found that the law made by Parliament
is contrary to certain moral principle then such law could be null and void”.
 Salmond’s Theory of Jurisprudence
John William Salmond (1862-1924) was a scholar born in England. He earlier worked as a
barrister and solicitor of the Supreme Court of New Zealand and also as a professor and
finally served as a judge in the same the Supreme Court
Salmond has explained his theory in his book "Jurisprudence or The Theory of The Law" in
which he mentions "the term jurisprudence means the science of law" in its widest sense. In
this, he describes three branches of Jurisprudence

 Civil jurisprudence – by this he means, law of the land, which gives the wholesome
principles in the tribunals of the state;
 International Jurisprudence – this is the science of international law which deals with the
rules prevails between the states; and
 Natural Jurisprudence - this is the science of natural law (Jus Naturale).

Salmond further narrowed down the definition and iterates that-"Jurisprudence as the
science of civil law"; by this statement he negated the existence of the other two branches
(International and Natural Jurisprudence). He gives the reasoning that whenever one speaks
of Law without any qualification, he means the laws administered in tribunals of the
state.[9] Similarly, when one mentions jurisprudence without any specification, it implies to
Civil Jurisprudence only
He further divides the practical or concrete legal study of civil jurisprudence into three
branches which were systematic, historical, and critical jurisprudence.
(i) Systematic (legal exposition) deals with the present, it describes the present legal
system;
(ii) Historical (legal history) deals with the past, the legal system in the process of its
historical development; and
(iii) Critical (the science of legislation) deals with the ideal future, rather than focusing on the
law as it is or has been, it expounds on the law it ought to be.
After narrowing jurisprudence to civil jurisprudence, Salmond proceeded to further narrow it
down and said that jurisprudence doesn't include the complete civil law, rather it only
includes a part of it. He mentions a division of theoretical and practical legal study of civil
jurisprudence, where he only includes the theoretical part of it as a concern. He finally
defines Jurisprudence as-
“It is the science of the first principles of the civil law”.
Though he denied the possibility of any kind of logical and hard line between the first
principles and the rest of the portion of the legal system, Salmond has conclusively said that
Jurisprudence (i) is not an elementary outline of the concrete legal system and;
(ii) is not the general jurisprudence as held by other writers.
However, Salmond has negated the complete exclusion of the historical and critical aspects,
he admits that it is not possible to give an analytical picture of law after the total exclusion of
historical and critical aspects.
Apart from his theory, Salmond has also signified the practical utility of the subject of
jurisprudence. He compared the intrinsic interest of the serious scholars of Mathematics and
Jurisprudence and pointed that just like a mathematician investigates the number theory
without the aim of having any practical use but by the reason of fascination, Jurisprudence
has its intrinsic interest for its subject. The researches in Jurisprudence may evolve the
whole political and social thought.

Criticism
The major criticism of Salmond's theory of Jurisprudence was majorly based on the omission
of natural jurisprudence and international jurisprudence. The rise of the functional approach
and putting a constraint on the limitation of the scope of jurisprudence in not viable. He tried
to demarcate the boundary of the subject but he failed to provide an accurate and scientific
definition.The same words Salmond gave in his definitions could mean differently, as a
result, some vague notions might end up under the ambit of Jurisprudence.
Modern world relevance of Salmond’s Theories
Along with the theory defining the subject matter of Jurisprudence, many other theories were
given by John Salmond for the important subject matters of the Jurisprudence.

Legislation
Salmond dissociates legislation between supreme and subordinate. He observes supreme
legislation proceeds from sovereign powerin the state and cannot be repealed or controlled
by any other legislative authority whereas subordinate legislation proceeds from the authority
other than sovereign authority and is dependent for its existence on sovereign authority.
In this regard, division of powers in India prevents the accumulation of power in the hands
ofa single legislation and provides certain jurisdiction for the Central Government and the
state governments. Indian Constitution denies the theory partially by giving the power of
revision of any legislation made by such sovereign authority to the Indian Courts, and the
court has the power to nullify the complete or partial laws inconsistent with the fundamental
rights.

Rights and Duties

Salmond defines a right as an interest recognized and protected by the rule of right. It is any interest,
respect for which is a duty, and the disregard for which is wrong. The Supreme Court of India defines
legal rights as follows:
“In a strict sense, legal rights are correlative of legal duties and are defined as interests which the law
protects by imposing corresponding duties on others. But in a generic sense, the word "right" is used
to mean an immunity from the legal 'power of another immunity is exemption from the power of
another in the same way as liberty is exemption from the right of another.”
Salmond defines duty as an act of which every citizen is obliged to perform in furtherance of
protecting the rights of others. He considers it of two types: legal and moral. Indian Constitution also
includes fundamental duties of a citizen which can be termed as legal duties, according to the types
of duties provided by Salmond.
Even after so much criticism and development in Jurisprudence, John Salmond has maintained its
significance, many a time Supreme Court Judges has quoted his theories of jurisprudence.
In a case of State of Maharashtra v. Reliance Industry Ltd.,with respect to concept of ownership, it
was observed:
“According to Sir John Salmond, the owner of a material object is he who owns a right to the
aggregate of its use. Ownership denotes the relation between a person and an object forming the
subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being
good against all the world and not merely against specific persons.”
Similarly, in the case of Subramanian Swamy vs. Union of India, he was quoted while analyzing
the ‘rule of action’ as follows:
“…This arduous task of protecting the law abiding citizens and punishing the law breakers vests with
the State which performs it through the instrumentality of law. It is for this reason that Salmond has
defined law as a 'rule of action' regulating the conduct of individuals in society. The conducts which
are prohibited by the law in force at a given time and place are known as wrongful acts or crimes,
whereas those which are permissible under the law are treated as lawful. The wrongdoer committing
crime is punished for his guilt under the law of crime.”
Conclusion
John Salmond has been one of the major contributors to the modern jurisprudence (after the
18th century). He was a jurist, judge as well as a professor. He gave his theory on the extent of the
subject matter of Jurisprudence as well as gave his theories even in smaller matters of
Jurisprudence. His theory of Jurisprudence has been criticized for being much narrow and inaccurate
but he has given significant insight on different jurisprudences. Though better definitions of
Jurisprudence were given by different jurists, it did not decrease the importance of Salmond's
theories. Jurists, as well as judges including Deepak Mishra, while giving the judgment on the
Subramanian Swamy, quoted the theory of Salmond for clarification. This in itself proves the
relevance of his theories in this modern world.
 SOURCES OF LAW UNDER JURISPRUDENCE
o Primary Sources Of Jurisprudence
A- CUSTOMS OR CUSTOMARY LAW: Custom is the most ancient of all the sources
of law and has held the most important place in the past, though its importance is
now diminishing with the growth of legislation and precedent. The customs may be
divided into two classes:
a) Customs without sanction: are those customs which are non-obligatory and
are observed due to the pressure of public opinion. These are called as
“positive morality”.
b) Customs having sanction: are those customs which are enforced by the
State. It is with these customs that we are concerned here. These may be
divided into two classes:
(i) Legal Customs: These customs operate as a binding rule of law. They have been
recognised and enforced by the courts and therefore, they have become a part of the
law of land. Legal customs are again of two kinds:
(a) Local Customs: Local custom is the custom which prevails in some definite
locality and constitutes a source of law for that place only. Thus, local customs may
be divided into two classes:
– Geographical Local Customs
– Personal Local Customs
(b) General Customs: A general custom is that which prevails throughout the country
and constitutes one of the sources of law of the land.
(ii) Conventional Customs: These are also known as “usages”. These customs are
binding due to an agreement between the parties, and not due to any legal authority
independently possessed by them. Before a Court treats the conventional custom as
incorporated in a contract, following conditions must be satisfied:
1) It must be shown that the convention is clearly established and it is fully known to
the contracting parties. There is no fixed period for which a convention must have
been observed before it is recognised as binding.
2) Convention cannot alter the general law of the land.
3) It must be reasonable
Requisites of a Valid Custom
1) Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it
must be ancient.
2) Certainty: The custom must be certain and definite, and must not be vague and
ambiguous.
3) Reasonableness: A custom must be reasonable. It must be useful and convenient
to the society.
4) Compulsory Observance: A custom to be valid must have been continuously
observe without any interruption from times immemorial and it must have been
regarded by those affected by it as an obligatory or binding rule of conduct.
5) Conformity with Law and Public Morality: A custom must not be opposed to
morality or public policy nor must it conflict with statute law. If a custom is
expressly forbidden by legislation and abrogated by a statute, it is inapplicable.
6) Unanimity of Opinion: The custom must be general or universal. If practice is left to
individual choice, it cannot be termed as custom.
7) Peaceable Enjoyment: The custom must have been enjoyed peaceably without
any dispute in a law court or otherwise.
8) Consistency: There must be consistency among the customs. Custom must not
come into conflict with the other established customs.
B- Judicial Decision or Precedents
Judicial precedents are an important source of law. They have enjoyed high authority
at all times and in all countries. This is particularly so in the case of England and other
countries which have been influenced by English jurisprudence. The principles of law
expressed for the first time in court decisions become precedents to be followed as
law in deciding problems and cases identical with them in future. The rule that a court
decision becomes a precedent to be followed in similar cases is known as doctrine of
stare decisis.
High Courts
The decisions of High Court are binding on all the subordinate courts and tribunals
within its jurisdiction.
The decisions of one High Court have only a persuasive value in a court which is
within the jurisdiction of another High Court. But if such decision is in conflict with any
decision of the High Court within whose jurisdiction that court is situated, it has no
value and the decision of that High Court is binding on the court. In case of any
conflict between the two decisions of co-equal Benches, generally the later decision is
to be followed.
Supreme Court
The expression all courts‘ used in Article 141 refers only to courts other than the
Supreme Court. Thus, the Supreme Court is not bound by its own decisions.
However, in practice, the Supreme Court has observed that the earlier decisions of
the Court cannot be departed from unless there are extraordinary or special reasons
to do so (AIR 1976 SC 410). If the earlier decision is found erroneous and is thus
detrimental to the general welfare of the public, the Supreme Court will not hesitate in
departing from it.
Kinds of Precedents
Declaratory and Original Precedents:
1) A declaratory precedent is one which is merely the application of an already
existing rule of law. A declaratory precedent is as good a source of law as an
original precedent.
2) An original precedent is one which creates and applies a new rule of law. In the
case of a declaratory precedent, the rule is applied because it is already a law. In
the case of an original precedent, it is law for the future because it is now applied.
3) In the case of advanced countries, declaratory precedents are more numerous.
The number of original precedents is small but their importance is very great. They
alone develop the law of the country. The legal authority of both is exactly the
same.
4) Persuasive Precedents: A persuasive precedent is one which the judges are not
obliged to follow but which they will take into consideration and to which they will
attach great weight as it seems to them to deserve. A persuasive precedent,
therefore, is not a legal source of law; but is regarded as a historical source of
law.Thus, in India, the decisions of one High Court are only persuasive precedents
in the other High Courts.
5) Absolutely Authoritative Precedents: An authoritative precedent is one which
judges must follow whether they approve of it or not. Its binding force is absolute
and the judge’s discretion is altogether excluded as he must follow it. Such a
decision has a legal claim to implicit obedience, even if the judge considers it
wrong. An authoritative precedent is a legal source of law.
Doctrine of Stare Decisis
The doctrine of stare decisis means “adhere to the decision and do not unsettle things
which are established”. It is a useful doctrine intended to bring about certainty and
uniformity in the law. Under the stare decisis doctrine, a principle of law which has
become settled by a series of decisions generally is binding on the courts and should
be followed in similar cases. In simple words, the principle means that like cases
should be decided alike. This rule is based on public policy and expediency.
Ratio Decidendi
When we say that a judicial decision is binding as a precedent, what we really mean is that a
rule or principle formulated and applied in that decision must be applied when similar facts
arise in future. This rule or principle is the ratio decidendi which is at the centre of the
doctrine of precedent. The expression ratio decidendi has different meanings. The first
meaning which is the literal translation of the expression is ‘the reason for deciding’. Ratio
decidendi is as ‘the rule of law proffered by the judge as the basis of his dicisions.
Where an issue requires to be answered on principles, the principles which are deduced by
way of abstraction of the material facts of the case eliminating the immaterial elements is
known as ratio decidendi and such principle is not only applicable to that case but to other
cases also which are of similar nature.
It is the ratio decidendi or the general principle which has the binding effect as a precedent,
and not the obiter dictum
Obiter Dicta
The literal meaning of this Latin expression is “said by the way”. The expression is used
especially to denote those judicial utterances in the course of delivering a judgement which
taken by themselves, were not strictly necessary for the decision of the particular issue
raised. These statements thus go beyond the requirement of a particular case and have the
force of persuasive precedents only. The judges are not bound to follow them although they
can take advantage of them. They some times help the cause of the reform of law.
C- Statutes or Legislation
Legislation is that source of law which consists in the declaration or promulgation of legal
rules by an authority duly empowered by the Constitution in that behalf. It is sometimes
called Jus scriptum (written law) as contrasted with the customary law or jus nonscriptum
(unwritten law). Statute law or statutory law is what is created by legislation, for example,
Acts of Parliament or of State Legislature. Legislation is either supreme or subordinate (
delegated ).
Supreme Legislation is that which proceeds from the sovereign power in the State or which
derives its power directly from the Constitution. It cannot be replealed, annulled or controlled
by any other legislative authority.
Subordinate Legislation is that which proceeds from any authority other than the sovereign
power. It is dependent for its continued existence and validity on some superior authority.
The Parliament of India possesses the power of supreme legislation.
o SECONDARY SOURCE OF INDIAN LAW
(i) Justice, Equity and Good Conscience
In the absence of any rule of a statutory law or custom or personal law, the Indian courts
apply to the decision of a case what is known as “justice, equity and good conscience”,
which may mean the rules of English Law in so far as they are applicable to Indian society
and circumstances.
In its modern version, justice, equity and good conscience as a source of law, owes its origin
to the beginning of the British administration of justice in India. The Charters of the several
High Courts established by the British Government directed that when the law was silent on
a matter, they should decide the cases in accordance with justice, equity and good
conscience. Justice, equity and good conscience have been generally interpreted to mean
rules of English law on an analogous matter as modified to suit the
Indian conditions and circumstances. The Supreme Court has stated that it is now well
established that in the absence of any rule of Hindu Law, the courts have authority to decide
cases on the principles of justice, equity and good conscience.
 Sir Henry Maine
Maine's contribution to historical jurisprudence is so great that he is labeled as 'Social
Darwinist' for he envisaged a social order wherein the individual is finally liberated from the
feudalistic primitive bondage.

Maine's Contribution to Historical Jurisprudence

Historical jurisprudence would always remain indebted to Sir Henry Maine for his substantial
contribution to the juristic thought. He improved upon Savigny's legal theory which explained
inter-relationship between community and the law and also recognised the role of legal
fictions, equity and legislation in the evolution of law. While Savigny had confined his study
only to Roman law and its applicability in Germany, Maine looked it from a broader perspective
and studied the legal systems of different communities for his comparative research on
evolution and development of law.

Four Stages of Development of Law

The supporters of the historical school of jurisprudence have traced the evolution and
development of law through four major stages. They are as follows-

1. Devine Law- In the beginning law originated from Themes, which meant the Goddess of
Justice. It was generally believed that while pronouncing judgments the King was acting under
the divine inspiration of the Goddess of Justice. Themestes were the awards pronounced by
Goddess of Justice (themes) to be executed by the king as a custodian of justice under divine
inspiration. Thus the king was merely the executor of judgment of God.

2. Customary Law- Next the recurring application of judgments led to uniform practice which
crystallised into customary law to be followed in the primitive societies. The importance of
customs as a source of law has been underlined by Sir Henry Maine when he observed that
‘custom is to society what law is to State’.

3. Priestly class as a sole repository of customary law- In the next stage of development of law,
the authority of the King to enforce and execute law was usurped by the priestly class who
claimed themselves to be learned in law as well as religion. The priestly class memorised the
rules of customary law because the art of writing had not developed till then. They applied and
enforced the customary law.

4. Codification- The era of codification marks the fourth and perhaps the last stage of
development of law. With the discovery of the art of writing, a class of learned men and jurists
came forward to denounce the authority of priests as law-givers. They advocated codification
of law to make it accessible and easily knowable. This broke the monopoly of priestly class in
matters of administration of law. The ancient Hindu Code of Manu, Hebrew Code, Solon's Attic
Code, Twelve Tables in Rome, the Codes of Hammurabi etc. are some of the examples of
such law Codes.
 Ownership
Jurists have defined ownership in different ways. All of them accept the right of ownership as
the complete or supreme right that can be exercised over anything. Thus, according to
Hibbert ownership includes four kinds of rights within itself.
• Right to use a thing
• Right to exclude others from using the thing
• Disposing of the thing
• Right to destroy it.
Austin’s definition Austin while defining ownership has focused on the three main attributes
of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
• Indefinite User
• Unrestricted Disposition
• Unlimited Duration
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank
etc. are some example of the fact that the ownership can be cut short by the state for public
purpose and its duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership as plenary control
over an object. According to him an owner has three rights on the subject owned
1. Possession
2. Enjoyment
3. Disposition
Planetary control over an object implies complete control unrestricted by any law or fact.
Thus, the criticism levelled against Austin’s definition would apply to that given by Holland in
so far as the implication of the term “plenary control” goes.
Salmond’s Definition: According to the Salmond ownership vests in the complex of rights
which he exercises to the exclusive of all others. For Salmond what constitute ownership is a
bundle of rights which in here resides in an individual. Salmond’s definition thus point out two
attributes of ownership:
• Ownership is a relation between a person and right that is vested in him
• Ownership is incorporeal body or form
SUBJECT MATTER OF OWNERSHIP
Normally ownership implies the following:
1. The right to manage
2. The right to posses
3. The right to manage
4. The right to capital
5. The right to the income
CHARACTERISTICS OF OWNERSHIP
An analysis of the concept of ownership, it would show that it has the following
characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited.
Ownership can be limited by agreements or by operation of law.
The right of ownership can be restricted in time of emergency. An owner is not allowed to
use his land or property in a manner that it is injurious to others. His right of ownership is not
unrestricted.
The owner has a right to posses the thing that he owns. It is immaterial whether he has
actual possession of it or not.
KINDS OF OWNERSHIP
There are many kinds of ownership and some of them are
Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over
tangible things. Corporeal things are those which can be perceived and felt by the senses
and which are intangible. Incorporeal ownership includes ownership over intellectual objects
and encumbrances.
Trust and Beneficial Ownership
Trust ownership is an instance of duplicate ownership. Trust property is that which is owned
by two persons at the same time. The relation between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other. The ownership
is called beneficial ownership. The ownership of a trustee is nominal and not real, but in the
eye of law the trustee represents his beneficiary. In a trust, the relationship between the two
owners is such that one of them is under an obligation to use his ownership for the benefit of
the other. The former is called the trustee and his ownership is trust ownership. The latter is
called the beneficiary and his ownership is called beneficial ownership.
Legal and Equitable Ownership
Legal ownership is that which has its origin in the rules of common law and equitable
ownership is that which proceeds from the rules of equity. In many cases, equity recognizes
ownership where law does not recognize ownership owing to some legal defect. Legal rights
may be enforced in rem but equitable rights are enforced in personam as equity acts in
personam. One person may be the legal owner and another person the equitable owner of
the same thing or right at the same time. The equitable ownership of a legal right is different
from the ownership of an equitable right. The ownership of an equitable mortgage is different
from the equitable ownership of a legal mortgage.
Vested and Contingent Ownership
Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership it is conditional.
Sole Ownership and Co-ownership
Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole ownership. When the ownership is vested in a single person, it is
called sole ownership; when it is vested in two or more persons at the same time, it is called
coownership, of which co-ownership is a species. For example, the members of a
partnership firm are co-owners of the partnership property. Under the Indian law, a co-owner
is entitled to three essential rights, namely
1. Right to possession
2. Right to enjoy the property
3. Right to dispose Co-ownership and Joint Ownership
Absolute and Limited Ownership
An absolute owner is the one in whom are vested all the rights over a thing to the exclusion
of all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in
a person without any restriction, the ownership is absolute. But when there are restrictions as
to user, duration or disposal, the ownership will be called a limited ownership. For example,
prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited
ownership over the estate because she held the property only for her life and after her death;
the property passed on to the last heir or last holder of the property. Another example of
limited ownership in English law is life tenancy when an estate is held only for life.
 Possession
The Concept of Possession- its meaning, elements, kinds and modes of acquisition
The institution of property has a crucial relationship with mankind. There are two
important rights related to property: possession; and ownership.
Regarding possession, as Salmond says, it is the most basic relation between a man
and a thing. Possession of material things is necessary because human life and
human society would rather be impossible without the use and consumption of
material things. As civilization began to progress, the straggle for existence was so
bitter that people began to take possession of certain objects and considered them as
their own.
They began to take pride in the possession of those things and were not prepared to
allow outsiders to interfere with them. They were determined to exercise continuous
control to the exclusion of all others. And from a humble beginning, the concept
began to grow and now much progress has been made in this connection. From the
legal point of view also it is a very important concept. Innumerable legal
consequences flow from the acquisition and loss of possession and thus, it is said
that there is no concept in the field of law as difficult as that of possession.
Meaning of the term possession
Several jurists have defined the term ‘possession’ differently, some of the notable
definitions are as follows: SalmondThe possession of a material object is the
continuing exercise of a claim to the exclusive use of it. Thus, possession involves
two things: (1) claim of exclusive user; and (2) conscious or actual exercise of this
claim, that is, physical control over it. The former is the mental element called as
animus possessionis and the later is the physical element called as corpus
possidendi. [iii] Federick Pollock He pointed out that in common parlance a man is
said to possess or to be possession of anything of which he has apparent control, or
from the use of which he has the apparent power of excluding others.
Kinds of Possession Following are the various kinds of possession:
(a) Corporeal and Incorporeal Possession
Corporeal possession is the possession of material or tangible objects both movable
like books, cattle, watch and immovable like house, land, etc. And incorporeal
possession means possession of immaterial or intangible objects like copyright,
patent, goodwill, reputation, etc. Corporeal possession consists of both the elements,
corpus and, but actual use of the thing is not necessary, for example, a person can
keep his ring locked in a safe and never use it but still he will be said to be in
possession of the ring.
(b) Mediate and Immediate Possession
Mediate or indirect possession is the possession of a thing through another person.
For example, A purchases a watch through an agent or servant, he has mediate
possession of it so long as the watch remains with the agent or servant. But if A goes
to the market himself and buys the watch, he is in immediate possession of it.
Salmond has given three categories of mediate possession as follows: Possession
acquired through an agent or servant;.
(c) Concurrent or duplicate possession-
As mentioned above, exclusiveness is the essence of possession. It is not possible
that two persons have an independent as well as adverse claim to possession of the
same thing at one time. But it is possible that two persons have concurrent claims to
the possession of the same thing at the same time, that is, their claims are not
mutually adverse. And in such cases the possession is called as concurrent or
duplicate possession. The most important example of concurrent possession is what
Salmond calls as mediate and immediate possession, like of landlord and tenant
respectively or of bailee and bailor, etc.
(d) Constructive Possession
It simply means that though the person is not in actual physical contact or control over
the thing but he has the power as well as the intention to deal with it at his will. An
illustration is of constructive possession is when goods sold by one person to another
are stored in a warehouse and the purchaser doesn’t take the actual physical control
over the goods but only the key of the warehouse is given to him by the seller. Here,
the purchaser is in constructive possession of those goods.
(e) Adverse Possession
It means that a person who doesn’t have legal title to a property, usually a land,
acquires ownership of it based on continuous possession or occupation of the land
without the permission of its legal owner. If the adverse possession continues,
undisturbed, for the prescribed period (which is 12 years in India) then the title of the
real owner comes to an end and the possessor becomes the owner thereof.
 Continuity of possession for the prescribed period
• Adequate publicity, that is, the possession must not be held in secrecy but openly,
• Peaceful or undisturbed possession for the prescribed period Modes of Acquisition
of Possession There are three modes of acquiring possession as follows:
(a) By Taking
it is the acquisition of possession without the consent of the previous owner and it
may either be rightful or wrongful. For example, as Keeton says, where an inn-keeper
seizes the goods of his guest, who has failed to pay his bill, there is acquisition of
possession by rightful taking. But where a thief steals something, he acquires
possession wrongful taking. But it is not necessary for acquisition of possession by
taking that the thing must be already in the possession of some other person.
(b) By Delivery
it is the acquisition of possession with the consent of the previous owner and is of two
types, actual and constructive. Actual delivery is the physical or actual transfer of a
thing from the hands of one person to another. It is of two kinds, one in which the
owner still has a mediate possession like when A lends his book to B, and the other in
which the owner does not retain even the mediate possession like when A sells the
book to B.
c) Operation of law
Possession can be acquired by the operation of law also like in case of adverse
possession and of succession.
Conclusion
It can be safely concluded that possession is the most fundamental relation between
a man and a thing, but one of the most difficult concepts of the field of law. It is a very
vast concept consisting of various kinds and modes of acquisition which deal with the
acquisition of res nullis too.
 Concept of Rights
A legal right is an “interest which is protected and recognized by the rule of law. It is an interest
which has its duty and disregard of which is wrong”.
Essential conditions of legal right
According to Salmond, there are five essential conditions that need to be fulfilled:
• The person of inheritance/ Subject of right:
He shall be the person who is the owner of the right. He is the subject of the legal right. Such
a person is called a person of inheritance. Example:-Y purchase a van for Rs 20,000. Here Y
is the subject of the right.
Even in the case when the property is bequest to the unborn child, the unborn child is the
owner of the property even though he is uncertain.
• The subject of duty/ the person of incidence:
It is the duty of another person or persons to respect and recognize the right of the person.
Such a person who has a legal duty is called a person of incidence. Example- If A has a legal
right against B, then it is the duty of B to respect the right of A.
• Contents or Subject Matter of legal right:
The subject matter of legal right is an essential element. It deals with the subject matter of the
legal right. It is related to do something or to refrain from doing certain acts or forbearance. It
obligates the person to forbear or act in favour of the person possessing a legal right.
Example-Y purchase a van for Rs 20,000. Here Y is the subject of the right. The subject matter
( Y) has a legal right and he can exclude others.
• The object of the legal right:
The object of the legal rights is a thing or object over which the legal right is exercised.
Example- A purchases the car for Rs 1,00,000. Here the car is the object.
• Title of the legal right:
The title is the process by which the right is vested or conferred on the person. It is certain
events by which right is acquired from its previous owner. Example- By purchase or gift or will
etc.
Theories Related To The Legal Right
Interest Theory
Developed by: Rudolf Von Jhering
Rudolf Von Jhering stated that Legal right is the legally protected interest. He gave importance
to the interest of the people rather than the will of the people. The main objective is to protect
the interests of the people and to avoid the conflict between the individual interest.
Their interest exists in the life of the community itself. They are not created by any statute.
Salmond positive view:
He supported this theory but he stated that its enforceability is an essential condition.
Salmond criticism:
He criticized the interest theory on the ground that the interest is not protected by the state. In
order to confer a legal right, it is essential that interest should be protected and recognized by
the state.
Will theory
Supported by: Kant, Hegel, Hume
According to his theory “rights is an inherent attribute of the human will”. The purpose of the
law is to permit the expression of free will. The subject matter is derived from the human will.
Rights are defined in the terms of will by Austin, Pollock and Holland. According to John Locke,
“the basis of the right is the will of the individual”. According to Puchta the legal rights gives
power to the person over the object which by means of right can be subjected to the will of
the person who is enjoying the right.
Criticized by: Duguit
According to him the basis of the law is not a subjective will but it is an objective will. The
purpose of the law is to protect only those acts which further support social solidarity. He
further stated that the theory of subjective right is a metaphysical abstraction.
Classification of Legal Right
Right in rem and Right in Persona
The right in rem is the right available against society at large. For Example:- a crime
committed under I.P.C because it is a crime committed against the state.
Right in Persona means right that is available against an individual. Example breach of
Contract. When there is a breach of contract, the party who has performed the act files the
suit against the breaching party. Right in Persona is temporary in nature, which can be
converted into right in rem. Right in rem is a permanent in nature.
Positive Rights and Negative Rights
A positive right is a right when some action needs to be done by the person who has the
corresponding duty. The person on whom the duty lies must perform some positive acts.
The negative rights are the rights which omit the person from performing certain acts. Negative
rights correspond to negative duty. The person on whom such duty is imposed is restrained
from performing certain acts.
Personal and Proprietary Rights
Personal rights are the right to respect the owner of the right. The personal right has no
economic value and this right is related to personal status or well being. Example the right to
live with dignity, the right to freedom of speech and expression.
The proprietary right is given in respect of the owner of the property. These rights are rights
which has some monetary value or economic value and constitute the estate of the person.
Example-patent rights, right to land, debt etc.
Perfect and Imperfect right
Perfect rights are protected and recognized by law and the suit can be instituted in the court
against the wrongdoer for the breach of it. Example: A has taken the loan from B. B has the
duty to pay the loan and A has the perfect right to claim the loan amount. If B fails to pay then
A has the right to file the suit in the court.
Imperfect rights are those rights which are neither recognized nor protected by law. Example:
if the loan becomes time-barred, then he can claim his money back but it cannot be enforced
by law.
Principal and Accessory Rights
The principal right is the most important rights. They are the basic right that is vested on an
individual.
The accessory right is the consequential or incidental right. They are not important but they
are ostensible to basic right.
Right in Re-aliens and Right in Re-propria
Right in Re-aliena is the right available against the property of another person. Example- The
right of easement. It is the result of jurisprudence concept of dominant heritage and servient
heritage.
Right in Re-Propria is the right available in respect of one’s own property. It results in
absolute ownership. This is the result of jurisprudence concept of ownership.
Corporeal and Incorporeal right
Both the rights are protected by law. The corporeal right is the rights over tangible objects or
material objects. Corporeal rights are having the rights over the objects which can be seen,
touch or perceived. Example: I purchase the watch. The watch has physical existence so I
have a corporeal right over it.
The incorporeal right is the right over the object which cannot be seen or touched. Example
right to reputation.
Legal and Equitable Right
Legal rights are protected by the common law i.e Court of England. Common law depends
upon the usage and custom.
Equitable rights are protected by the equity court or the court of chancellor. The basic
principle is natural justice, equity, justice and good conscience.
 Schools Of Feminism
Feminist jurisprudence encompasses diverse perspectives aimed at understanding and
addressing the systemic inequalities women face within legal systems. Among these
perspectives, three significant schools of thought have emerged: Liberal Feminism,
Radical Feminism, and Cultural Feminism.
Each of these schools offers unique insights into the nature of gender oppression and
proposes distinct strategies for achieving gender equality within legal and social frameworks.
1. Liberal Feminism
Originating from the 18th century, liberal feminism emphasises individualism and equality
through legal and political reform. Advocates of this school argue that women face
discrimination due to societal beliefs in their inferiority, leading to barriers to accessing
opportunities in politics and economics. Liberal feminists advocate for gender-blind laws and
equal treatment based on universal human rights principles. They seek to dismantle legal
and social barriers that hinder women’s participation in public life.
2. Radical Feminism
Radical feminism challenges the patriarchal structures that perpetuate male dominance and
oppression of women. Viewing society as fundamentally patriarchal, radical feminists seek to
abolish this system to liberate everyone from injustice. They critique the objectification of
women, raise awareness about issues like rape and violence, and challenge traditional
gender roles. Radical feminists argue that men, as a class, benefit from the oppression of
women and advocate for a radical reordering of society to eliminate male supremacy.
3. Cultural Feminism
Cultural feminism diverges from liberal feminism by focusing on celebrating and valuing
women’s differences from men. Rejecting the idea of assimilating women into patriarchal
structures, cultural feminists advocate for changing institutions to accommodate and reflect
values traditionally associated with femininity, such as empathy and nurturing. This
perspective emphasises female attributes and advocates for independence and the creation
of institutions that recognise and promote women’s unique contributions.
 Feminist theories

The liberal equality theory

Liberal feminism is a specific approach that deals with the achievement of equality
between men and women and mainly focuses on the power of an individual to call off
discriminatory practices against women. Liberal feminists’ goal is to encourage an individual
to her instincts and abilities to help men and women to become twins in the eyes of law as
well as society. The key difference between contemporary liberals and bygone liberal
feminists is their beliefs about freedom. A contemporary liberal feminist holds on that the
personal liberty and political autonomy of women must be supported to achieve equality in
democratic liberal societies. A bygone liberal feminist, on the contrary, claims that feminism’s
political mission is restricted to repelling laws that treat men and women differently, and such
a task has already been accomplished by them. Regardless of this catfight, their ultimate aim
is to organize women into groups that can pronounce and raise awareness at huge levels.

The sexual difference theory

The theory of sexual difference carries arguments of gender feminism. It argues that
the root of women’s maltreatment lies somewhere in the intersection of biology, psychology,
and culture. According to it, the cultural characteristics linked with femininity are more superior
and powerful than that of masculinity in many aspects, and therefore, men and women should
spin their respective rational web.
The dominance theory

Dominance feminism is a theory of feminists that discards the approaches of equality

and difference feminism. The feminists crying out for equality seek to have systematically
equal access to all legal, traditional, and social male privileges for women. On the other side,
feminists argue for gender differences and seek different legal and social treatment for women
to compensate for past inequalities. Dominance theory, in some ways, supports feminists who
fight for gender discrimination because as per this theory male social dominance is the result
of well-established inequality between men and women. Dominance feminism gives credit to
male concentrated efforts for women’s inferior societal position. It claims that males controlled
women through social, sexual, and physical domination. Socially, they mastered women by
objectifying and exerting patriarchal control over them, while making them legally powerless.
Sexually, they imposed threats of forced sex, using cat-calls, making sexual advantage in the
workplace, and moulding them as mere sex objects. As a Hindu shlok says, “naari taran ki
Adhikari” – a woman is worthy to get beaten, implies men’s physical torture over women.
Dominance feminism is also known as Catharine A. MacKinnon’s feminism.

The anti-essentialist theory

Essentialism can be termed as a collection of fundamental traits which are sufficient and
necessary conditions to make things similar. It carries two steps, the first is differentiating
between objects by considering the specific parts, and the second is to characterize the things
within a sole concept, to provide a better understanding of essentialism. Feminist essentialism
can be imprecisely defined as an assumption of universal women’s essence, originated from
psychological and biological traits like beauty, sympathy, nurturance, supportiveness, etc.
Essentialism fancies that all women share the same innate characteristics. Anti-essentialism
simply opposes this assumption. Anti-essentialists defy the use of limited traits such as biology
and psychology in the definition of women because it restricts the possibility of alterations in
women, thus hindering social recognition of women.

The postmodern theory

Postmodern feminism is different from other feminist ideologies. It begins with the thought that
modern feminists are overly focused on gender differences between men and women, and
failed to recognize differences within each gender. Moreover, it claims that gender has been
developed by perception-based discussions, that we adopted with the passing time. Apart
from these, postmodern feminists claim their key element is that variants of patriarchy are due
to women’s social characteristics. These views were framed within the theory of
intersectionality which attempts to examine how social, biological, and cultural classes
simultaneously interact with each other.

Conclusion
The three primary schools of feminist jurisprudence offer distinct perspectives on the nature
of gender inequality and strategies for achieving gender justice. While liberal feminism
emphasises equality through legal reform, radical feminism challenges patriarchal structures,
and cultural feminism celebrates women’s differences and advocates for institutional change.
By understanding and engaging with these diverse perspectives, societies can work towards
creating more inclusive and equitable legal systems for all individuals, regardless of gender.
Approaches to feminist philosophy of law
 Relationship Between Law and Morality

Law

As per the definition of law: the law is a set of rules and principles that is created by the state to
regulate human conduct. In simple words, the law is a bunch of rules and regulations which are
made by our legislature and in force by the executive so that the people should act according to the
law.

Morality

As per the definition of morality: morality is the set of principles, beliefs and behaviour standards
created and enforced by society.

In simple words, morality is a set of principles and moral values which were created by our ancestors.

Every law made by the legislature doesn’t contain the element of morality. Also, morality is not law.
But there are some laws created by the legislature which contain law and morality in one statute.

Live-in relationship

It is legally right

It is morally wrong

Difference between law and morality

Law Morality

Law is regulated by external sources i.e., by rules Morality regulated by internal sources by the
and regulations conscience of a person

Law is the same for everyone Morality is a subjective concept that can be
different for different people.

There is a set punishment for the violation of laws There is no punishment for an immoral act but a
guilt feeling.

The laws are enforced by the state Morality is regulated by the people of society

Laws are influenced by morality It has emerged before the laws

The laws control the actions of a person legally Morality controls the act of a person
Morally.

Laws made by the legislature are strict. Moral values do not force any person to obey such
rules and moral values.
 THE CONCEPT OF LEGAL PERSONALITY
A person can be defined as an entity recognised by the law as separate and independent, with
legal rights and existence including the ability to sue and be sued, to sign contracts, to receive gifts,
to appear in court either by themselves or by lawyer and generally, other powers incidental to the full
expression of the entity in law1.
Salmond observes that a person is any being whom the law regards capable of rights and duties.
Any being that is so capable is a person whether a human being or not. So by this way we can
distinguishes persons into two natural and legal persons.
A natural person is a being to whom the law attributes the personality in accordance with reality
and truth.
Legal persons are beings to whom the attributes personality by way of fiction, when there is none
in fact.
Legal statues of an animal
The next question is whether an animal can be considered as person. If we take the aforesaid
proposition of Salmond, we can very well say animals are not persons since they are incapable to
hold rights and duties. But some jurist argues that animals are persons since the law prohibits cruelty
towards animals and English law recognises a trust for the benefit of a particular animal. But this
argument is deceptive. The duties of prevention of cruelty to animals and enforcing rusts in their
favour as a public and charitable trust are regarded by the law as duties towards the society itself.
Legal status of dead men
Anything which is capable to hold rights will be considered as a person. If it is so the question that
would arise is whether dead men are persons or not. It is the recognised principle that the
personalities of a human being commences on his birth and cease to exist at death. The only
exception which we can say is personality of unborn child. The rationale behind this rule is a dead
person has no rights and interest. The State must respect a dead person by allowing the body of
person to be treated with dignity and unless it is required for the purposes of establishing a crime to
ascertain the cause of death and be subjected to post-mortem or for any scientific investigation,
medical education or to save the life of another person in accordance with law, the preservation of
the dead body and its disposal in accordance with human dignity.
The legal status of an unborn person.
There is no legal impediment to prevent unborn person to hold the properties of their ascendants. His
ownership is necessarily contingent because he may or may not born. If a person died intestate his
posthumous son is entitled to inherit property and not otherwise but in a case where a person died
testate, the testator can allot his legacy to unborn descendants to any generations. A child in its
mother’s womb is for many purposes regarded by a legal fiction as already born
The right of the unborn person to hold property varies in different jurisdictions. In the United States,
the word “person” does not have the same meaning as “human being” until the process of live birth
has been completed. The Fourteenth Amendment to the Constitution ensures right of equal
protection and due process so that no person is deprived of his life or liberty.
Miscarriage or wilful injury to unborn child is a serious offence in India. A posthumous child may
inherit but if he dies in the womb or is stillborn, his inheritance fails to take effect and no one can
claim through him and the property shall devolve upon the existing living heirs.
Legal persons
A legal person is any subject matter other than a human being to which the law attributes
personality. The thing personified may be termed the corpus of the legal person so created; it is the
body into which the law infuses the animus of a fictitious personality.
The term “legal person” is applied also to natural persons, the argument being that all legal
personality is the creation of law , so that it does not matter whether the substratum of the lawyers
“person” is a human being or something else. This is merely a question of terminology.
There are three classes of juristic person recognised by legal system:-
1) Corporations are constituted by the personification of groups or serious of individuals. The
individuals thus who form the corpus of the legal person are termed its members. The corporation
may be corporation aggregate and corporation sole.
2) The second category is which the corpus or object selected for personation , is not a group of
person, but an institution. Church, Hospitals, Universities, Library etc. The fictious personality is
attributed not to the group of persons connected with the institution but to the institution itself. The
3) The third kind of legal person is that in which the corpus is some fund or estate reserved to
particular uses. Trust estate or property of a dead man or of bankrupt, funds for charity etc is the
examples.
 The Administration of Justices
War and administration of justice are two most essential functions of a state. If the state is not
incapable of performing these two functions. It cannot be called a state. Administration of justice
implies the maintenance of peace and order within a political community by means of physical force
of the state.
MEANING OF JUSTICE
Justice means the proper administration of law.
DEFINITIONS OF ADMINISTRATION OF JUSTICE
Administration of justice is the protection of individual form the unjust unlawful deeds of other
ORIGIN AND GROWTH OF ADMINISTRATION OF JUSTICE.
The origin and growth of administration of justice may be divided in to three stages. FIRST STAGE
First of all the concept of private system of punishment and violent self-help.
SECOND STAGE
When the rise of political states, the private system started to be regulated by the state. The state
provided rules like “an eye for eye” and a “tooth for tooth”.
THIRD STAGE
At that stage, the state enacted its own rules and laws and has sub situated the concept of private
punishment by the administration of civil and criminal justice.
NECESSITY OF ADMINISTRATION OF JUSTICE
Administration of justice is important for the following reasons.
• Necessary for uniformity.
• Necessary for protection of rights.
• Necessary for peace and stability.
• Necessary for integration of society.
• Necessary to check injustice.
• Necessary to educate people.
Justice is divided into following kinds
PUBLIC JUSTICE
Public Justice is that which is administrated by the state using its own tribunals and courts. It is the
relation between court and an individual. When a person turns to courts for restitution, he said to
demand public justice
PRIVATEJUSTICE
Private Justice is Justice between individuals. It is the end for which the courts exist and public
justice is the means through which this end is fulfilled.
CIVIL JUSTICE
Civil justice results from the infringement of a private right. If a right of a person is violated and it only
concerns or directly affects him, it will be death with civil justice.
CRIMINAL JUSTICE
Criminal Justice results from the infringement of a public right. Even if the offence is committed
against one person but the nature of the offence is such that the state steps in and considers it to be
an infringement of a public right.
ADVANTAGES OF ADMINISTRATION OF JUSTICE
Cohesive factor of society.
• Provides stability.
• Provides certainty.
• Provides uniformity.
• Impartiality.
• Represent collective wisdom.
• Security.
• Provides justice.
DISADVANTAGES OF ADMINISTRATION OF JUSTICE.
• Complexity
• Formalities.
• Rigidity
• Justice according to law.
CONCLUSION
In the end we can say that administration of justice is the firmest pillar of the Government. The
modern administration of justice is a natural corollary to the growth in power of political state, which
began to act as a judge to assess liability and impose penalty.
 What is Liability in Jurisprudence?
Liability comes about when someone breaks the law. The law sets out rights and
responsibilities for individuals. It grants legal rights to one person and places
obligations on another. People should not violate the legal rights of others. If someone
does violate these rights, they are considered to have done something wrong and this
leads to liability.

Definition of Liability in Jurisprudence

Defining liability in jurisprudence is not easy, but some legal experts have tried:

Sir John Salmond

Sir John Salmond defines liability as the necessary connection between a wrongdoer
and the remedy for the wrong. In simpler terms, it’s the link between someone who did
something wrong and the solution to make it right.

Markby
According to Markby, the term ‘liability’ describes the situation when a person has a
duty to fulfill, whether that duty is their main responsibility or a secondary or enforcing
one. It’s about having a job to do.

Austin
Austin prefers to use the term ‘imputability’ instead of ‘liability.’ He says that certain
actions, omissions, or acts, along with their consequences, are attributed to the people
who did or didn’t do them. In other words, it’s about holding people responsible for their
actions or inactions.

Kinds of Liability in Jurisprudence

Civil Liability
Civil liability refers to the legal responsibility one person or entity may have towards
another in matters related to non-criminal issues. It arises from violations of civil laws
or regulations, typically involving disputes between individuals or entities over issues
such as contracts, property rights, personal injury, or family matters.

When someone is found civilly liable, they may be required to compensate the injured
party through remedies like monetary damages or specific performance (fulfilling a
contractual obligation). Civil liability cases are usually initiated by private individuals or
organisations seeking compensation or resolution of a dispute.

Criminal Liability
Criminal liability pertains to the legal responsibility an individual or entity bears for
actions that violate criminal laws and regulations established by the government.
Crimes are generally offences against society as a whole and the government,
represented by prosecutors, initiates criminal proceedings.

If someone is found criminally liable, they may face penalties such as fines,
imprisonment, probation, or other punitive measures. The purpose of criminal liability
is to punish the wrongdoer for violating laws that are intended to protect public safety
and order.
 Hohfeld’s Analysis of Legal Rights
Liberty and No-Rights
Liberty is defined as the exercise of a right without the interference of law. By adding all the
rights and duties across relationships, the degree of liberty can be determined. A perfect liberty
is one where no one has any exclusive right to restrain the occurrence of a given act.
Liberty does not mean interference with others like liberty to free speech on public affairs does
not grant a person the right to publish defamation. Likewise one has the liberty to self-defense
against violence but no right is conferred to engage in revenge against the person who inflicted
the injury.
Liberty is exercise of unrestrained activity permitted under law. The primary difference
between liberty and rights in strict sense is that things we do for ourselves are termed as liberty
whereas things which others do in our respect are classified as rights in strict sense.
No-right is the correlative of liberty. It means absence of a right. The term ‘no-right’ basically
implies that a certain person does not have a right against another individual in a particular
respect.
Another example in this context is that when an alien who has no duty not to enter a foreign
country i.e. he has liberty to enter. The authorities have a no-right against him i.e. they may
not have any right in the strict sense though they may still possess a liberty to refrain him from
entering. [i]
Power and Liabilities
Another set of legal rights come in the form of powers. Example- power to make a will, the
power to take legal action against someone, the power to sell a property if the mortgagee does
not receive the money from the mortgagor etc. Power determines legal relations and gives rise
to either ‘authority’ or ‘capacity’. ‘Authority’ is the exertion of power over others whereas
‘capacity’ is power exerted over oneself.
Powers and rights in the strict sense are different because in the latter case, a corresponding
duty always exists which is absent in the former case. Example- right to create a will does not
result in a corresponding obligation for someone else.
Private or Public powers– Private powers are exercised by individuals. Public powers lie with
state agencies or instruments that carry out public functions. Example- powers exercised by
the judiciary, legislature and executive.
Liability is defined as the alteration of a person’s legal rights by the person exercising power.
Examples- the determination of a lease by reentry of the landlord places a liability on the
tenant, one against whom a judgement has been passed is liable to have a decree of execution
etc.
Liability is not concerned with the fruitful or unfruitful result in any given case. For instance, a
person committing a tort is duty bound to pay compensation and is liable for an action to be
brought against him/her as well. However, someone who is not a tortfeasor is not under any
duty to pay compensation but is equally liable for an action to be instituted, that in all probability
will fail, as no grounds exist.
Liability can also be seen as an advantage or benefit. A person who professes to transfer his
property as a gift through the exercise of power, the person entitled to the gift has a liability to
receive it. [ii]
Immunities and Disabilities
Another category of rights is immunity from legal power. The relationship between immunity
and power is identical to that of liberty and right in the strict sense. Immunity implies a complete
lack of liability.
Disability, the correlative of immunity, is better known as inability and signifies the absence of
power. The legal maxim ‘Nemo dat quod non habet’ means that no person can transfer a better
title in property than what is possessed by oneself, is an expression of disability.
 What is Natural Law School Theories
Natural Law School is a philosophical and jurisprudential framework centred on the belief in inherent,
universal principles governing human conduct. Rooted in the idea that these principles derive from
nature, reason and often a divine source, proponents argue for a connection between morality and law.
Theories of Natural Law School can be broadly divided into four classes:
 Ancient theories
 Medieval theories
 Renaissance theories
 Modern theories
Ancient Theories of Natural Law School
Greece
In an era marked by political turmoil in Greece, the concept of natural law took root, challenging the
prevailing notion that law served only the interests of the powerful. Amidst this instability, some
visionary jurists sought to establish universal principles capable of curbing tyranny and arbitrary
governance.
Socrates’ Perspective:
Socrates, a pivotal figure in natural law philosophy, asserted the existence of a moral insight within
humans. According to him, this innate understanding enables individuals to discern between right and
wrong. For Socrates, the foundation of law rested upon human insight, a concept intended to foster
peace and stability in a tumultuous time.
Aristotle’s Contribution:
Aristotle, often regarded as the progenitor of the natural law school, presented a distinctive viewpoint.
Dividing human life into two facets — a creation of God and possessing the quality of reason — Aristotle
argued that through reason, individuals could uncover the principles of natural justice. His contribution
laid a robust groundwork for the organic development of natural law.
Rome
In the Roman context, Stoics drew inspiration from Aristotle but refined the Natural Law School theory,
infusing it with ethical considerations. According to Stoics, the world operates on reason and when
individuals live in harmony with reason, they live naturally. Committed to the idea that the law of nature
binds everyone, Stoics asserted that positive law must align with natural law.
Stoics’ Impact:
The Stoic theory wielded substantial influence during the republican period, prompting jurists to give
increased attention to natural law. This shift helped Romans transition from a rigid lifestyle to a more
cosmopolitan one. Notably, Roman courts occasionally applied natural law principles, especially in
cases involving foreign individuals, contributing significantly to the evolution of Roman law.
In summary, the ancient theories of the Natural Law School, championed by thinkers like Socrates,
Aristotle and the Stoics, not only addressed the challenges of their respective times but also laid
enduring foundations for the interplay between morality and legal principles.
Medieval Period/Middle Ages of Natural Law School
During the medieval period, Catholic philosophers and logicians emerged as torchbearers of a renewed
theory of Natural Law, departing from the earlier orthodoxy of the early Christian fathers. This era
witnessed a logical and systematic reconstruction of Natural Law, providing it with a new intellectual
foundation.
Key Figures of the Medieval Period
Augustine (354-430 A.D)
Augustine, a prominent figure of the medieval period, underscored the integral connection between
justice and the stability of states. In his seminal work, “De Civitate Dei” (The City of God), he
provocatively questioned the very essence of states devoid of justice, likening them to enlarged hands
of robbers. Augustine positioned natural law as an essential component of the Christian foundation,
tracing its origins to the Old Testament and the early church fathers.
Thomas Aquinas (1226-1274)
A towering intellect of the medieval period, Thomas Aquinas significantly contributed to the
development of Natural Law School theory. He posited that unjust laws warrant no obedience,
emphasising that individuals discern natural law through the application of reason and the study of
divine scriptures. Aquinas further delineated a four-fold classification of laws:
 Law of God or External Law: Derived from divine sources.
 Law of Nature: Discerned through observation of the natural world.
 Human Law (Positive Law): Man-made laws that govern societies.
 Law of Divine or the Law of Scripture: Laws revealed through religious scriptures.
Aquinas’s approach synthesised reason and revelation, creating a framework that harmonised faith
and intellect.
Legacy and Impact
The medieval period’s articulation of natural law by figures like Augustine and Aquinas laid the
groundwork for a more logical and systematic understanding. Their departure from earlier Christian
orthodoxy marked a shift towards a nuanced, reasoned exploration of the relationship between law,
justice and divine revelation.
The four-fold classification by Aquinas provided a comprehensive framework that resonated through
subsequent centuries, influencing both philosophical and legal thought. The medieval period thus
stands as a pivotal juncture where natural law underwent a renaissance, paving the way for its
continued evolution in subsequent epochs.
Renaissance Theories of Natural Law School
The Renaissance period, marked by a seismic shift in knowledge and societal values, witnessed the
emergence of groundbreaking ideas and the shattering of traditional foundations. Scientific discoveries
challenged established norms and developments in commerce birthed new classes, fostering the rise
of nationalism. This era catalysed the decline of church dominance, paving the way for theories
supporting state sovereignty. Central to this intellectual revolution were the natural law theories,
grounded in the belief that a social contract underpinned society’s fabric.
Theories of Social Contract
Social contract theories, fundamental to understanding Natural Law School during the Renaissance,
presupposed a state of nature. Key philosophers shaping this discourse included Thomas Hobbes,
John Locke and Rousseau.
Legacy and Impact
The natural law theories of Hobbes, Locke and Rousseau during the Renaissance not only reflected
the intellectual dynamism of the period but also laid foundational principles that influenced political
thought for centuries.
These theories questioned the nature of governance, the relationship between individuals and the state
and the balance between individual rights and societal order. The Renaissance, with its diverse array
of natural law perspectives, remains a pivotal era in the evolution of political philosophy and the
exploration of the social contract.
Modern Theories of Natural Law School
Nineteenth Century: The Decline of Natural Law School Theories
The 19th century marked a significant decline in the prominence of natural law theories. Reflecting the
economic and political transformations in Europe, the prevailing spirit of the eighteenth-century
thought—reason and rationalism—shifted. The challenges posed by the evolving landscape demanded
concrete solutions, leading to a departure from individualism towards a more collectivistic outlook.
The great economic and political changes prompted a rejection of the social contract theory, with many
historians dismissing it as a myth. Modern sciences and political theories asserted that there were no
absolute and unchangeable principles, dealing a substantial blow to the foundations of natural law. The
decline of natural law in the 19th century mirrored the shift in intellectual paradigms, where abstract
and universal principles faced scepticism in light of the complex realities of a rapidly changing world.
Criticisms of Natural Law School
Despite its historical significance, natural law school has not been without its critics. Some argue that
the concept of what is “natural” or “rational” is subject to cultural relativism, undermining the universality
of natural law principles.
Moreover, the application of abstract moral principles to specific legal rules can prove challenging,
raising questions about the practicality of natural law in legal systems. In more secular societies, there
are challenges to the reliance on divine or moral authority as a basis for law, with calls for a more
neutral and inclusive legal foundation.
Conclusion
In conclusion, natural law school stands as a philosophical pillar, positing the existence of universal
principles derived from nature, reason and often, a divine source. Its emphasis on the integration of
morality into legal frameworks has shaped the development of legal systems throughout history. While
subject to criticism, the enduring influence of natural law highlights its profound impact on the ongoing
discourse surrounding the intersection of morality and law.
 SCHOOL OF JURISPRUDENCE
 Analytical School of Jurisprudence
The Analytical School of Jurisprudence focuses on the present form of law. This school is referred to
by various names, such as the Austinian School, named after John Austin who established this
methodology. It is also known as the Imperative School, as it considers law as the direction or
command of the sovereign and the Positivist School, as its proponents are only concerned with law
as it exists presently and not with its past or future.
The term “positivism” was coined by August Comte. John Austin was responsible for developing the
theory of positive law, which was initially founded by Bentham.
One of the primary functions of the Analytical School is to analyse or decompose the law into its
irreducible elements.
John Austin
John Austin, known as the father of English Jurisprudence, defined law as “a command of the
sovereign backed by a sanction.” According to him, the law is the direction of the politically powerful
authority backed by a sanction, which means that the Law-Maker has the authority to make laws and
it supersedes judgments by judges or precedents. He also distinguished law from morality and
divided law into two parts: divine law and human law.
Austin recognised three types of laws: declaratory or explanatory laws, laws of repeal and laws of
imperfect obligation.
Merits
Austin’s definition of law is simple and clear, which lays down exact boundaries within which
jurisprudence has to work. His positivist approach further laid down the foundation of English
jurisprudence. He stated an important universal truth that law is created and enforced by the State.
Demerits
However, his definition of law overlooks customs, which regulated the conduct of the people in early
times. Austin ignores the permissive character of the law and there is no place for judge-made law.
He does not include conventions of the Constitution in his definition of law, although they are the
subject matter of a study in jurisprudence.
Bentham
Bentham, a prominent English philosopher, defined law as a collection of signs indicating the will of
the sovereign in a state regarding the conduct to be followed by a particular person or group of
people subject to the sovereign’s power. He also supported the concept of laissez-faire, which
advocates for minimal State intervention in individuals’ economic activities.
Bentham proposed the principle of utilitarianism, which states that legislation’s appropriate aim is to
promote the greatest amount of utility.
Merits
 Bentham’s legal reforms thinking and enthusiasm ushered in a new era of legal reforms in England.
He contributed new ideas on law-making and legal research.
 His definition of law and analysis of legal terms inspired many jurists, who improved upon it and laid
the groundwork for new schools.
 Bentham also provided solutions to issues regarding the nature of positive law.
Demerits
 Bentham’s theory has some shortcomings, according to Friedmann.
 Firstly, in his attempt to merge materialism with idealism, Bentham underestimated the importance of
individual discretion and flexibility in law application, overestimating the power of the legislator.
 Secondly, the theory does not balance individual interests with those of the community.

 Sociological School of Jurisprudence

The Sociological School of Jurisprudence emphasises the relationship between law and society,
arguing that law is a social phenomenon with a significant impact on society. This school maintains
that every problem and change that occurs in society should be viewed from a legal perspective.
Law as a Social Phenomenon
The Sociological School of Jurisprudence posits that law is a social scenery and it directly or
indirectly relates to society. This school’s main focus is to balance the welfare of the state and the
individual and it believes that the present-day socio-economic problems cannot be solved by existing
laws.
Logic-Based Approach
This school’s approach is based on logic and rationality, rather than metaphysical entities or
divinities.
 Roscoe Pound
Roscoe Pound is known for his functional approach to law, which emphasises the practical
application of law and its role in creating a better society. He also developed the theory of social
engineering, which seeks to balance competing interests in society by protecting various interests
through the law.
Pound’s theory of social engineering classifies interests into three categories: private, public and
social. Private interests include physical integrity, reputation, freedom from violation and freedom of
conscience.
Merits
 The theory has focused on the practical implications of the law and the role of jurists in building a
welfare state.
 It considers the working of law rather than its abstract concepts.
 It regards law as a social institution that can be improved by human effort and to discover and effect
such improvement.
 It lays stress on the social ends of law rather than sanctions.
Demerits
 Classification of interests is not useful because social interests always change with society and
putting them into a specific order will cause them to lose their character and importance.
 The term “social engineering” is used to indicate the problem that law faces, the objectives that have
to be fulfilled and the methods which it will adopt for the purpose of interest.
 There is no ideal scale of values with reference to interest.
 The word “engineering” does not provide a balance between social needs and interests, but only
recognises or approves it.
Dugit’s Theory
Dugit, a sociologist, proposed a theory of social solidarity that emphasises the importance of
interdependence and mutual assistance within a society. According to him, there are two types of
needs in society: common needs, which are fulfilled by mutual assistance and adverse needs, which
are fulfilled by the exchange of services. Social solidarity is necessary to fulfill these needs and it
requires a division of labour to meet all the requirements of the society.
Merits
 Dugit’s theory advocates for peace and solidarity in society.
 He also challenges the concept of state sovereignty by comparing the state to any other
organisation.
 Dugit argues that the functions of individuals in society depend on each other and the aim of the law
is to safeguard interdependence and fulfil all necessities. He stresses that the end result of all human
activities and organisations should be to ensure social solidarity and the formation of law is crucial for
community life.
 Demerits
 Dugit’s theory has some drawbacks.
 He believes that the state’s duty is to ensure social solidarity and is against state sovereignty.
 He sees no difference between public and private law, which may lead to the elevation of state power
above the rest of society.
 The concept of social solidarity is vague and can lead to judicial despotism, as judges will decide
whether an act or rule is furthering social solidarity.
 Historical School of Jurisprudence
The historical school of jurists, which was founded by Friedrich Karl von Savigny (1779-1861), is a
school of thought that describes the origin of law. According to this school, the law was found, not
made. The historical school believes that law is made by people in response to their changing needs
and that it is an outcome of the development of society. The law originates from the conventions,
customs, religious principles and economic needs of the people. The basic source of the historical
school is custom.
Friedrich Carl Van Savigny
Friedrich Carl Van Savigny, a prominent legal scholar from the 19th century, believed that law is a
matter of unconscious and organic growth. His theory emphasised the influence of culture and the
character of the people on the evolution of law. Savigny’s theory also traced the course of the
evolution of law in various societies.
 Law is found, not made. It is a matter of unconscious and organic growth. Law is not universal in its
nature and varies with people and age.
 Custom precedes legislation and is superior to it. The law should always conform to the popular
consciousness.
 As laws grow into complexity, the common consciousness is represented by lawyers who formulate
legal principles. 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
 Savigny’s theory emphasised the influence of culture and the character of the people on the evolution
of law.
 The theory laid the seeds for the development of sociological and evolutionary jurisprudence.
Demerits
 Savigny’s theory is inconsistent as he argued that the origin of law is in the popular consciousness,
but some of the principles of Roman law were of universal application.
 While advocating for the national character of law, he entirely rejected the study of German law and
took inspiration from Roman law.
 Savigny claimed that popular consciousness is the main source of law, which is not always true as
sometimes an alien legal system is successfully transplanted in another country or a single
personality greatly influences a legal system that is not based on popular consciousness.
George Friedrich Puchta
George Friedrich Puchta was a student of Savigny and a significant jurist whose ideas were more
logical and improved. He used the term “right” instead of “law” and believed that men always lived in
unity, but people are different in their behaviour and unequal, which gave rise to the concept of law.
The state comes into existence as a result, but neither the people nor the state alone is the source of
law. Instead, all laws come into existence through Volksgeist, the spirit of the people.
Merits
 Puchta’s ideas were more logical and improved compared to Savigny’s.
 He distinguished between the general will and individual will, which helped explain conflicts.
 His division and explanation of conflicts between the general will and the individual will make the
state intervention theory more logical.
Demerits
 Puchta ignored the historical aspects of legal development.
 His ideas were initially rejected due to ambiguity, which he later corrected.
 Philosophical School of Jurisprudence
The Philosophical School, also known as the Ethical or Natural School, posits that legal philosophy
should be based on ethical values in order to encourage people to live uprightly. The purpose of law,
according to this school, is to maintain social harmony, preserve law and order in society and justify
legal restrictions only if they promote individual freedom.
This school upholds the principles of logic and reason.
Grotius
Grotius is widely regarded as the founder of international law and he believed that a system of
natural law could be derived from the social nature of man. According to Grotius, natural law is the
dictate of right reason, which indicates whether an act is in conformity with rational nature and
possesses a quality of moral baseness or moral necessity.
Merits
 Grotius emphasised the importance of morals in describing righteous conduct in society and built a
system of natural law that should command universal respect by its inherent moral worth.
 He also stressed the significance of reasons and the origin of law based on morals.
 According to Grotius, the agreement of mankind concerning certain rules of conduct is an indication
that those rules originated for the right reason.
Demerits
 Grotius’ theory was based on morality and there is a difference between ethics and morality. Ethics
refers to the behavioural patterns of a person, whereas morality refers to the values imbibed in them.
 Additionally, there are other factors such as social, economic and political patterns of the society that
are crucial in the formation of law. Legislation, customs, precedents, etc., are also significant sources
of law.
Immanuel Kant
Immanuel Kant, a famous philosopher, described the law as the set of conditions under which
personal desires can be reconciled with the desires of others according to a general law of freedom.
 Kant differentiated between ethics and law, arguing that ethics pertains to spontaneous acts of
individuals while law pertains to acts that individuals are compelled to perform by society and the
state. Ethics is concerned with inner life and consciousness, while law regulates external conduct.
Kant also stressed that legislation is only effective if it represents the united will of the people.
Merits
 Recognised the natural right to freedom of an individual in the presence of others’ freedom under
general law
 Aimed to establish a universal world state
 Emphasised the role of the state in safeguarding and protecting the law
 Differentiated between ethics and laws and highlighted the importance of the united will of people in
legislation.
Demerits
 Focused on what law ought to be and disregarded the past and present of the law
 Denied the significance of natural law in the formation of laws
 Theoretical differences between ethics and laws with little practical application
 Insufficient consideration of other sources of law, such as customs.
 Realist School of Jurisprudence
The Realist School is a sociological approach that focuses on decisions and evaluations of law. It
challenges traditional legal values and concepts by examining what courts and common people are
actually doing. This movement emphasises the importance of the judicial organisation in the
application of the law. The realist school believes that law is real and co-relates law with reality.
There are two types of realist schools: the American Realist and the Scandinavian Realist.
John Chipman Grey
John Chipman Grey considered the father of American Realism, believed that the Law of the State or
any organised body is composed of the rules that the courts lay down for the determination of legal
rights and duties. He emphasised that codified laws are immaterial unless they are applied by a
judge and that law is basically the judgment that the court passes.
Merits
Merits of Grey’s theory include its relatability to real-life situations, a chance for own interpretation by
people and a focus on “what law is” rather than “what law ought to be.” He also observes similar
cases in the past.
Demerits
Grey’s theory has some demerits. He does not take into account the statute law, puts excessive faith
in judges and does not consider that the judgment may include the judge’s personal bias.
Additionally, his definition is not concerned with the nature of law, but rather its purpose and ends.
Jerome Frank
Jerome Frank is a prominent philosopher of the realist school. In his work, he compared the
relationship between the certainties of law in men to a father-son relationship, where a man gets
protection from the law, just as a son gets protection from his father.
Merits
Frank’s view brings the following merits:
 He emphasises that lawyers and judges should not rely on legal certainty in the name of precedents
or codification.
 He highlights the constructive work that lawyers and judges should do.
 He emphasises the importance of law making by evaluating the facts of each case under changed
social circumstances.
Demerits
However, Frank’s approach also has some demerits, such as:
 Critics have found his approach not useful in terms of the law.
 Some scholars criticised him for using the Freudian approach to the psychological development of a
child in his theory, calling it the Freudian approach of jurisprudence.
Conclusion
The five schools of jurisprudence are as follows: natural law (analytical), legal positivism, historical,
sociological and realist. These schools of thought provide a framework for understanding the nature
of law, the role of law in society and the principles that underlie legal systems around the world. Each
school has its own unique perspective and approach to the study of law and each has contributed to
the development of modern legal theory in its own way.