ANALYTICAL SCHOOL AND PURE THEORY OF LAW Skamkus.org/coursematerial/JURISPRUDENCE 2015-16.pdf · K A M K U S 5 Strictly for Internal Circulation - KCL Law and Morals in the Pure Theory

1

KAMKU

S

Strictly for Internal Circulation - KCL

ANALYTICAL SCHOOL AND PURE THEORY OF LAW

o Introductory

o Analytical Jurisprudence – Meaning

o J. Bentham

o Hart's Contribution to Positivistic Jurisprudence

o Hart's Dual System of Law

o Rule of Recognition-a neo Austinian Sovereign

o Internal Aspect of Law

o Analytical School-Indian Situation

o Pure Theory of Law

Analytical Jurisprudence-Meaning

Analytical Jurisprudence (which Sir John Salmond terms 'Systematic Jurisprudence' and C.K. Allen as

'Imperative Jurisprudence' is that approach of method which considers law as a body of actual interrelated

principles and not merely a haphazard selection of rule inextricably interwoven with a transcendental Law

of Nature. It seeks to define all laws, classify all laws, discover the essential features of every law and get a

yardstick by which all laws can be measured. It mainly aims at reconstructing a scientifically valid system

by analysing legal concept on the basis of observation and comparison by reducing law into a logical

fashion. Such an approach towards law is described Analytical Jurisprudence. C.K. Allen, however,

maintains that since jurists of this School consider law as an imperative or command emanating from a

politically independent sovereign so the approach of these jurists may be described as Imperative School of

Jurisprudence. Analysis of legal rules, concepts and ideas through empirical or scientific method is

commonly described Analytical Jurisprudence. Similarly, legal analysis and examination of man-made law-

of the law as it is or as it actually exist (posited) is known as Positivism. It is mainly Bentham and Austin,

who laid the foundation of analytical positivism in modern legal theory.

J. Bentham

Jeremy Bentham is one of the greatest analytical jurists of all time who discarded, rejected and even

ridiculed natural law not law at all but merely a so-called law as it was not emanating from the sovereign. It is

not Austin but Bentham who is the actual father of English Analytical Jurisprudence. Thus with Bentham

came in England the advent of positivism, sovereignty, command duty and sanction-the basic elements of

Analytical Jurisprudence which were subsequently borrowed by John Austin. It was Jeremy Bentham who

defined law as a command of the sovereign-an idea which he had taken from Hobbes. As a great social and

KAMKU

S

2


legal reformer he wanted to clarify the then existing English law which was shrouded by common law,

natural law, equity and' fiction, judge-made law and moral law. In order to reform law he viewed law in terms

of ends or purposes i.e. utility. Therefore, all laws were to be tested in terms of man's greatest happiness. In

his book 'Limits of Jurisprudence Defined' Bentham enunciated the concept of law in terms of utility

emanating from the sovereign. These two concepts that law is the command of the sovereign and law is to

promote individual pleasure and decrease pain were masterly analyzed by him much before Austin took

both these ideas from Bentham. He adopted from Bentham the concept of positive law in the nature of

command and made it the kernel of his jurisprudence. He took the other part also, i.e. the theory of utility.

But rejected this concept on the ground that it has nothing to do with positive law. Austin thereby identified

the theory of utility with the theory of natural law or law of God and, therefore, rejected it on the ground of its

being unscientific. Describing the theory of utility as science of legislation Austin was of the view that it has

nothing to do with science of jurisprudence.

Bentham's philosophy of law created two schools-the pure analyst interested in the analysis of positive law

and the theological writers interested in the ends or purposes of law which it should serve. It was a disaster

for English jurisprudence that Bentham's work was not taken in its entirety. This disaster was created by

Austin who viewed law without social purposes or goals in its barren and isolated fashion. Many of the

modern jurists consider Austin 'as the father of analytical jurisprudence. But it was much before Austin that

Bentham had adopted and refined' the analytical approach in discovering the good laws from those which

were inconvenient and unnecessary. It is, therefore, Bentham who should be rightly designated as the real

father of analytical jurisprudence.

Hart's Contribution to Positivistic Jurisprudence

There is a century gap between legal theories of John Austin and Professor H.L.A. Hart. John Austin's model

of positivism conditioned by anti-natural law scientific theories and Jeremy Bentham's legal thinking

emanated in his Lectures on Jurisprudence in the Universal of London finally concretized in Province of

Jurisprudence Determined. In 1832 H.L.A. Hart, Professor of Jurisprudence in the University of Oxford

produced his monumental work The Concept of Law in 1961 highlighting the various difficulties and

inadequacies besetting Austin's theory of Jurisprudence. The concept of law is thus a critical evaluation of

the development of positivism in law from John Austin to Hart. Indeed Professor Hart has been careful to

exclude all the defects from which John Austin's jurisprudence has been suffering and thereby has

enunciated a much reformed and socially oriented positivistic theory of law.

Hart's Dual System of Law

Hart has been anti-Austinian who has rejected the Austinian model as it is exclusively based on the triology

of command, sanction and sovereign which Austin described as 'key to the science of Jurisprudence'. Such

pattern, says Hart, is exclusively applicable to criminal pattern of law and is inapplicable to modern legal

KAMKU

S

3


systems. Hart's analysis of legal system is quite elaborate and sociological and not merely a kind of

command or orders of gunman or gangster. In place of Austin's monolithic legal structure Hart provides a

dual system of law consisting of two types of rules which he describes as primary and secondary rules.

Primary rules are those which lay down standards of behaviour and are rules of obligation-that is the rules

which impose duties. The Secondary rules, on the other hand, are such rules which specify the rules in which

primary rules may be ascertained, amended, rescinded and enforced. The addition of secondary rules to a set

of primary rules is, says Hart, 'a step forward as important to society as the invention of the wheel'. It is this

step which Hart dec1ares14 as 'the step from pre-legal into the legal world'. The combination of primary

rules of obligations and the secondary rules of recognition, says Hart, is the 'Key to the science of

Jurisprudence'. Thus it is the union of primary and secondary rules which constitute the core of the legal

system and can be justly regarded as the 'essence' of law.

Rule of Recognition-a neo Austinian Sovereign

According to Hart the regime of primary rules suffer from doubt or uncertainty as to the question about what

the rules of community are or what is their exact scope. The remedy for uncertainty is the introduction of

what Hart calls the rule of recognition which authoritatively settles what the rules are or what their scope is.

The rule of recognition provides the criterion for identifying the valid law. It is the rule of recognition which

provides the standard to distinguish things which are law and which are not law. This rule of recognition is

analogous to Austin's sovereign. Rules of recognition like Austin's sovereign just exist, while the latter die

the former fade away (into disuse). 'The rule of recognition' Hart concludes 'exists only as a complex but

normally concordant practice of the courts, officials and private persons in identifying the law by reference

to certain criteria. Its existence is a matter of fact'. As it is not possible to question the legal validity of the

commands of an Austinian sovereign, neither can we question the legal validity of Hart's rule of recognition.

In short, the rule of recognition is Hart's important feature of positivistic theory of law in the twentieth

century.

John Austin's Command Theory of Law

Jurisprudence- Normative V. Analytic

Positive Law v. Non-Positive Law (e.g. Divine Law)

Laws properly so-called V. Laws not properly so-called (e.g. rules of honour & etiquette)

Political Superior (sovereign) v. Non-Political superior (e.g. school yard bully & Professor)

Laws

KAMKU

S

4


(Determinate Source/Rule/General Command/Sanction/Oblige/Obligation-Duty)

God Sovereign Other Human Being

(Divine Law) (President of NHL (i.e. “the count”)

University senate)

Command

General vs Particular

Rule

Positive Law

Non- Laws within the Province of Jurisprudence (appear to be laws but are not)

1. Declaratory Laws

2. Laws to Repeal Laws

3. Imperfect Laws

Laws that appear not to be Commands, and hence not laws (but are laws)

1) Laws granting rights

2) Customs

Sovereign:

General commands are habitually obeyed by the bulk of the population; not in the habit of obeying any other

determinate human person(s)

Hans Kelsen's Introduction to Pure Theory of Law

The two editions of Kelsen's book were separated by twenty-six years, and the second edition (1960) was

almost twice the length of the first in the detail of its presentation. The original terminology which was

introduced in the first edition was already present in many of Kelsen's writings from the 1920s, and were

also subject to discussion in the critical press of that decade as well, before it was first published in 1934.

The Pure theory of Law as a Theory of Positive Law

On page one, paragraph one of Pure Theory of Law, Kelsen introduces his theory as being a theory of

positive law. This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which

start from a Basic Norm or Grundnorm where all other norms are related to each other by either being

inferior norms, when the one is compared to the other or superior norms. The interaction of these norms is

then further subject to representation as a static theory of law (Kelsen.s chapter 4) or as a dynamic theory of

law (Kelsen's chapter 5).

KAMKU

S

5


Law and Morals in the Pure Theory of Law

Kelsen's strict separation of law and moralswas an integral part of his presentation of the pure theory of law.

The application of the law, in order to be protected from moral influence or pilitical influence, needed to be

safeguarded by its separation from the sphere of conventional moral influence or political influence. Kelsen

did not deny that moral discussion was still possible and even to be encouraged in the sociological domain of

intersubjective activity. However, the static operation of the pure theory of law (see section below) was not

to be subject to such influences as presented by Kelsen in Chapter Two of the second edition of this book.

Law and Science

For Kelsen, in Chapter three of Pure Theory of Law, law was defined as the application of norms to its

function for the state. Science was generally the domain of the causal understanding of epistemological data

and its primary logical and causally oriented technique was to be distinguished from the normative

reasoning as was to be found int eh pure theory of law.

The Static aspect of law

As mentioned above, in Chapter Four of his book, Kelsen distinguished the static theory of law from the

dynamic theory of law (see discussion below). the stati theory of law represented the law as a hierarchy of

laws where the individual laws were related the one to the other as either being inferior, the one to the other,

or superior with respect to each other. This hierarchical theory was largely adopted from Adlof Merkl's

reserch in the structural aspects of the law while Kelsen was still in Vienna.

Law and State

Chapter six of Pure Theory of Law has Kelsen present his celebrated identity theory of law and state. This is

Kelsen's highly functional theory of the state and the law as representing the same entity. It is not to be

confused with the sociological domain or the cultural domain of inter subjective activity. Nor is it to be

confused with the political or even the religious domain of inter subjective interaction among individuals.

State Law and International Law

In Chapter Seven, Kelsen presents his disucssion of the interaction of state law and international law as these

are especially guided by the understanding of political sovereignty. For Kelsen, the assessment of

international law is that it represents a very primitive from of law in distinct contract to the highly developed

forms of law as may be found in individual nations and states. As a result, Kelsen emphasizes that

international law is often prone to the conduct of was and severe diplomatic measures (blockade, seizure,

internment, etc.) as offering the only corrective measures available to it in regulating the conduct between

nations. For Kelsen, this is largely inevitable due to the relative primitiveness of international law in

contemporary society.

KAMKU

S

6


Legal Orders

For Kelsen as for other Central European contempararies, norms occur not singly but in sets, termed 'orders'.

The ordering principle of an order of moral norms, and of an order of natural law, if one could exist- wold be

logical, as deduction. From the general norm 'do not kill other human being, it follows deductively that A

must not he maintains, is not, or not centrally, like a 'static order. An order of positive law. 'dynamic', in that

its ordering principle is authorisation. Each relatively 'higher' norm authorises someone (an individual or an

organ, primarily of the state) to create further and relatively 'lower' norms.

Basic Norm (Grundnorm).

Kelsen assumes, however, that the scientific representation of a positive-legal order, as a hierarchy of legal

propositions, must have a guarantor of unity. This guarantor cannot be other than a component of the

representation, hence legal proposition. Being a legal proposition, it counts as a representation of an actual

norm. So Kelsen calls it, elliptically, a 'basic norm (Grundnorm), A basic norm is 'presupposed' in legal

science for each order of positive law, to make it possible to understand that material as an order of positive

law. this norm is simply that 'the historically first constitution is to be obeyed'. That constitution may have

become established by custom or by revolution: the jurist does not evaluate the circumstances.

KAMKU

S

7


HISTORICAL SCHOOL

Founding of Historical School in Germany

Savingy's Theory of Volksgeist

Savigmu-Criticism

Savigny and Austin: Comparison

English Historical School and Sir Henry Maine

Development of Society in Early Period

Development of Law

Progressive and Non-Progressive Societies

Legal fiction

Equity

Legislation

Status to Contract

Maine and Savigny-Comparison

Founding of Historical School in Germany

In Germany also the historic conception of law was taken up and developed in the latter part of the

eighteenth century by Herder in his work 'Ideas on the Philosophy of the History of Human Race'. This

heralded the advent in 19th century of German Historical School represented by forerunners of Savigny,

Schelling (1775-1854), and Hugo (1768-1844) both of whom rejected a natural theory of law and advocated

law in fact, independently of legislation which develops itself as suited to the need and circumstances of

each community. The essence of law, according to Hugo, is its observance, acceptance by the people-

because its harmony with the paramount sentiments and practices of the people. Law is not a declaratory of

moral principles of reason or of human nature. It is declaratory of principle of progress and growth

discovered by human experience of administering of justice. As Sir Frederick Pollock puts it, 'The historical

method is nothing else than the doctrine of evolution applied to human societies and institutions'. However,

of the greatest German jurists of Historical School the name of Friedrich Karl Von Savigny (1770-1861) is

remembered conspicuously as the unrivalled and unchallenged founder of Historical Jurisprudence. He was

the 'Darwin' of Historical School of Jurisprudence. His last published work appeared only six years before

The Origin of Species (1860) and was still alive when Darwin's work appeared. The theory of evolution was

thus not new which Savigny had already propounded. Savigny, therefore, ushered the beginning of

Historical School-his doctrines regarding law were represented in his famous pamphlet 'On the Vocation of

Our Age for Legislation and Jurisprudence 1814'. The 'Vocation' appeared at a critical moment in the history

KAMKU

S

8


of the German States-the fate of Germany was still uncertain being decided at the Vienna Congress of 1815.

There was uncertainty in Germany about German State with its legal diversities and the problem of political

unification. These and other factors created a chain of reaction in the minds of German legal philosophers

resulting in the founding of Historical School. The factors which led to its growth in Germany and elsewhere

may be summarized below:

1. It was a reaction against the a priori notions of natural law philosophy. The philosvphers hitherto

measured all situations and problems by referring them to an idealized picture of social order

without studying law in relation to social growth and legal development.

2. The natural law thinkers had thought of law which was always the same static and unchangeable.

They failed to see the law which had grown and developed from the past.

3. The natural law philosophers believed in ideal principles of law as revealed by reason. It did not look

to history, traditions, customs, habits and religion as true basis of law.

4. The Historical School was a reaction against the French Revolution which itself was a product of

natural law philosophy with its gospel of liberty, equality and fraternity of men and nations. In

Germany a movement grew up which was romantic, irrational and strongly nationalistic in character

and which found its expression in art, literature, history, political theory and law. Nations now started

revolting against Nature.

SAVINGY'S THEORY OF VOLKSGEIST

1. According to Savigny law was not something which can be made or altered arbitrarily by law

makers. The contents of law are essentially determined by the whole past of a people so it cannot be

produced ab extra by an action of a wise law giver or by some inventive or master spirited people.

2. Law of a nation, therefore, according to Savigny, is not the product of reason or command or will of

the Sovereign but the instinctive sense of right possessed by every race or community. In other

words, law is a product of 'internal silently operating forces'.

3. Law as such is found and not made. It is to be found in popular faith, common convictions, customs,

traits, habits, traditions which in course of time grow into legal rules.

4. Like the language, the manners and the constitution of anation, all law is exclusively determined by

the nation's peculiar character which is otherwise called the Volksgeist or spirit of the people.

5. Law cannot be universal or general in character. It is always peculiar, particular, limited-its nature

and character depending upon the peculiar, traditions of each people. Law of a nation, likes its

language, manner and Constitution is peculiar to a people. Law grows with the growth and

strengthens with the strength of the people and finally dies as the nation loses its individuality.

6. Savigny, therefore, favoured customary law over legislations. As such he gives more importance to

jurist than legislator the former representing the national spirit, i.e., Volksgeist.

7. Savigny believed in the unbreakable continuity of law from the past to the present and future also. A

law of a nation cannot be different from its past customs and traditions on which the existing and

KAMKU

S

9


even future law can be based.

8. Savigny considered law an inextricable part of society. He viewed law as a part of social process and

development which arises from silent forces which are not directed by arbitrary and conscious

intention but operate in the way of customary law.

Savigny-Criticism

Savigny while advocating the role of evolution and growth in the development of law his approach towards

law was vitiated in the following manner:

1. He laid excessive emphasis upon the unconscious forces which determine the law of a nation and

ignored the efficacy of legislation as an instrument of deliberate, conscious and planned social

change. In modern developing societies like India legislation is being created, enacted and used as an

important instrument of social change and social reform. As he underestimated the importance of

legislation and took a pessimistic view of human power for creation of law to bring about social

change so he is criticized for his 'juristic pessimism'.

2. Savigny emphasized the national character of law. While advocating national character of law he

entirely rejected the study of German Law and took inspiration from Roman Law.

3. Volksgeist itself is an abstract idea as indeterminable and vague as the natural law itself.

.

Development of Law

1. Themistes (judgments):

The earliest notions connected with the conception of law are contained in the Homeric words Themis (the

Goddess of Justice) and Themistes are the awards pronounced by judge as divinely dictated to him.

Themistes are not laws but judgements or 'dooms'. The king happened to be the administrator of judgments-

of course he was not the maker of law as the Themistes were divinely inspired by Goddess of Justice.

2. Custom:

The next stage was reached when the office of the king or judge was usurped by the councils of chiefs. The

priests became the depositories of law who circumscribed the king's power and claimed the sole monopoly

of knowledge. Therefore, the priestly class attempted to preserve the customs of the race or caste intact.

Since the art of writing had not been invented so customs of the community became law for the people who

were united by blood relationship. Thus we notice a particular important phenomena Maine's theory of legal

development conception of customs emerging posterior to that Themistes or judgments.

3. Era of Codes:

From a period of customary law the next stage is the era of early codes following the discovery and diffusion

of the art of writing: Most important codes of the era were Twelve Tables of Rome. Manu's Code which were

mixture of moral, religious and civil laws. The separation of law from morality and religion is a later

development. However curiously enough law and state became more military and political in the West;

KAMKU

S

10


while they became more religious in the East. Codes thus provided a definite, secure and positive basis of

law against the frauds of the priestly class.

Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous development.

Hence onward if there are changes in law they are effected deliberately and from without with a conscious

desire for improvement. A new era begins after epoch of Codes. A distinction between stationary and

progressive societies begins to make itself felt. According to Sir Henry Maine the difference between

stationary and progressive societies is one of the great secrets of history. The stationary condition of the

human race is the rule; the progressive an exception.

In progressive societies social necessities and opinions are in advance of the law. The law is stable and

societies are progressive. The happiness of people depends on the degree of promptitude with which the gulf

is narrowed. The agencies by which law is brought into harmony with society are three legal fictions, equity

and legislation-properly in that order.

Legal fiction

A legal fiction signifies any assumption which conceals or affects to conceal the fact that a rule of law has

undergone alteration its letter remaining unchanged its operation being modified. Legal fictions satisfy the

desire for improvement but at the same time they do not offend the superstition, fear and dislike of change.

At a particular stage of social development they are invaluable expedients of social progress for overcoming

the rigidity of law.

Equity

Equity belongs to a more advanced stage than fictions. The interference with the law is open and avowed. It

is a body of law existing by the side of the original civil law, founded on distinct principles claiming

incidentally to supersede the civil law by virtue of a superior sanctity inherent in those principles.

Legislation

Legislation is the last instrumentality of social change. It derives its authority from an external body

or persons. Its obligatory form is independent of its principles.

Status to Contract

According to Maine the movement of progressive societies has been uniform in one respect. In the

stationary societies family is the legal unit, the pater familias as its head and other members-wife, children,

slaves, cattles dependent on the head of the family and subject to his power. Except the head of family no one

has the power to enter into contracts. The relationship between father and other family members are based on

KAMKU

S

11


status or position and not on contract. The son, the female, the slave has only status in the family. In the

progressive societies, however; along with legal development there is a marked change towards the growth

of individual rights. There is a disintegration of family and dissolution of family dependency and the

individual becoming the unit of which civil law takes account. In Western Europe status of slaves was

abolished and it was superseded by contractual relation of master and servant. The tutelage of female and

children also ceased to exist in relation of husband and parents. As compared to primitive non-progressive

societies-the individual in the progressive societies became a free willing and free thinking one with all

powers to enter into contract. From this Maine concluded: ........................ the movement of the progressive

societies has hitherto been a movement from status to contract”.

KAMKU

S

12


SOCIOLOGICAL SCHOOL

INTRODUCTION

Ihering-1818-1892

Social Interest Theory

Leon Duguit 1859-1928: Law as a Social Fact

Law exists without and above State

Social Solidarity

Theory of justice

Other Jurists

Roscoe Pound 1870-1964

(1) Law and Society:

(2) Law-Reconciler:

(3) Law and Social Interests:

Means to Achieve Ends

Theory of Justice

Social Engineering

Modem Realists

Sociological School and Indian Position

Legislation and Social Goals-Judicial Engineering in India

INTRODUCTION

Sociological approach to the study of law towards the end of the nineteenth century did not emerge in

isolation. It was a reaction against the formal and barren approach of the analytical jurists and the pessimistic

approach of the historical jurists: There was a dire need to study law not in mere abstraction, but in its

functional and practical aspects. Further, on account of economic and social conflicts towards the beginning

of twentieth century led to growing disbelief in the eternal principles of natural law which had hitherto

placed an ideal of harmony before the individual. These various approaches appeared as a clog in the way of

legal reform, social change and economic justice. The theory of inalienable natural rights was now being

considered as an expression of outmoded laissez-faire philosophy. This led the States to expand the

dimension of their activities to such matters as health, insurance, education, old age security and other forms

of social and economic aspects of welfare. Hence a new approach towards the study of law in relation to its

ends, purposes and functions for, ordering and regulating relationship between individuals and groups of

KAMKU

S

13


individuals emerged which is described as the sociological jurisprudence.

Among the foremost writers who made an attempt to apply scientific methods to social phenomena was

Auguste Comte (17981851). He is known as the founder of sociology as a science. He laid stress upon

empirical methods such as observation and experiment for the study of society. It is the task of sociology to

provide methods, tools and a basis for a purposeful and realistic appraisal of social phenomena which

interact in society. Darwin, Herbert Spencer and Bentham in a way directly or indirectly applied law to man

in society. Particularly Bentham's theory of utility, i.e., the greatest good of the greatest number has been

utilised by the sociological jurists for legal reform, social progress and general welfare. It would be useful to

dilate upon the contributions made by important jurists towards the growth and development of the

Sociological School of Jurisprudence.

Ihering-1818-1892

Rudolf Von Ihering is one of the greatest German jurists who has been described as 'the father of modern

sociological jurisprudence'. He rejected the analytical and historical jurisprudence as 'jurisprudence of

concepts'. He considers law as an instrument of serving the needs of individuals in society. Therefore, the

theory of causal relationship applicable in natural world cannot be applicable to human nature. According to

him 'human conduct is determined not by a 'because' but by a 'for' by a purpose to be effected. In substance,

therefore, he says, law has to be studied in terms of purposes or interests which law serves.

Social Interest Theory

In his work Law as a Means to an End, Ihering came to the conclusion that the dominant motivation in the

exercise of human will is notion of purpose. This he calls the law of purpose. According to Ihering human

will is primarily directed towards furtherance of individuals purposes. In realization of individual purposes

there is bound to be a conflict between social interest and each individual's selfish interests. He, therefore,

tries to reconcile the individual interest with that of society. So law is only an instrument for serving the

needs of society-its purposes and interests. The State, therefore, must apply methods which promote such

social interests which are inherent in every individual. To reconcile the conflicting interests of society vis-a-

vis individual, state employs the methods of reward by enabling economic wants to be satisfied and also the

methods of coercion. For instance, economic wants of man must be satisfied. Therefore, society in larger

interest puts such social controls which may reduce the quantum of profits. This can be done both by means

of reward or by coercion which is called law. Law is a coercion organized in a set form by the State. The

success of legal process is to achieve a proper balance between social and individual interests. It is thus

through the two impulses Coercion and Reward that society compels individuals to sub- ordinate selfish

individual interests to social purposes and general interests. The natural impulse of Duty and Love, i.e., the

egoistical instincts of sacrifice and service also makes man to subserve social ends. Therefore, law

according to Ihering is nothing but a means to an end-an instrument of social control-balancing of individual

KAMKU

S

14


interests with that of society. Regulation through law of human activities the service of general community

is its chief raison d'etre

Leon Duguit 1859-1928: Law as a Social Fact

The French jurist Leon Duguit carried forward the belief that scientific progress can be accelerated by

individual behaviour in order to satisfy common social needs and interests. As to Durkheim division of

labour was pre-eminent factor of social cohesion to Duguit it was the establishment of social cohesion as an

indisputable fact beyond ideology, beyond religious or metaphysical speculation………..The constant

realisation of social fact which is simply inter-dependence of individuals could at last replace ideological

quarrels by observable facts.

Like Ihering, Duguit also rejected the prevailing notion of State, Sovereignty, law as a command or as an

exercise of free human will and the theory of natural right of man as subjective and unreal concepts based on

fictions or hypotheses. According to him the basis of law is the fact of social and natural interdependence of

individuals and groups upon each other. As such law is based and dependent on certain social facts or reality

which impels men who have common needs, who have different capacities and talents to subserve each

other by common exchange of services. This is the fact and not an assumption that the individuals think and

act on the full realization of the idea that individual good can be furthered only on the furtherance of

community good or collective interest. Individual interest without public good is no interest but an

abstraction of subjective satisfaction. In other words, according to Duguit, there is not and cannot be

opposition between individual and those of collective interests, that of interest of one with the interests of all.

Generally speaking interests of all and each one are complimentary and completely coincide with individual

purposes, that making use of the expression of Karl Marx 'The free development of each one is the condition

of free development of all'. Therefore, law is independent of State or sovereign, etc. and is based on

coincidence of individual and social interests.

Social Solidarity

Duguit puts forth in definite and clear terms that law arises of the facts of social existence. Therefore, if man

wishes to live and act in society he must act in conformity with the social law of solidarity. Solidarity is not a

rule of conduct, it is a fact-the fundamental fact of all human society. In other words solidarity is neither a

charity nor fraternity. These are moral duties. It is a fact. It means that in fact men are 'solidary' with one

another, that is, they have common needs which they can only satisfy in common, that they have different

capabilities and different needs which they can satisfy by exchange of needs and division of labour. This

solidarity or mutual interdependence is the product of social reality of social life. As such it is the duty of one

and all to conform his conduct according' to the fact of social solidarity. It is a coincidence of purposes and

facts-the unhappiness of one affects all, the happiness of one profits all. He says, 'Man must so act that he

does nothing which may injure social solidarity upon which he depends, and more positively, he must do all

KAMKU

S

15


which naturally tends ,to promote social solidarity'.

Solidarity, thereby, lengthens the life of the individual in the community and lessens his sufferings. For men

have never lived alone they live always in company with others. The community of sentiments unite men-

the similarity of desires, needs is the basis of the union of all humanity. On this basis Duguit attacks the

theory of natural rights because of excessive individualism. He emphasises on the concept of duty which is

the basis of cooperation and rejects abstract concept of ribI1t which is the source of conflict.

In this sense he is anti-Marxist. Man can promote his individuality by increasing his sociability by exchange

of needs and wants.

Other Jurists

The writings of Ehrlich (1862-1920), Max Weber, and Huntington Cairns made a significant impact in the

evolution of social basis of law and legal institutions. Among them Ehrlich especially observed that the

centre of gravity of legal development lies not in legislation, nor in juristic, nor in judicial decision but in

society itself. Thus the real source of law is not the State or Sovereign but the society itself. Ehrlich as such

emphasizes the need of carefu1study of social facts for exploring the correct basis of legal rules. The living

law of a society can be ascertained from the actual behaviour of a people. The living law, therefore, cannot be

discovered from outside the society or from the Sovereign as was conceived by the jurists of analytical

jurisprudence. The statutory law or judicial decisions have only evidentiary value to prove the existence of

living law in society.

Roscoe Pound 1870-1964

Dean Roscoe Pound is one of the greatest American jurists who is styled as the father of modern American

Sociological Jurisprudence. His Readings on the History and System of the Common law, the Spirits of

Common law, law and Morals, Interpretation of Legal History etc., are the most original outstanding works

in the field of legal philosophy yet produced in the United States. Pound' took some part of Ehrlich's

sociology of law, and some part of Ihering's theory of interest and made law more than a set of abstract norms

but a social process of controlling, adjusting and compromising the various conflicting interests of

individuals along with social good. Law, therefore, according to Pound was not for its own sake but for the

avowed object to satisfying human needs, wants, interests and purposes.

The need of purpose oriented definition of law by Pound is obvious. Pound was the child of his times. During

his era in the twentieth century American society was expanding commercially and materially. There was an

endless wealth due to scientific, technological innovations and unlimited material resources. The basic

problem, therefore, was how to control and distribute the wealth so produced. This could be resolved by

applying social sciences to the problems of man in society. Hence, law became an instrument of social

control for satisfying the just claims, interests and desires of the individuals. This approach of Pound was

KAMKU

S

16


atonce opposed to previous approaches of the analytical and philosophical jurists-the latter conceived law as

something abstract not concerned with ends of law, etc. For Pound law without its purpose or end would be a

mental exercise in abstraction only. Law, therefore, as described by Ihering and Ehrlich should be studied

with reference to society-society being the centre and circumference of law and its various purposes. For the

sake of convenience and clarity Pound's theory of Sociological Jurisprudence can be studied in the

following way:

Law and Social Interests:

According to Pound law is not concerned with abstract concepts like rights and duties. It is neither an

assertion of individual rights nor fulfillment of individual duties. It is rather concerned with satisfaction of

individual or social needs, wants, claims and interests. It is the task of sociological jurists to find out what

claims or wants or demands need social recognition and acceptance at a particular place and time. This is to

be found out on the basis of social surveys and concrete factual information of just social needs and claims.

As to just claims or demands it is an evaluative proposition depending upon values of a society-for such

interests can be satisfied without law and through law also.

Law, therefore, has to recognize just interests-individual, public and social and has to evolve a practical line

of action within which each type of interests should be allowed to function and satisfied by law. In this

respect law has to prescribe limits, determine the scope as well as subject matter of interests, catalogue all

the interests according to their primacy and urgency, find out the means for securing interests and to take in

view the wider values of society, etc. Thus all the interests are to be so adjusted as it may result in maximum

satisfaction. Pound classifies the various interests:

(a) Individual Interests: These are claims, demands or desires from the point of view of each individual as

such. These are concerned with:

(1) Personality: Such interests are· concerned with (a) the physical person, (b) freedom of will, (c) honour

and reputation, (d) privacy and (e) belief and opinion.

(2) Domestic relations: They are concerned with interests of individual in domestic relationship and that of

society in such institutions as family, marriage, divorce.

(3) Interest of substance: These include interests of property, freedom of industry and contract, freedom of

association, etc.

(b) Public interests: These are claims or demands or desires asserted by individuals from the point of view of

political life. These are two in number: (1) Interests of State as a juristic person. They include (a) the

integrity, freedom action and honour of State's personality (b) claims of politically organised society as

acooperation to property acquired and held for corporate purposes. (2) Interests of State as guardian of social

interests.

(c) Social interests: Social interests are claims or demands or desires involved in social life in civilized

society and asserted its title of that life. It is not uncommon to treat them as the claims of the whole social

KAMKU

S

17


group as such. Pound classified the social interests into six groups:

(1) Social interest in general security: These include safety from aggression both internally and externally;

general health, peace and order; security of transactions and security of acquisitions protection of property.

(2) Social interest in the security of social interests: These include domestic relations, religious institutions,

political institutions and economic institutions.

(3) Social interest in general morals: It is concerned with protection of the moral sentiments of the

c9mmlmity. It covers such laws concerning prostitution, drunkenness, gambling, begging, obscene

literature, etc.

(4) Social interest in conservation of social resources: For instance, these may include physical resources

like utilization and conservation of forests, oil, water and other resources. It also includes protection of

human resources such as protection of infants, lunatics, idiots, juvenile delinquents and also of poor and

weaker sections of society:

(5) Social interest in general progress: It may be of three types: (a) Economic: free. trade, free competition,

freedom and use of property without restriction, (b) Political: It includes free speech, free press, freedom of

association and cultural freedom, etc.

(6) Social interest in individual life: Individual self assertion, physical, mental, economic; individual

opportunity, physical, cultural, social and economic; individual conditions of life-a minimum wages, etc.

Means to Achieve Ends

For Pound the above catalogue of various legally recognized interests of individuals, groups and society

interact upon each other. Law, therefore, creates devices, machinery and means to reconcile these

conflicting interests. True it can be said that interests can be achieved with or without law. However,

according to Pound in a democratic State-it is the task of the lawyers, judges and law-, administrators to

weigh each interest in accordance with the needs and values of society and realise each of them through law.

Lawyers and judges, therefore, adjust social interests through law to avoid social tension and economic

conflict, changes in society should be brought about through law. For the values of a society are not static so

the law must recognize new values which press for recognition.

Theory of Justice

Pound is more interested in satisfaction of social needs and promotion of social justice than assertion of legal

rights. Law, therefore, should not be studied in relation to abstract concept but as an instrument of social

KAMKU

S

18


justice. For instance, Pound recognised the right of the weaker sections of society for greater social stability,

economic security and general welfare, etc. The various laws concerning minimum wages, old age pension,

social insurance, social security and guarantee of decent living, etc., are measures to further the social goals

and ends of society.

Social Engineering

For Pound law is not so much a social science as technology and the analogy of engineering is applied to

social problems. For a practical and functional working of law in society, it must be based on actual

information, statistics and briefs like the mechanical engineering which also depends upon a number of

scientific factors for the production of goods needed by the community. So the law must be concerned with

its purposes and techniques to achieve the set purposes paying no or little attention to conceptual notions of

law, legal rights, sovereignty, etc.

KAMKU

S

19


REALIST SCHOOL

REALIST SCHOOL

Introduction

American Realist School: Holmes' view

Gray's view

Frank's view

The Scandinavian Realist School

Comparison of Scandinavian and American Realism

Basic Tenets of the Realist School

Introduction

The Realist approach to law is a part of the sociological approach. That is why it is sometimes called as the

left wing of sociological or functional school. It differs from sociological school in that this school neither

studies the social effect of law nor it starts with any a priori like balance of interests or social engineering,

rather it concentrates on a scientific observation of law in its making and working. There are mainly three

reasons for the establishment of the realist· school of law. Firstly, it was established as a reaction against

sociological jurists who were emphasizing the social effect of law. Secondly, it was established to ignore the

theory of interest as given by Ihering and the theory of Social Engineering as advocated by Pound. Thirdly,

this school was established to point out the importance of Courts and importance of the Judges-the human

factor in the judges and the lawyers.

There are two trends of the Realist School. One is the American Realist School, another the Scandinavian

Realist School. American realism is the product of a pragmatist and behaviourist approach to social

institutions; practising lawyers or law teachers have developed it with a characteristic Anglo-American

emphasis on the work of courts and judicial behaviour, as a corrective to the philosophy of analytical

positivism which dominated Anglo-American jurisprudence in the nineteenth century. They have stressed

law in action, law as experience, as against legal conceptionalism. Holmes, Gray and Jereme Frank are the

main supporters of the American Realist School. Scandinavian realism is a philosophical critique of the

metaphysical foundations of law. They have put forth a philosophical justification. Olivercrona, Lundstedt,

KAMKU

S

20


Ross and Hagerstrom are the main exponents of the Scandinavian Realist School.

American Realist School: Holmes' view

Both in his writings and in his long tenure as Judge of the Supreme Courts, Holmes played a fundamental

part in bringing about a changed attitude to law. His emphasis on the fact that the life of the law was

experience, as well as logic, and his view of law as predictions of what the court will decide stressed the

empirical and pragmatic aspect of law. Holmes published a paper in 1897 in which this great judge put

forward a novel way of looking at law. If one wishes to know what law is, he said, one should view it through

the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. The

traditional description of law is that it consists of rules from which deductions are made. He says, "But if we

take the view of our friend, the bad man, we shall find that he does not care straws for the action or deduction,

but that he does want to know what Massachusetts of English Courts are likely to do in fact. I am much of his

mind. The prophecies of what the courts will do in fact and nothing more pretentions are what I mean by the

Law”.

Gray's view

Another important pioneer of American realist School was Gray, who made a distinction between law and

sources of law. The former is what the judges decide. Everything else, including statute, are only sources of

law until interpreted by a court. He defined 'the law' as follows : “The law of the state or of any organised

body of men is composed of the rules which the courts, that is, judicial organs of that body lay down for the

determination of legal rights and duties”. He said of statutes that, “the courts put life into the dead words of

the statute. Other sources include expert opinion, customs and public 'policy'.

Frank's view

In his book titled 'Law and the Modern Mind (1930)' Frank explained his theory of law and jurisprudence.

His entire thesis is centered on one point viz. Law is uncertain, certainty of law is a legal myth. To say in other

words his main attack was originally directed at the myth of achieving certainty through legal rules. Frank

insists that there are two groups of realists, “rule-sceptics” as he calls them, who regard legal uncertainty as

residing principally in the “paper” rules of law and who seek to discover uniformities in actual judicial

behaviour and “fact skeptics” who think that the unpredictability of court decisions resides primarily in the

elusiveness of facts. The former he suggests, make the mistake of concentrating on appellate courts, whereas

it is to the activities of trial courts that attention needs most to be directed. To this statement Lloyd remarks,

“No doubt there is force in this contention, for it is familiar enough to find that nice points of law often

dissolve away before decisions “on the facts”, quite apart from the fact that the majority of cases involve no

disputed law at all. Also, the facts may affect the actual decision as to the law, since courts often “wrench” the

law in order to make it fit what they conceive to be the merits of a case, not always with adequate regard to

the wider implications of their decision. But at the same time it is difficult not to feel that Frank makes an

KAMKU

S

21


over elaborated case about what in essence has never been far from the thoughts of the legal profession, viz.,

that you can never anticipate with certainty which way a court or jury will jump on issues of facts, and that

innumerable factors combine to promote such uncertainty and to render it ineradicable”.

Basic Tenets of the Realist School

1. It is the combination of positivist and sociological approaches. As in positivism, the law is seen as it

is and not as it 'ought' to be. It also emphasises the importance of some aspects of society.

2. The entire emphasis of this school is centered around the judge, the law is what judges decide.

3. The approach is empirical.

4. Law is what courts do and not what they say.

5. Doctrine of prudent is the main source of law.

KAMKU

S

22


LEGAL THEORY AND NATURAL LAW

LAW AS THE DICTATE OF REASON: NATURAL LAW

Criticism

Conclusion

II. IMPERATIVE THEORY OF CIVIL LAW OR THE AUSTINIAN THEORY

Criticism answered

Criticism answered

Conclusion

III. LAW AS THE PRACTICE OF THE COURT

(Legal Realism)

Criticism

IV. LAW AS A SYSTEM OF RULES

(Hart's analysis of law; Kelsen's theory of legal system)

Hart's analysis and Austin's theory compared

Kelsen's theory of Legal System

V. LAW AS A SYSTEM OF SYNTHESIS

(Sethna's Synthetic School)

THE FUNCTION AND PURPOSE OF LAW:

JUSTICE, STABILITY AND PEACEFUL CHANGE

Judicial Process and Reasoning

LEGAL THEORY

The primary purpose of legal theory is to define law. There have been several theories of law. These different

theories often look at law from various points of view.

KAMKU

S

23


LAW AS THE DICTATE OF REASON: NATURAL LAW

According to the Natural Law Theory, there are objective principles, which depend on the essential nature of

the universe, and which can be discovered by natural reason. From the point of view of the ordinary human

being, law is only true law so far as it conforms to these fundamental rights. According to this theory, there

are certain objective and absolute principles of morality as justice which are the basis of law. These

principles can be ascertained by human reason and common sense. Positive law, i.e. man made law, has to

conform to these fundamental principles. To the extent positive law is inconsistent with the principles of

natural law, it dies not claim obedience.

The roots of this theory are to be found in the philosophies of the ancient Greek philosophers. This theory is

also responsible for much of the legal and political thinking of the middle ages. As Bodenheimer rightly

remarks, “Noother philosophy moulded and shaped American thinking and American institution to such an

extent as did the philosophy of natural law in the form given to it in the seventeenth and eighteenth

centuries”.

The attractions of this theory are evident. Much too often, ordinary laws fall short of the ideal, and men have

always felt the need of an appeal from positive law to some higher standard. And, it is precisely such a

standard that is provided by natural law, which with its battle-cry “lex injusta non est lex” (unjust law is no

law), has served to criticize and restrict positive law.

Another great use of this theory is that it rejects ethical relativism. Ethical relativism considers morality as a

product of history and convenience, while natural law affirms the existence of certain objective and absolute

values.

This theory prosides to find common moral ground in different religious and different outlooks. The Greek

Stoic Philosophers asserted that man should live according to nature. The essential characteristic of human

nature was his reason. Therefore, he should live according to the dictates or reason. In the Medieval times,

the function of natural law was primarily to prescribe man's functions and duties. But later philosophers,

such as Hobbes and Locke, made use of the Doctrine of Natural Law of purposes of asserting man's rights

and freedoms.

Conclusion

Though there has been quite a bit of criticism of the natural law doctrine, yet the doctrine has been revived to

a large extent in the 20th century, when totalitarian doctrines rejecting all human moral values became a

challenge. To meet them, humanity naturally had to revert to a certain kind of natural law. This could be seen

in the trials of the war criminals at Nuremburg, and also formed the basis of the Charter of United Nations,

and the Universal Declaration of Human Rights.

In the words of Dr. Friedmann, “The most important and lasting theories of natural law have undoubtedly

been. inspired by two ideals-of a universal order governing all men, and of the inalienable rights of the

KAMKU

S

24


individuals”. It can be said 'to-day that natural law has influenced the Church; it has modified and restricted

the principles of positive law; it has imbibed its philosophy in the constitutions of several countries, and it

has been a very potent source of international law. Tomorrow, it may lead the countries of the world to accept

the concept of world law.

II. IMPERATIVE THEORY OF CIVIL LAW OR THE AUSTINIAN THEORY

Almost diametrically opposed to the theory of natural law is the imperative theory of law, which found its

most forceful expression in the works of Austin. This important theory is also called the Positivist Theory of

law.

According to Austin, positive law has three main features: (i) It is a kind of a command; (ii) it is laid down by

a sovereign authority; and (iii) it has a sanction behind it. A typical illustration would be the English Road

Traffic Act. This Act lays down certain rules which have to be followed (command), it has been passed by the

Queen in Parliament (laid down by the sovereign authority of England), and its violations are met with

penalties (sanction).

“But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or

sovereign in the character of a political superior, that is to say, a direct or circuitou's command of a monarch

or sovereign to a person or persons in a State of subjection to its author.”

According to the imperative theory of' civil law, civil law is, essentially and throughout its whole compass,

nothing but imperative law. According to this theory, civil law consists of. the general commands issued by

the State to its subjects, and enforced through the agency of Courts of law by the sanction of physical force.

The speciality of this theory is that it construes laws to be commands issued by the State and enforced by the

sanction of its physical force.

In a case decided by the Supreme Court (Raj Kapoor v. the State, (1980) 1 S.C.C. 43), Justice Krishna Iyer

examined the connotation of the term “law”, and observed as follows:

“Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of

the community's cultural norms, not the State's regimentation of aesthetic expression or artistic

creation.”

One might generally accept that there are certain rules of law which are in the nature of a command, -

but this theory maintains that all laws are in the nature of a command. This theory is not acceptable to

many jurists. The following are the main criticisms levelled against it.

Moral criticism

Though Salmond rejects the historical criticism, yet he appreciates the inadequacy of the imperative theory

of civil law. He observes: “It is onesided and inadequate - the product of an incomplete analysis of historical

KAMKU

S

25


conceptions.” His main criticism against the imperative theory is that it disregards the moral or ethical

elements in law. This theory ignores the intimate relation between law and justice. Salmond points' out that,

the end of law is justice. Any definition of law without reference to justice is evidently inadequate. Law is not

right alone, or might alone, but the perfect union of the two. It is justice speaking, to men by the voice of the

State. As the imperative theory excludes the ethical elements in law, it cannot be accepted as a complete

definition of law.

Permissive laws

Salmond further points out that the defect of the imperative theory of civil law cannot be cured even if an

ethical element is added to the - definition of the law as given by the imperative theory. Salmond points out

that the imperative theory does not accommodate a number of rules of law which are not in the nature of

commands. For example, there are permissive laws and procedural laws. These are, by no stretch of

imagination, in - the nature of commands. For example, a law which says that a certain act is not wrongful is

not a command, or the law which says that hearsay is no evidence is not a command. Therefore, Salmond

concludes that, though there is a large element of truth in the imperative theory of civil law it is inadequate

and incomplete.

Attempts to meet Salmond's criticism-Authority of Law 6

There are some writers who try to meet Salmond's criticism, that there are rules of law which are procedural

and permissive and, therefore, not in the nature of a command. These writers maintain that these procedural

rules may not be commands addressed to the citizens, but they are commands addressed to the Courts. The

procedural law demands that the Court must act in a particular way under particular circumstances.

But this criticism is easily met by Salmond. It may be true to say that procedural laws are commands

addressed to the inferior Courts, but so far as the final Court of Appeal is concerned, the existence or

procedural law depends on the interpretation given by such final Courts. For example, there is no way of

correcting the Supreme Court of India, if the Supreme Court of. India were not to follow" a particular

procedural rule. In the last analysis, the laws, depend on the interpretation given by the Courts, and the

judges obey the law, not because they are ordered to do so, but because they wish to obey it. Therefore, there

is no force which compels a superior Court to obey procedural law. Consequently, procedural law cannot be

considered as a command to the Courts.

Conclusion

To conclude, it can be said that one cannot accept Austin's theory if it maintains that all law emanates from

the command of the Sovereign. However, if the theory lays down that most law comes from, and requires the

sanction of, the Sovereign, the theory may be accepted.

KAMKU

S

26


Again, from a formal point of view, Austin's theory is, on the whole, forceful, and the various criticisms

considered above do not shake it off its foundation.

III. LAW AS THE PRACTICE OF THE COURT

(Legal Realism)

One version of legal realism was the one propounded by Salmond, who pointed out that all law is not made

by the legislature. In fact, he argued that, in England, much of it is made by the law courts. However, all laws,

however made, are recognised and administered by the Courts. Therefore, if a rule is not recognised by the

Courts, it is not a rule of law. Thus, according to Salmond, it is to the Courts, and not to the legislature, that we

must go if we wish to ascertain the true nature of the law. Accordingly, he defined law as the body of

principles recognised and applied by the State in the administration of justice, as the rules recognised and

acted upon by the Courts.

(1) Legal situations which are not predictions

It should be noted that a statement of Law is seldom treated as a prediction which a Counsel submits before a

Court. He is not forecasting what the judge will decide, but he is asking what the judge should decide.

Further, a· judicial decision is not a prediction of what a higher Court would do, but it is a judgment as to

what the law now is. Similarly, a Legislature is not predicting what will be done, but it lays down what shall

be done.

(2) The theory represents a. fraction of the situation

Though the realist view may be true to some extent in those situations when a new principle of law is

evolved, yet it should be noted that most of our law is settled and stabilised. It should also be noted that

several points of law never reach a Court, for the simple reason that the principle of law is so clear that the

parties adhere to it.

Thus, it is argued that the creative days of the judge is now a thing of the past. It is argued that today the law is

so complete, that the task of the judges is the more-or-less automatic task of applying settled laws to the;

cases before them.

However, this criticism is not without an answer. Legal Jules are still not as certain as was once imagined,

and the element of choice still faces a Court of law. To take just one example, in England, the unlawful and

intentional killing of a human being is the common law crime of murder. But, what would be the position if X

intentionally inflicts a mortal wound on Y, and then, mistakenly thinking him to be dead, throws his body

into a lake, with the result that Y dies, ·not from the wound, but by drowning? Would this amount to murder?

Until 1954, the English law had no answer to this problem, when these facts were before the Courts in Thabo

Mali v. R. (1954 1 AU E.R. 373), in which case the Court had to further develop the English law of murder.

KAMKU

S

27


(3) . The theory of uncertainty of language not always correct

It may be noted that in some border-line cases, the language may be uncertain, as in the example of the word

"driving' given above, but to generalise that all language is uncertain is to exaggerate the situation without

any foundation. In marginal cases, the meaning of the word may be uncertain, but this proves that the

meaning of the word is certain in other cases. Therefore, the realistic approach to law based on the

uncertainty, of language is a generalization of an exceptional situation.

IV. LAW AS A SYSTEM OF RULES

(Hart's analysis of law; Kelsen's theory of legal system)

There is yet another way of looking at law. This is to analyse law in terms of legal rules. It should be noted

that legal rules are imperative or prescriptive, rather than indicative or descriptive. In other words, legal

rules are not concerned with what happens, but with what should be done. The legal rules again differ from

commands, because commands order the doing of one particular· act, while legal rules deal with, general

and repeated activity. In this sense, legal rules, resemble technical rules or directives for achieving certain

results. Thus, for instance, certain rules may provide the mode of preparing a good dish. Legal rules are more

like the rules of a recipe than commands. But the fundamental difference between rules of recipe and legal

rules is that the legal rules are not merely an instrument for producing certain kinds of society, but the legal

rules and their observations are themselves part of such society.

It has also been pointed out that observing a rule IS different from mere acting out of habit. What is done out

of mere habit is done without any sense of obligation to do it, while observance of a legal rule is not merely

external. Internally, it is coupled with an attitude that such external behaviour is obligatory. Therefore, a

legal rule can be defined as one which prescribes a code of conduct, which is done with the feeling that such

conduct is obligatory. This feeling is not a psychological illusion peculiar to the person observing the rule. A

person who has to act according to a rule will also expect others to act according to the rule. This sense of

obligation arises neither out of mistake nor out of illusion.

The above is, in short, Professor Hart's theory of law, as set out in his treatise, The Concept of Law.

Hart's definition of law can be stated as follows:

“Law consists of rules which are of broad application and non-optional character, but which are at the same

time amenable to formalization, legislation and adjudication.”

Hart calls these rules of law primary rules; which would simply impose duties. But the unity among these

rules is brought about by secondary rules, which are power-conferring rules. For example, the Indian Penal

Code consists of primary rules, while the Constitution of India consists of secondary rules, as it consists of a

KAMKU

S

28


number of power-conferring rules.

Legal rules, as defined above, must be distinguished from rules of games, clubs, and societies, and moral

rules, which are also observed with a sense of obligation. The first difference between moral rules and other

rules (including legal rules) is that the latter can be amended and can be subject to adjudication. While

morality can neither be amended by an authoritative body; nor is it susceptible to the process of adjudication.

Another connected theory is that of the Austrian jurist, Hans Kelsen, the great jurist, who was

responsible for the framing of the Austrian Constitution.

Kelsen advocated the “pure” theory of law. He called it pure, because the theory describes' only the law,

excluding everything that is strictly not law. It seeks to lay down what is the law, - and not what the law ought

to be.

Kelsen was of the view that, to be acceptable, any theory of law must be “pure”, that is, logically self-

supporting,- and not dependent on any extraneous factors, i.e. not influenced by factors like natural law or

sociological or political or historic influences.

Kelsen considered the systematic character of the legal system to consist in the fact that all its rules or norms

are' derived from the same basic rule or rules, which he has called grundnorms. Where there is a written

constitution, as in India or the United States, the basic grundnorm will be that the constitution ought to be

obeyed. However, where there is no written constitution, as in England, Kelsen postulates that we must look

to social behaviour for the grundnorm. The English legal system, according to him, is based on several such

basic rules, such as the theory of parliamentary supremacy, the binding force of precedents, and so on. Such

basic rules are very important to any legal system; they are to a legal system what axioms are to, geometry;

they constitute the initial hypothesis from which all other legal propositions are derived.

Hart's view differs from that of Kelsen's, inasmuch as Hart refuses to look upon such rules as hypothesis.

According to Hart, the basic rules of a legal system do not consist of something which one has to assume or

postulate. Rather, it is itself a rule accepted and observed in a particular society. According to Hart, although

the rule of parliamentary sovereignty in England cannot be derived from any other rule of English law, yet it

is more than a merely hypothesis, - it is a customary rule of English law, followed in practice and looked

upon as a standard which has to be complied with.

V. LAW AS A SYSTEM OF SYNTHESIS

(Sethna's Synthetic School)

The Synthetic School of Jurisprudence was founded on 21st July 1955, by Dr. M. J. Sethna, the learned

KAMKU

S

29


author of “Jurisprudence”. Jurists are today now more and more attracted to Dr. Sethna's ingenious concept

of Synthetic Jurisprudence.

According to Dr. Sethna, jurisprudence should be, at the same time, analytical, historical, comparative and

sociological. In the words of the learned author, “There should be an amalgam of principles derived from the

social studies; and jurisprudence should suggest changes for the better, with the march of time and the

onward progress of society”.

An interesting illustration of the product of the school is the MindBehaviour Theory of Negligence (also

referred to as the Subjective-Objective Theo'ry of Negligence), which is discussed in Chapter XV.

Similarly, the definition of the term law also can be synthetic. This school defines law, in its widest sense, as

follows: “Law, in its widest sense, means and involves any uniformity of behaviour, a constancy of

happening or a course of events, rules of action, whether in a phenomena of nature or in the ways of rational

human beings.”

Civil law, according to this, school, is “all that body of principles, decisions and enactments approved or

passed by the legally constituted authorities in a State, for regulating the rights, obligations and liabilities of

the citizens in relation to the State, as also inter se, and enforced through the machinery of the judicial

process securing obedience to the Sovereign authority in the State.” In other words, an ideal civil law seeks

to secure the greatest good of the largest number in the body politic.

Synthetic thinking also enables one to link up the various theories of punishment, which might otherwise

appear chaotic and conflicting. “Not analysis alone, but rather synthesis, has enabled the outlook of

interdependence, so far as the theories of punishment are concerned.”

1. Natural Law

Natural law theory is one of the oldest theories amount all the theories. Thus these laws are popularly said to

be god made laws. it is said to be emanated from supreme source as observed by many jurist and

philosophers. Legal thinkers have expressed diverse views on behalf of natural law. Natural law philosophy

dominated the Greece during 5th century BC when it was believed it was eternal to man. Sophist calls it as an

order of things embodies reason.

Development of natural law theory :-

A brief discussion on natural law theory shall be presented in the historical order to give an idea of the

various ideologies that it tried to establish from time to time and its effect on law. Natural law theories may

be broadly divided into four classes:-

a) Ancient period b) Medieval period c) Period of renaissance d) Modern period

KAMKU

S

30


Ancient Period :

The concept of natural law theory was developed by Greek philosophers around 4th century BC and laid

down the essential features.

Heraclitus: was the first Greek Philosopher who pinted three main characteristics of natural law namely,

destiny, order and reason. He stated that nature is not scattered heap of things but there is a definite relation

between things and a definite order and rhythm of events. According to him “reason” is one of the essential

elements of the natural law. The instability and frequent changes in the early small states of Greece made

legal philosophers to think that law was meant to serve the interest of those who were in power and the

people are continually struggling for better life. This unstable political condition gave birth to idea of natural

law.

Socrates :

Sorates said that like natural physical law there is a natural law. Man possesses insight which reveals to him

the goodness and badness of things and makes him to know the absolute and eternal moral rules. This human

insight is the basis to judge the law. Socrates did not say if the positive law is not in conformity with moral

law it would be disobeyed. According to him it was rather appeal of insight to obey it and perhaps that was

why he preferred to drink poison in obeyance to law than to run away from the prison.

Plato :

Socrates disciple plato carried further the natural law theory further through his concept of ideal state which

he termed as republic. He contented that only intelligent and worthy person would be king. He argued that

justice lies in ordinating means life through reason and wisdom and motivating him to control his passion

and desires. In his republic Plato emphasize the need for perfect division of labour and held that each men

oath to do his work which he is calledu pon by his capacities. According to plato law of states are a pale

shadow of an absolute idea of an perfect laws against which man made law may be measured.

Aristotle:

According to him man is a part of nature in two ways first he is the part of the creature of god and second he

posses active reason by which he can shape his will. By his reason men can discovered the eternal principles

of justice the men's region being the part of nature the law discovered by reason is called natural justice.

Aristotle defines natural justice as that which everywhere has the same force and that not exist by the people

thinking this or that. So far as its relation which positive law or legal justice is concern, he said that legal

justice in that which is originally indifferent but when it has been laid down is not indifferent.

KAMKU

S

31


Rome :

The theory expanded by Stoics had a great influence on the contemporary roman legal system. The romans

did not confine their study or natural law theory merely to theoretical discussion but carried it further to give

it a practical shape by transforming their rigid legal system into cosmopolitan living law.

Medieval Period

This period starts from 12th century to mid 14th century in the European history. This period was dominate

by ecclesiastical doctrines which the Christian fathers propagated for establishment of church over the

states. The Christian saints especially Ambrose, St. Augustine and Gregory propagated a view that divine

law was superior to all other laws. According to them all laws are either divine or human.

St. Thomas aquin as defined the law as 'an ordinance of reason for the common good made by him who has

the care of the community and promulgated through reason” he classified law as:- (I)Law of God ro external

law, ii) Natural law revealed through reason, iii) Divine law or law of scriptures, (iv) Human laws which we

now called positive law.

Period of Renaissance

This period in the history of development of natural law may also be called the modern classical era which is

marked by rationalism and emergence of new ideas in different fields of knowledge. General awakening

among the masses coupled with new discoveries of science during the 14th and 15th centuries shattered the

foundation of the established values.

Hugo Grotious :-

He propounded the theory f functional natural law and formulated the principles of international law which

were equally applicable to all states both during was and peace and he is considered as the founder of modern

internationals law. He therefore treated “Natural Law as immutable which cannot be changed by god

himself”

Thomas Hobbes :

Hobbes theory of natural law was based on natural right of self preservation of person and property. He made

use of natural law to justify the absolute authority of the ruler by endowing him power to protect his subject.

Rousseau :

Social contract is not a historical fact but hypotehtical construction of reason. The essence of Rousseau

theory of general will was that while the individual parts with his natural rights, in return he gets civil

liberties such as freedom of speech equality, assembly etc. His natural law theory is confined to the freedom

KAMKU

S

32


and liberty of the individual. For him, state, law, sovereignty, general will etc are interchangeable terms,. his

theory is considered to be the forerunner of the modern jurisprudential through and legal theory.

Locke:

He pub emphasis on right to life, limberly and property which is inalienable rights and necessary for the well

being of the individual. He said that there should not be any law contravening the above rights.

Modern Period :

The natural law theory received a set back in the wake of 19th century pragmatism. The profounder of

nalytical positivism, notably Bentham and Austin rejected natural law on the ground that it was ambiguous

and misleading. Bentham called it a simple nonsense since absolute equality and absolute liberty were

repugnant to the existence of the state. The doctrines propagated by Austin and Bentham completely

divorced morality from law. All these developments shattered the very foundation of the natural law theory

in 19th Century. Letter in te 21st century there was revival of natural law school where jurist like Stammler,

Fuller and finnis had made their contribution towers the revival of this school.

Natural Law theory and its influence in Indian laws relating to fundamental rights (Article 14, 19 and 21) and

case laws relating to it:

In Indian laws especially in Indian constitution there has been a largely impact of natural law theory. The

articles like Article 14, 19 and 21 has been widen widely interpreted in the Indian scenario especially be the

Indian judiciary. This could be found through the case law.

Now if one analyzes Stammlers four point principle with special reference to “principles of respect” : 1) the

content of the person's valuation must not be against the arbitrary will of another. Thus in this case the natural

law theory has been applied by Indian Judiciary.

In the case of Maneka Gandhi V/s Union of Indian the meaning and content life and personal liberty under

article 21of Indian constitution came up for consideration and the supreme court held that the law

established by the state should be just fair and reasonable.

If one nanalyses the judgement one would find reference of LOCKE”s theory whereby the natural rights of

man such as right to life, liberty and property remained with him. So in Meneka Gandhi case also the natural

law theory principles could be evolved.

To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles

of the democratic state based on rule of law. The popular Habeas Corpus case ADM Jabalpur V/s Shivakant

KAMKU

S

33


Shukla is one of the important cases when it comes to rule of law. In this case the question was whether there

was any rule of law in india part form article 21. This was in context of suspension of enforcement of Art. 14,

21, and 22 during the

Proclamation of emergency the answer is even in absence of article 21 f constitution the right to life and

liberty of a person could bot be deprived without authority of law Without such sanity of life and liberty the

distinction between lawless society and one governed by laws would cease to have meaning.

Moreover the fundamental rights conferred under Indian constitution have a large base in natural law theory.

Almost all the fundamental rights conferred under Indian constitution relates to natural law as all the

fundamental right are the basic rights of human being which the natural law theory tries to confer upon the

society since age of Greeks.

Conclusions:

Apart from its criticism the use of natural law has been prevalent since ages, even in the present legal system

the natural law is used extensively. The modern judical system have been founded on the British Pattern the

fine principles of equality, justice and good conscience and natural justice occupy an importance in Indian

law. The higher values of universal validity, righteousness, duty, service to mankind, sacrifice, non-violence

etc were already incorporated in ancient legal system. The principles of natural law are embodied in dharma

referred to duties of man towards gods, sages, man and lower animals and creatures. It has been

characterised as a belief in conservation of moral values.

NOTES

NOTES

Documents

ANALYTICAL SCHOOL AND PURE THEORY OF LAW Skamkus.org/coursematerial/JURISPRUDENCE 2015-16.pdf · K A M K U S 5 Strictly for Internal Circulation - KCL Law and Morals in the Pure Theory