Schools of Jurisprudence
There are basically five schools of jurisprudence:-
- Philosophical school or Natural law school
- Analytical School
- Historical School
- Sociological School
- Realist School
Philosophical school or Natural law school
The philosophical or ethical school concerns itself chiefly with the relation of law to certain ideals which law is meant to achieve. It seeks to investigate the purpose for which a particular law has been enacted. It is not concerned with its historical or intellectual content. The notable jurists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). These jurists regard law neither as the arbitrary command of a ruler nor as the creation of historical necessity. To them law is the product of human reason and its purpose is to elevate and ennoble human personality.
The chief exponents of Analytical school of Jurisprudence was Bentham and Austin. It is also called positivist school of jurisprudence because it considers law as it is and not as it ought to be. In fact it was Sir Henry Maine who coined the word ‘analytical’. This school is also called imperative school because it treats law as a command of sovereign. Bentham introduced legal positivism and treated legal theory as a science of investigation which should be approached through scientific method of experimenting and reasoning.
John Austin is the father of Analytical School. Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and the religion from the definition of the law. Prior to Austin the law was based upon customs and morals but Austin reduced all things from the definition of law.
This viewpoint is based on two principles.
- Law is the command of the sovereign.
- Force is the essence of law. (i.e. what cannot be enforced is not a law)
Analytical school of jurisprudence deals with the following matter:-
- An Analysis of the conception of civil law.
- The study of various relations between civil law and other forms of law.
- An inquiry into the scientific arrangement of law.
- An account of legal sources from which the law proceeds.
- The study of the theory of liability.
- The study of the conception of legal rights and duties.
- To investigate such legal concepts as property, contracts, persons, acts and intention etc.
This theory was bitterly criticized in the 19th century by the Pluralists and the sociological jurists. Despite its shortcoming this theory has explained a lot about law. The analytical school of jurisprudence provides that law must be made by the state in the interest of general welfare. It favours codification of law and regards law as a command with legal sanction behind it.
Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates from the social custom, conventions religious principles, economic needs and relations of the people.
According to this theory law is the product of the forces and influence of the past. Law is based on general consciousness of people. The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law. Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.
Savigny is regarded as the founder of the historical school. He has given the Volksgeist theory. According to this theory, law is based upon the general will or free will of common people. He says that law grows with the growth of Nations increases with it and dies with the dissolution of the nations. In this way law is national character. Consciousness of people. In other words, according to this theory law is based on will or free will of common people. A law which is suitable to one society may not be suitable to other society. In this way law has no universal application because it based upon the local conditions local situations, local circumstances, local customs, elements etc. All these things effect law and make it suitable to the society.
According to Burke, “Law is the product of the General process. In this sense it is dynamic organ which changes and develops according to the suitable circumstances of society.
This theory has some defects. Being conservative in its outlook it relies on past, however its merit is that it shows that law must change with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way it supplemented the analytical school of law.
Sociological School of Jurisprudence
The sociological school of jurisprudence emerged as the synthesis of various juristic thoughts. The exponents of this school treat law as a social phenomenon. According to them, law is a social function, an expression of human society concerning the external relations of its individual members. Montesquieu, Auguste Comte, Herbert Spencer, Duguit and Rosco Pound are the notable jurists of this school.
The exponents of this school lay grater stress on the functional aspect of law rather than its abstract contents. They regard law as a social institution essentially inter-linked with their disciplines bearing direct impact on the society.
Every individual has to observe these rules because he understands that only by following these rules he can realize all his needs. The supporters of sociological school are of the view that the state does not create the laws but only formulates, so that social unity is preserved and social needs are satisfied. So laws did not come from states but from society. The sanction behind law is not the force of state but the awareness on the part of individual.
In America, Sociological Jurisprudence has developed an extreme wing under the name of the realist school. They are concerned with the study of law as it works and functions which means investigating the social factors that makes a law on the hand and the social results on the other. The emphasize more upon what the courts may do rather than abstract logical deductions from general rules and on the inarticulate ideological premises underlying a legal system.
American Realism is not a school of jurisprudence but it is pedagogy of thought. The prominent jurists of this thought are Holmes, Gray and Jerome Frank.