Updated November 10, 2022
The law is subject to interpretation and hence, there are more than one School of Jurisprudence. The term “Jurisprudence” finds its roots in Latin term “Jurisprudentia”. “Juris” means law and “prudential” means knowledge of the law. However, Jurisprudence is not merely the knowledge of the law, but it is systematic knowledge of the law.
Therefore, Austin the father of the analytical school of jurisprudence calls the Jurisprudence a “philosophy of positive Law”. On the basis of differences in the definition of the law, there are four divisions of the school of Jurisprudence and each division defines the law in different ways. The four divisions of schools of jurisprudence are listed below.
1. Analytical School of Jurisprudence
2. Sociological School of Jurisprudence
3. Historical School of Jurisprudence
4. Philosophical School of Jurisprudence
Analytical School of Jurisprudence
The main aspect of this school is the “Relationship of Law with the State”. The main exponents of this school of Jurisprudence are Jeremy Bentham and John Austin. Both are known as the fathers of the Analytical School. Let’s start with the aspect of Jeremy Bentham.
1. Jeremy Bentham
Bentham in his book “limits of Jurisprudence defined” said that the main objective of the state is to provide and ascertain maximum liberty and happiness. This is known as the principal/doctrine of utility
According to the principle of utility, if any action or law increases pleasure then it approves the action and if increases the pain then it disapproves the action. In a general sense, the ultimate purpose of the law is to bring pleasure and avoid pain.
Bentham was a supporter of “lessezfare” which means let the man be free. It means to say that a law should be enforced to eradicate the hurdle between a man and his freedom and if a man gets optimum freedom he will think of its welfare which can avoid pain bring harmony and happiness.
2. John Austin as to Analytical School of Jurisprudence
Essentially, Austin is known as the father of the analytical school of jurisprudence. His lecture was published in the book named “province of jurisprudence defined”. According to Austin, laws are kinds of rules laid down to differentiate the wrong and right.
These guidelines are laid down for the common man by those who are politically supreme. It can be understood in this way that a law is a command by the sovereign backed by sanction, which means anything that is not the command is not a law.
Since the main tool of jurisprudence according to Austin is an analysis of law that is why this division is known as the analytical school of jurisprudence and was developed in England, so it is also known as English School.
Sociological School of Jurisprudence
The main aspect of this school is the relationship between law and sociology. Sociology means understanding social behavior and human society. This school of jurisprudence does not understand the law in isolation, it considers the law a social phenomenon because the law has an impact on society.
It understands the law on the basis of existing relations in the society that’s why this school believes that law is something that should be used to create maximum happiness and minimum friction.
The sociological school was developed around the 19th to 20th century and lessezfare doctrine had played a major role in its development. People were getting shifted from social interest to individual interest like health education and welfare because around this period lesseszfare doctrine was also getting developed.
Many jurists like Duguit, Ehlrich, Ihering Pound, and Comte had played a major role in the development of the sociological school of jurisprudence. And we will discuss the contribution of these jurists. So, let’s start with the aspect of Ehlrich.
1. Ehlrich as to Sociological School of Jurisprudence
According to Ehlrich, the main source of the law is society means man in an association. He has given the term “living Law” which means every relation and deal made by people among themselves in the society is affected by the law. Explaining further, he says that the center of gravity of all legal development is not in legislation or judicial decision but in society itself that is why according to Ehlrich the main source of the law is society.
2. Roscoe Pound
Father of sociological school, Pound coined the term “social Engineering”. According to him, just like an engineer doesn’t stop after getting experienced and making discoveries but uses those experiences to make new devices and discoveries. Similarly, we should grant law as a body of knowledge and experience to carry out a large part of social engineering, meaning best use of law is to resolve the problem within the society.
He goes on explaining that interests of individuals are diverse. And, if every individual started to consider his own interest as supreme then conflicts of interest would arise in the society. That is why he opined that law should be enforced/used to create harmony and happiness in society.
Let’s understand by examples, Article 19 grants people the freedom of speech, and the state has the power of restriction. In a democratic state, there should be a balance between these two, neither freedom should be more dominant nor should be the restrictions.
Considering harmony & happiness supreme in society, he clubbed the various interest of the society and propounded five broad jural postulates. These are criminal law, the law of patents, the law of contracts, law of torts and strict liabilities. In case a conflict of interests at any point of time, these five interests should be protected to maintain balance and harmony in society.
3. Auguste Comte
Comte is known as the founder of the sociological school and was the first to use the word “sociology”. His second major contribution was an organic theory. According to him, society is like an organism that could progress when it is guided by scientific principles.
4. Leon Duguit
Duguit was mainly influenced by the proposition of Durkheim and Comte. Durkheim was the person who categorized the needs of individuals into two groups. The first one was the common interests of the individuals and the second one was the diverse interest of the individuals.
The latter one was further elaborated by Duguit. According to him, the prominent feature of society is the interdependency of the individuals and that interdependency has been given the term “social solidarity”. According to him, the main objective of the law is to promote social solidarity, and something which does not promote “social solidarity is not a law.
5. Rudolf Van Ihering
Ihering is known as the father of modern sociological jurisprudence. He combined the principles of analytical and sociological jurisprudence. According to him, the main objective of the law is to protect a social interest that why he says that the law is like a guarantee for the protection of rights and the condition of life in society.
Since this school advocates that society and law are interrelated to each other and the main objective of the law is to protect social interests or to create balance and harmony in the society that’s why this school is known as the sociological school of jurisprudence.
Historical School of Jurisprudence
The main aspect of this school of jurisprudence is the direct relationship of law with a society that means the customs, people, and history/past of any society together creates their laws.
Let’s try to get in simple words that a particular society has its own needs and necessities and these needs and necessities determine the behavior of that society. The way its needs and necessities change, its behavior gets changed too and this is what this school believes at.
Many jurists have played a major role in the development of historical school of jurisprudence. Names include Montesquieu, Savigny, Henry Mine, and Puchta. Let’s start with the proposition Montesquieu.
1. Montesquieu as to Historical school of jurisprudence
He is the personality who started the historical school, you can also call him the first jurist of historical jurisprudence. He has stated in his book “spirit of the law” that law must keep pace with the changing needs of society.
2. Friedrich Carl Von Savigny
Savigny is known as the father of historical school and has given the “Volkgeist” theory which means general will of the people. He believes that law grows and develops with the needs of society. Savigny’s contribution to the historical school started with the development of “Vom Beruf” which was his “for and against” opinions, summarised in the form of an essay for the idea of German codification or made in German law in the famous pamphlet made by Anton Thibaut.
In the 18th Century Germany was divided into 41 kingdoms and territories and as we entered from one kingdom or territory to another the law would change which affecting many things other than commerce. So, Anton Thibaut a civil law professor of Germany thought there should be a law that was applicable in the whole of Germany.
Savigny however, strongly criticized the idea of German codification because he believed that law has a national character which means not every law is applicable everywhere. You can’t impose Indian law on the people of America that means the law of any country is a reflection of its condition, situation, and customs.
3. Henry Maine
He has given the concept of Legal Fiction and “status to contract” theory. According to the concept of legal fiction, a progressive society started to implement positive laws considering future changes to protect them.
He was mainly famous for the thesis given in his book “Ancient Law” that law and society developed from “status to contract”. According to the thesis, Individuals in ancient times were strongly subjected by status to traditional groups while in the modern era there are seen as autonomous agents, they are free to make contracts and form associations with whomever they want.
Considering the proposition of Henry Maine, the process of making law is basically a process of transformation so that societies can shift from “status to contract” to make societies more progressive.
4. Georg Friedrich Puchta
According to him, neither state nor can society make the law. Society means individuals in the association. It is, therefore, conflicts arise sometimes between general and self-interest of people and state can intervene in such situations only which means state provide such circumstances or enact such laws that could nourish both general wills as well as self-interest of the individuals. Basically, he considers that people like to be in unity so, they have to adjust their general will as well as personal interest.
This school believes that the law of any state is a result of its custom, people, and history that is why it’s called the historical school of Jurisprudence.
Philosophical or Natural Law of Jurisprudence
The Philosophical School of Jurisprudence is also known as Natural law. It believes that law should be based on moral and ethical values or reasoning which means law should focus on something that is correct. Let’s try to get with examples, we have two schools of jurisprudence, one is an Analytical school and another one is a Historical school.
The first one says that the state makes a law which means something which is a command by a sovereign backed by sanction is a law and that should be followed by the people. And the latter one says that law is derived from society which means something which creates maximum happiness to the maximum number of people is a law.
To say, both seem perfect but is it morally and ethically correct or reasonable enough, if a state enacts a slavery law or the maximum number of people in the society are in favor of this law? The answer is no. That is why the school advocates that law should be based on ethical values or reason. This way people would remain motivated for doing something good to create harmony and balance in society. According to philosophical school, something which is against the reasoning of law or natural law is not valid.
The main exponents of philosophical school are Aquinas, Immanuel Kant, John Locke, and Hegel. These jurists have played an important role in the development of the philosophical school of jurisprudence. Let’s start with the proposition of Aquinas.
1. Saint Thomas Aquinas
He believes that one should be known of what natural law is. Since he was 12th Century’s Jurist and around that period of time religions had a great effect on law and society. So, he suggested that one should rely on scripture, religions, and the evolution of god to know the natural law and reason.
2. John Locke as to Philosophical school of jurisprudence
Locke has stated in his book “two treatises of government” that every human being is equal and free according to his nature. His main contribution is “social contract theory” which is mainly developed by Hobbs and is further elaborated by Russow and John Locke.
This theory advocates that people have some rights like the right to life, the right to liberty, the right to property, etc. And people of the society consensually transfer these rights to the government so that they can enjoy these rights uniformly. And the prime duty of the government is to provide protection to them. If the government fails to do so then the people have the power to overthrow that government.
3. Immanuel Kant
Just like, the beginning phrase of the Indian Preamble “we the people” which means we all citizens have the consent in making the constitution applicable and effective. Exactly the same, Immanuel Kant believed that legislation could be made effective only when it represents the united will of the people.
According to him, the law is a sort of instrument through which we could harmonize the self-interest of the individual and the general will of the society to make the legislation more effective. He said that ‘act in such way that maxim of yours could be made maxim of general action’ which means “act according to the maxim that you would wish all other rational people to follow as if it were a universal law”.
4. George Wilhelm Friedrich Hegel
Hegel was a prominent jurist of a philosophical school. He believed that every struggle of humans that has taken place has been done for freedom only. That is why human and freedom has a strong connection but their relation is an evolutionary dynamic process which means their relationship constantly changes and progresses.
The concept of evolution is the main contribution of Hegel. This concept considers that since freedom is an evolutionary and dynamic process, every law would have to be evolutionary and dynamic. So that every person can achieve human perfection.
This school advocate that law should be based on ethical values or reasoning so that people could remain motivated of doing something good for society and this will help in creating balance and harmony. According to this school, anything that is against the natural law or reason is not a law that is why it is known as philosophical or natural law of jurisprudence.
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