Sociological School of Jurisprudence

• Anjali Dixit, Asst. Prof., Kanpur University
• Legal Article
• Tue, 31 Mar 2020 12:55 PM

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

The main feature of Sociological school of law:

1. Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content.
2. They consider law as a social institution essentially interlinked with other scientists and the direct impact of the law on society with its formation according to social needs.
3. Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like the functional aspect of law or defining the law in terms of courts rulings and decisions with a realistic approach of law.

The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as founding the father of the sociological school of law.

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

After Comte, many Writers and Jurist tried to connect the society and law together. And tried to find a link between law and sociology.

Meaning of Sociological school of Jurisprudence

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

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

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

Legal and Sociological aspect of Sati

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

The legal aspect:

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

The sociological aspect

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

Reason for the emergence of Sociological School of Jurisprudence

What is Laissez-Faire?

According to the Britannia dictionary, “ Laissez-faire is the policy of minimum governmental interference in the economic affairs of individuals and society.”

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

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

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

Jurist of the Sociological School of Jurisprudence

Montesquieu (1689-1755)

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

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

Eugen Ehrlich (1862-1922)

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

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

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

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. His major works are:

1. Spirit of the common law.
2. An introduction to the philosophy of law.
3. Interpretation of legal history.
4. Law and morals.
5. The formative era of American law.
6. Administrative law.
7. Social contract through law.
8. The task of law.

He treated law as a means of affecting social control and his contribution to jurisprudence is great.

The functional aspect of the law.

Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules, principles, conceptions and standard of conduct as a developed technique of social engineering. The main function of law is to satisfy the maximum number of people. Not only this function but also to reconcile the conflict in the interest of individuals and society.

Theory of Social Engineering

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

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

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

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

He describes that there are various kinds of interests in society and the main task of law is to make all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators and jurists must work with a plan and make efforts to balance these three categories: Public, Private and Social Interests.

Interest Theory

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

• Individual/ Private  Interest

• These are claims or demands involved from the standpoint of the individual life which consists of interest of personality, interest in domestic relations and interest of substance. The individual’s interest is known as private interest like physical integrity, reputation, etc. and they’re protected by the law of crime, torts and Contract Law, etc.
• Domestic relations of a person such as a husband and a wife, parents and children, etc. are protected by Personal Law.
• The interest of the property, succession, contractual relations, testamentary relations, etc. are protected by Property Laws.

• Public Interest

• These are the claims or desires asserted by the individual from the standpoint of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. Main public interest is interest in the preservation of States.
• Administration of trust, charitable contracts, protection of the environment, regulation of public employment, etc. are being protected by the States.

• Social Interest

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

• Interest in preservation of peace and health.
• Preserving social institutions of religion, politics and economics.
• Preserving certain prohibiting acts like prostitution, gambling, etc.
• Conservation of social and natural resources.
• General progress including economic, political and cultural areas. For e.g.- Freedom of Trade and Commerce, Speech and Expression, etc.
• Interest to make a political, physical, social and economic life to promote personality.

Jural Postulates by Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. He has mentioned five kinds of jural postulates:

1. In a civilised society, man must be able to assume that others will not commit any intentional aggression on him.
2. In a civilised society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour.
3. In a civilised society, man must be able to assume that those with whom they deal as a number of societies will act in good faith.
4. In a civilised society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others.
5. In a civilised society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilised life and with the changes in society, the jural postulates may emerge or originate in society.

• Criminal

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

• Law of Patent

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

• Contrac

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

• Torts

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

• Strict Liability

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

Leon Duguit (1859-1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law).  He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence. Duguit’s theory was based upon Auguste Compte statement that “the only right which man can possess is the right towards his duty.”

Social Solidarity

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

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

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

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

Importance of Duguit’s theory:

1. Over emphasises was given on duties rather than rights.
2. The direction towards mutual cooperation among individuals in society.
3. Law as an instrument of social solidarity to promote justice.

Sociology of law

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

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

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

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

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

(4) the sociology of law struggles with reality.

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

Ihering:
Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He was against the theory of individuals welfare and favours the factor that social interest of society must have a priority over an individual’s interest and the purpose of the law is to protect the interest of society, that is why his theory is known as ‘Jurisprudence of Interest’ which emphasises on the sociological aspect of Sociological School of Law. He described the law in following aspects:

1. Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society.
2. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, “law is coercion organised in a set form by the state”, which means that he justified coercion by the state for the purpose of social welfare.
3. Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that’s the reason that Ihering theory is also known as the theory of “Social Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled by the state by means of coercion, reward and duty for achieving social control for the welfare of society. Friedman said that “Ihering was declared as the father of modern sociological jurisprudence because of his concept of law as one of the important effective factors to control social organisms.”

Ehrlich:
Ehrlich believed in the spontaneous evolution of law in the context of existing society. According to him, law originates from existing institutions of marriage, domestic life, possession, contract, inheritance, etc. They govern society through living laws. By living laws, he means that extra-legal control which governs/regulate the social relations of man. In his opinion, the centre of gravity of legal development in the present times or in the past lies neither with the juristic science, nor in judicial decisions, but in society itself. His living law is the law which dominates social life even though it has not been known in the form of enactments or decisions of courts. So, the scope of living law is under than the statuary law of the state.
For example: There may be some enactments enforced in the sense that courts may apply them in the decisions in any issue but a community may ignore the enacted laws and lives according to the rules created by their mutual consent, like dowry system in India.


So, we summarise his theory by saying that the law need not be necessarily created by state or applied by courts or have a coercive legal compulsion behind it, but it is created by the groups in the society and thus it is clear that social life is governed by living law and it is a social reality which exists independent from state positive laws. Despite all the criticism that Ehrlich theory is unrealistic, his contribution to jurisprudence in reference to in relation between law, life and society is remarkable.

Author

Anjali Dixit

Assistant Professor

Faculty of Juridical Sciences

Rama University, Kanpur

Austin’ s Command theory

• Amaresh Patel
• Legal Article
• Mon, 30 Mar 2020 07:06 PM

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state. The first six lectures the most influential part of his work were published in 1832 under the title of "The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School. 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”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.

He confined his field of study only to the positive law. Prof. Allen thinks that it is proper to call the Austin's School as imperative school. This name he gave on the basis of Austin's conception of law - "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first six lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behaviour.

Austin define :  

Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man.

Human law is divided into two heads: Positive Law and Positive Morality. These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are the proper subject matter of jurisprudence.

Law is of two kinds :

(a) Law of God - Laws set by God for men

(b) Human Laws - Laws set by men for men.

Two kinds of Human laws

(1) Positive Law :

These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence.

(2) Other laws :

Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights.

Austin proceeded to distinguish between what he called -

(1) "Laws properly so called."

(2) "Laws improperly as called".

(1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called.

(2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity.

Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law.

Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law.

Law is Command :

According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.

Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands.

The basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

• Sanction.

• Sovereignty.

Law is command of sovereign which implies

(a) Duty

(b) Sanction

Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation.

Opening a new era approach -

(1) Austin laid down many of his propositions as deduced from English law as it was during his time. The credit goes to Austin for opening a new era approach.

(2) Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he wiped out many false notions which had obscured the true meaning of law and legal terms.

(3) Austin's classification and analysis of the concepts of English law has served as a guide for better English analytical jurists.

(4) Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's method is described as characteristic of English jurisprudence.

(5) Austin's theory was widely accepted in English and American jurisprudence. Later on his theory received increasing attention and respect from the Continent and Germans.

(6) Later Analytical theories have improved upon Austin's theory and have given a more practical and logical basis. Jurists like Salmond and Gray have improved upon it and considerably modified the analytical postivist approach. The Vienna school of law is the outbreak of Austin's theory.

(7) Even the defects of Austin's theory is the constant source of illumination; for his error's are often the mis-statement of truths of central importance for the understanding of law and society.

(8) Austin as a jurist kept himself free from the rival political ideologies of nationalism and internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer of modern positivist approach to law. Thus Austin made great contribution to jurisprudence.

Exceptions of Theory of Austin:

Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are:

1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced.

2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command.

3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement.

Criticism:

Austin’s trilogy implicit in the concept of law has invoked criticism.

1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them.

2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining testamentary document is not covered by Austin’s definition of law.

3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws.

4. Austin theory treats international law as morality: Austin doesn’t treat international law as it is lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace.

5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems.

6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics.

7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law.

Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and its clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence.

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state. The first six lectures the most influential part of his work were published in 1832 under the title of "The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School. 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”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.

He confined his field of study only to the positive law. Prof. Allen thinks that it is proper to call the Austin's School as imperative school. This name he gave on the basis of Austin's conception of law - "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first six lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behaviour.

Austin define :  

Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man.

Human law is divided into two heads: Positive Law and Positive Morality. These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are the proper subject matter of jurisprudence.

Law is of two kinds :

(a) Law of God - Laws set by God for men

(b) Human Laws - Laws set by men for men.

Two kinds of Human laws

(1) Positive Law :

These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence.

(2) Other laws :

Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights.

Austin proceeded to distinguish between what he called -

(1) "Laws properly so called."

(2) "Laws improperly as called".

(1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called.

(2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity.

Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law.

Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law.

Law is Command :

According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.

Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands.

The basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

• Sanction.

• Sovereignty.

Law is command of sovereign which implies

(a) Duty

(b) Sanction

Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation.

Opening a new era approach -

(1) Austin laid down many of his propositions as deduced from English law as it was during his time. The credit goes to Austin for opening a new era approach.

(2) Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he wiped out many false notions which had obscured the true meaning of law and legal terms.

(3) Austin's classification and analysis of the concepts of English law has served as a guide for better English analytical jurists.

(4) Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's method is described as characteristic of English jurisprudence.

(5) Austin's theory was widely accepted in English and American jurisprudence. Later on his theory received increasing attention and respect from the Continent and Germans.

(6) Later Analytical theories have improved upon Austin's theory and have given a more practical and logical basis. Jurists like Salmond and Gray have improved upon it and considerably modified the analytical postivist approach. The Vienna school of law is the outbreak of Austin's theory.

(7) Even the defects of Austin's theory is the constant source of illumination; for his error's are often the mis-statement of truths of central importance for the understanding of law and society.

(8) Austin as a jurist kept himself free from the rival political ideologies of nationalism and internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer of modern positivist approach to law. Thus Austin made great contribution to jurisprudence.

Exceptions of Theory of Austin:

Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are:

1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced.

2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command.

3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement.

Criticism:

Austin’s trilogy implicit in the concept of law has invoked criticism.

1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them.

2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining testamentary document is not covered by Austin’s definition of law.

3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws.

4. Austin theory treats international law as morality: Austin doesn’t treat international law as it is lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace.

5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems.

6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics.

7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law.

Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and its clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence.

Author

ANJALI DIXIT

ANJALI DIXIT

ASSISTANT PROFESSOR

FACULTY OF JURIDICAL SCIENCES

RAMA UNIVERSITY, KANPUR

JURISPRUDENCE

• Anjali Dixit, Asst. Prof., Kanpur University
• Legal Notes
• Wed, 25 Mar 2020 04:49 PM

What is the Jurisprudence?

Theory of law – Attempt to understand legal structures – Requires philosophical enquiries

Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is the study of theories and philosophies regarding law.

Why do we obey law?

Retribution – fear of punishment – safety

Meaning of Jurisprudence:

Jurisprudence is derived from the Latin terms ‘Juris’ meaning legal and prudentia meaning "knowledge". It is that science which deals with the "Knowledge of law".

Jurisprudentia (Latin Word), Juris (Law) + Prudencia (Knowledge) =Knowledge of law

Aspects of Jurisprudence

Jurisprudence has many aspects, with four types being the most common. The most prevalent form of jurisprudence is that it seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law.

Definition of Jurisprudence

It is very difficult to define term 'jurisprudence', However, several attempts were made in this context to define the term.  Some of the definitions of the term "jurisprudence" given by various eminent jurists as under

Ulpian 

―Jurisprudence is the observation of things human and divine, knowledge of just and unjust.

John Austin - 

―Jurisprudence is the Philosophy of positive law.

Positive law means law made by sovereign. He was the first jurist to make jurisprudence as a science. There are two types of jurisprudence,

(1) General Jurisprudence & (2) Particular Jurisprudence.

(1) General Jurisprudence : - General Jurisprudence is the philosophy of positive law.

(2) Particular Jurisprudence:- 'particular jurisprudence is the science of any such system of positive law as now actually obtains or once actually obtained in a specifically determined nation or specifically determined nations.

 Criticism: 

             Austin's definition criticised by Salmond and Holland and other Jurists on the ground that it is not proper and appropriate to classify as the general Jurisprudence and Particular Jurisprudence.

Sir Thomas Erskine Holland: 

            An English Jurist Sir Holland defines, Jurisprudence as, " Jurisprudence is the formal science of positive law'"

Salmond: 

" Jurisprudence is the science of the first principle of the civil law."
               Dean Roscoe Pound defines jurisprudence as " the science of law, using the term law in the juridical sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice".

Dr. K.C. Allen ―Jurisprudence is the scientific synthesis of the essential principles of law

Keetan ―Jurisprudence is the study and systemic arrangement of the general principles of law.

Keeton’s definition of jurisprudence seeks to explain the distinction between public and private law.

H.L.A.Hart  Jurisprudence is the scientific study of Union of rules Primary and Secondary Rules.

KIND OF JURISPRUDENCE

Bentham There are two types of jurisprudence (1)Expository/ Expositorial (What the law is)

(2)Evaluative/Censorial (What the law ought to be)

Austin There are two types of jurisprudence, (1) General Jurisprudence & (2) Particular

Jurisprudence.

Salmond There are two types of jurisprudence (1) Generic Jurisprudence and (2) Specific

Jurisprudence

Linkage between Jurisprudence and other sciences

1. Sociology and Jurisprudence

 The sociological approach to Jurisprudence is easily the most important relation between Jurisprudence and other sciences. The reason why it is so important is that the sociological approach is much more concerned in the working of law rather than its fundamentals and basics.

Sociological jurists want to know the effect of law in our society and how law and society work together. Sociological Jurisprudence sees the law as an institution.

2. Economics and Jurisprudence

Economic studies focus on wealth and its distribution in society with the aim to regulate the lives of people of a State.  Similarly, the law also focuses on regulating the lives of the people through rules and regulations. Initially, the relationship between Jurisprudence and Economics was ignored for a long time until jurists realised the importance of economics in law. Both of them try to develop the society and improve the life of an individual. Karl Marx was a pioneer in this regard.

3. History and Jurisprudence

Historical Jurisprudence mainly forms a significant part of legal history as a subject. Law has been around for centuries, and as we know Jurisprudence is the study of law so if we don’t trace back the origin and development of laws, then we are missing out on a theoretical aspect of Jurisprudence.

1. Jurisprudence and Politics

In a politically organized society, there are regulations and laws which lay down authoritatively what a man may and may not do.

History studies past events. Development of Law for the administration of justice becomes sound if we know the history and background of legislation and the way law has evolved. The branch is known as Historical Jurisprudence.

4. Ethics and Jurisprudence

Ethics talks about the fact that how the law should be in an ideal state. Ethical Jurisprudence is focused on the fact of how law can be used as an instrument to affirm positive ethics.

Schools of Jurisprudence

There are many schools of jurisprudence which concentrate on the nature and function of law. For our practical purpose we shall confine ourselves to the treatment of the most important schools. Hence, in this material the following schools shall be discussed briefly.

Natural Law School:  the oldest school of jurisprudence, it upholds that beyond, and superior to the law made by man are certain higher principles, the principles of natural law. These principles are immutable and eternal. With regard to the highest matter man-made law should be in accord with the principles of natural law. And to the extent that man-made law conflicts with natural law, it lacks validity: it is not a valid, binding law at all.

Legal Positivism:  also called Analytical School of jurisprudence, it holds that there is no higher law than that created by governments, legitimate or self imposing, and that such law must be obeyed, even if it appears unjust or otherwise at odds with the “natural” law. Unlike the natural law theory, this one treats law and other values, such as, morality and religion separately.

Historical School: this school of jurisprudence views law as an evolutionary process and concentrates on the origin and history of the legal system.  The law of a nation, like its language, originates in the popular spirit, the common conviction of right, and has already attained a fixed character, peculiar to that people, before the earliest time to which authentic history extends. In this prehistoric period the laws, language, manners and political constitution of a people are inseparably united and they are the particular faculties and tendencies of an individual people bound together by their kindred consciousness of inward necessity.

Sociological School: Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness of its people, sociological conception of law locate the law in the present-day institutions of its society. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society. They are also concerned with the practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences. 

Legal Realism conceives law as judge made and by doing so it puts the court at the center. It contends that positive law cannot be applied in the abstract; rather, judges should take into account the specific circumstances of each case, as well as economic and sociological realities. In other words, the law should not be static, it must adapt to various social and economic realities. This theory emphasizes the role of the judge that is it emphasizes that law is made not found, and considers judges as the true law makers.

NATURAL LAW SCHOOL JURISPRUDENCE

• Anjali Dixit, Asst. Prof., Kanpur University
• Legal Notes
• Wed, 25 Mar 2020 04:47 PM

Natural law is the moral theory of jurisprudence and often states that laws should be on the basis of ethics and morals. This law also states that law should focus on what is ‘correct’.

In addition, natural law was found by humans on their disposition of reasoning and choosing between good and bad. Hence, it is said that this law plays a significant role in establishing moral and ethical standards.

Natural Law – It’s Meaning & Definition

There is no unanimity about the definition and exact meaning of natural law and the term “natural law theory” has been interpreted differently at different times depending on the needs of the developing legal thought. But the greatest attribute of the natural law theory is its adaptability to meet new challenges of the transient society.

Natural Law & Positive Law

There is another way of looking at natural law. It is viewing at it form positivistic or empiricist angle abstract metaphysical ideals and notions which is described generally as natural law.

According to FULLER “by legal positivism I mean that direction of legal thought which insists on drawing a sharp distinction between law that 'is' and that 'ought' to be, natural law on the other hand is the view which denies the possibility of a rigid separation of the 'is ’ and the 'ought ’ and which tolerates a confusion of them in legal discussion. There are of course, many 'systems ’ of natural law. Men have drawn their criteria of justice and of right law from many sources from the nature of things, from the nature of man, form the nature of God But what unites the various schools of natural law and justifies brining them under a common rubric, is the fact in all of them a  certain coalescence of the 'is’ and 'ought ’ will be found.

Natural law is a philosophy of law that focuses on the laws of nature.

Moreover, this school of jurisprudence represents the belief that there are laws common to all societies. This is irrespective of whether they are written down or can officially enact.

Natural law can be broadly divided into four classes:

1. Ancient theories
2. Medieval theories
3. Dark Ages
4. Renaissance theories

Modern theories

Ancient Theories

Greece

The Greeks are said to have laid the foundations of the natural law school. The Greek thinkers developed the idea of natural law and laid down its essential features.

Heraclitus observed a certain rhythm in events and termed it as ‘destiny, order and reason of the world. Heraclitus was the first Greek philosopher who pointed at the three main characteristic features of law of nature, namely

1. Destiny,
2.  Order and
3.  Reason

Socrates view on Natural Law (470 399 BC)

The name of Socrates occupies a prominent place among the Stoic philosophers of the ancient time. It is because of the "human insight” that a man has the capacity to distinguish between good and bad and he is able to appreciate the moral values. Thus, according to Socrates, “virtue is knowledge "and “whatever is not virtuous is sin”. To him, justice may be of two kinds, namely,

1. Natural justice, and
2. Legal justice.

Aristotle’s view on Natural Law (384-322 B.C.)

Stoice  had widened the meaning and scope of natural law, which no longer remained a mere knowledge of universal and ultimate laws but extended to man’s insight which enables him to appreciate the absolute eternal moral rules. Aristotle came out with a more logical interpretation of the natural law theory. According to him, a man is a part of nature in two ways.

Plato (427-347 BC)

Socrates’ disciple, Plato carried further the natural law philosophy through his concept of ideal state which he termed as “republic”. Plato extended that only intelligent and worthy person should be the king.

Rome

The Romans did not confine natural law to theoretical considerations. Instead, they explored its utility by applying its concepts practically. Romans used principles of natural law to transform their rigid legal system into a cosmopolitan one.

Stoics view on Natural Law

Stoics was inspired by Aristotle’s theory and based on Aristotle’s theory developed his own theory of natural law but made some key changes and made it more ethical. According to him, the world is governed by reason

Dark Ages

Nature to be overcome

During dark ages the early Christian Fathers expressed views on the “law of nature” from a theological base. Important of them is ST.AUGUSTINE. According to him, the union with divine is the end of law.

Medieval Theories

The period from12th century to mid-fourteenth century is reckoned as the “medieval age " in the European history. This period was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the superiority of Church over eh state. They used natural law theory to propagate Christianity and to establish a new legal order and political ideology based on morals and theology. The Christian saints especially Ambrose, St; Augustine  and Gregrory propagated a view that divine law was superior to all other laws.

St. Thomas Aquinas (1225-1274)

Catholic philosophers and theologians moved away from the orthodox interpretation of natural law and gave a more logical and systematic theory of natural law. He is considered to be the representative of the natural law theory of his age.

Renaissance Theories

General awakening among the masses coupled with new discoveries of science during the 14th and 15th centuries shattered the foundation of established values.  This period saw major changes in all aspects of knowledge, this period was marked by the emergence of new ideas, new branches of knowledge and discoveries of science shattered the foundation of established values.