Schools of Jurisprudence - 1 | Jurisprudence - CLAT PG PDF Download

Natural School of Law

• Natural law thinking plays a crucial role in modern political and legal ideologies.
• Natural law refers to a legal system inherent in nature since the beginning of life on Earth.
• Unlike positive law, natural law does not rely on a politically superior authority for its formulation.
• Natural rights are believed to be granted and protected by a higher power, such as God.
• Lord Lloyd describes natural law as a principle of self-preservation or an operative law of nature that guides human behavior.

History

• Friedmann views the history of the natural law school as humanity's quest for absolute justice, albeit with failures.
• Natural law has consistently emerged throughout history as a concept superior to positive law.
• Despite evolving socio-political conditions, the idea of natural law persists as a standard above positive law.
• Natural law has played a role in transforming Roman civil law, legitimizing international law, and opposing absolutism.
• Its application has varied over time, serving different purposes in different contexts.

Greece

• The Greeks are credited with laying the groundwork for the natural law school.
• Heraclitus identified a rhythm in events, referring to it as "destiny, order, and reason of the world," which formed the basis of natural law.
• According to the Greeks, nature signifies a specific order in things, and they recognized the connection between this order and law.
• This perspective influenced the Greek school of enlightenment in the 5th century B.C., shaping the philosophical thought of the era.

Socrates

• Socrates emphasized the importance of adhering to positive law as a component of natural law.
• However, he argued that natural law should not be followed blindly; it requires critical evaluation by individuals using their insight.
• This aspect of natural law was significant during Socrates' time, highlighting the need for thoughtful consideration of laws.

Plato

• Plato's philosophy centered on the idea of natural justice, suggesting that individuals possess an innate sense of justice bestowed by a divine power.
• This sense of justice is crucial for individuals to form unions with others, ensuring their survival.
• An ideal State, according to Plato, is one where individuals are assigned roles that align with their inherent capabilities.
• His work, "The Republic," reflects his quest for the foundation of justice and the principles of natural law.

Aristotle

• Aristotle viewed the world as a composition of nature, with humans being a part of God's creation.
• He believed that humans are endowed with reason, setting them apart from other creatures.
• Living in accordance with reason, according to Aristotle, is synonymous with living naturally and in harmony with the natural order.

Rome

• The Romans applied natural law concepts practically, transforming their legal system rather than confining it to theoretical discussions.
• They utilized natural law principles to shift from a rigid legal framework to a more cosmopolitan one.
• The Roman legal system comprised three divisions: jus civile, jus gentium, and jus natural.
• Jus civile pertained to Roman civil law applicable only to Roman citizens.
• Jus gentium involved universally accepted natural law principles applicable to foreign citizens.
• Roman jurists did not prioritize natural law over positive law or vice versa, focusing on their practical applications instead.

India

• The Hindu legal system, rooted in the concept of "Dharma," is one of the oldest legal systems globally.
• Dharma, akin to natural law, signifies the order established by nature and humanity's adherence to this natural order.
• Dharma encompasses the notion of nyaya or justice, emphasizing the cosmic order that sustains the universe.
• Hindus believed that dharma ensures human existence in harmony with the cosmos, reflecting a deep connection between law and natural order.

Natural Law and Social Contract

The political, social, and economic developments in medieval Europe opened upon an entirely fresh perspective towards the principles of natural law. The idea of natural law was used to support that of a social contract. 

• The social contract theory argues that 'state' is nothing, but a product of an agreement entered into by individuals in order to protect their life, liberty, and property.
• The interrelation between natural law and social contract theory can be found in the works of the following chief exponents of the social contract theory:

Hugo Grotius

• Grotius believed the social contract theory is a historical fact.
• He argued that by entering a social contract, the people are forfeiting their right to punish the ruler howsoever bad his government may be.
• He further went on to state that the ruler was also bound by the basic principles of natural law by virtue of its existence even before the social contract was entered into by the people and the ruler.

Thomas Hobbes

• Hobbes believed in the existence of natural law. However, his approach towards its study was completely different from those who regarded the idea of natural law as higher to that of positive law.
• He expounded upon the principles of natural law in the form of natural rights possessed by each individual. He recognized these rights as "inalienable".
• He recognized all the rights related to self-preservation of a human being as natural rights.
• He further went on to say that individuals are always in the fear of their rights being violated or unlawfully taken away by another individual. Thus, to remove such insecurities, the rights were vested into an entity called the State which was tasked with protecting and preserving the natural rights of its citizens. This is how Hobbes beautifully synthesized the concepts of natural law and the social contract.

John Locke

• Locke too recognized the existence of certain inalienable natural rights. He categorized them as "life, liberty, and estate".
• However, he is said to be an opponent of Hobbes for while Hobbes's social contract is based on absolutism, Locke's social contract is based on liberalism.
• According to him, individuals came together to constitute an entity called State to protect the three inalienable natural rights, namely, the right to life, liberty, and property.
• Social justice, according to him, referred to the protection of life and the economic rights of an individual by the State. A society can be said to be fair and just only if it protects the economic interests of the people.
• His idea of justice stemmed from the common belief of classical liberals that private property is the source of liberty and that it also ensures the effective protection of such liberty.

Rousseau

• According to Rousseau, "Man by nature never thinks and he who thinks is a corrupt creature. "
• He believed that the state of nature was an idyllic state wherein man did not reason things out and lived-in absolute liberty with a free mind.
• Slowly, mischief crept into the human mind and crimes like theft and murder started taking place. Thus, to protect natural rights, the individuals came together to constitute a body.
• Through the social contract, everyone surrendered their rights to a body known as the State whose primary function was to protect the rights that have been surrendered.
• According to him, an individual cannot be oppressed by a State since he himself is a member of it.

Kant

• Kant made a sharp distinction between natural rights and acquired rights and recognized only one natural right i.e., the right to freedom.
• However, the same also had one limitation; that it must harmoniously coexist with the right to freedom of other individuals.

Decline

• The decline of natural law theories took place in the 18th Century.
• With the advancement of empirical methods of study and scientific behavioralism, natural law theories were denounced primarily because its source was said to be a "divine entity".
• Montesquieu and Hume attacked some of the core beliefs of natural law such as the element of reason present inherently present in all human beings.
• Hume went on to establish that the element believed to be reason by natural law theorists is, in fact, confusion.
• Bentham and Austin mercilessly criticized the natural law school as, "simple nonsense; natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts."

Revival

• The revival of natural law theories began towards the end of the 19th Century.
• It came up as a reaction to positivist legal theories of the 19th Century.
• The First World War shattered several ideals of western societies and it was realized that positive law alone is incapable of solving all problems in the new social order.
• The emergence of ideologies such as Marxism and Fascism and their counter ideologies led to the revival of natural law theories.
• The revived natural law theories took analytical, historical as well as sociological approaches into consideration.
• Instead of formulating abstract ideas, it took practical problems into consideration and concentrated upon relativism.
• The concept of natural law has undergone several changes throughout the course of history.
• It has supported the emergence of several ideologies which have played a prominent role in world history.
• In conclusion, it can be said that the natural law school has, with its various theories, greatly contributed to the overall development of law.

Imperative Theory

• The Analytical School, also known as the Austinian School, was established by John Austin. It is called the Imperative School because it views law as the command of the sovereign. This approach is termed "Positivism" by Dias because it focuses on positive law.
• Prominent in the nineteenth century, the Analytical School contrasts with the eighteenth-century emphasis on Reason. Thinkers like Bentham and Austin shifted the focus from natural law to a more empirical and positivistic understanding of law.
• Bentham introduced expository jurisprudence, which deals with law as it is, while Austin expanded on this with detailed analysis. Austin's work laid the foundation for the theory of positive law, building on Bentham's ideas.
• The Analytical School emerged partly as a reaction against the earlier Natural Law School, which held that natural law principles could override man-made law. The Analytical School sought to provide a more concrete and empirical understanding of law, moving away from the abstract notions of natural law.

Exponents of Analytical School

The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart.

Bentham

• Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he rejected the clinches of natural law and expounded the principle of utility with scientific precision.
• He divided jurisprudence into expository and censorial.
• The former deals with the law as it is while the latter deals with the law as it ought to be. Bentham's analysis of censorial jurisprudence is indicative of the fact that the impact of natural law had not completely disappeared that's why he talked of utility as the governing rule.
• Bentham's concept of law is an imperative one for which he himself preferred the term "mandate".
• A law may be defined, said Bentham, as an assemblage of sin declarative of a violation conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons who, in the case, in question are or supposed to be subject to his power.

Austin

• In 1832, John Austin's lectures were published under the title of "the Province of Jurisprudence Determined". This was the first systematic and comprehensive treatment on the subject which expounded the analytical positivist approach and because of this work, Austin is known as the father of the Analytical School.
• Austin built on the foundation of expository jurisprudence laid by Bentham and did not concern himself with extra-legal norms.
• To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides jurisprudence into general jurisprudence and particular jurisprudence.
• Positive law is the outcome of state and sovereign and is different from positive morality. The great contrast between positive law and positive morality, according to Austin, is that the former is set by a political superior whereas the latter is not the offspring of state and sovereign, hence it is not law.
• Austin's approach, analysis and deduction are, however, applicable to a unitary polity based on parliamentary sovereignty. It does not have that relevance to legal systems as in India and the United States of America.

Holland

• Holland is another supporter of the analytical school. He is the follower of Austin. However, he differs from Austin as to the interpretation of the term positive law.
• For him, all laws are of not the command of sovereign, rather, he defines law as rules of external human action enforced by a sovereign political authority.

Salmond

• Salmond also belongs to the analytical school but differs from his predecessors in several ways. These are:
• He gives up the attempt to find the universal elements in law by defining jurisprudence as the science of civil law. According to him, there is nothing like universal element in law because it is the science of law of the land and is thus conditioned by factors which prevail in a particular state.
• He deals with law as it is but the law to him is to be defined not in terms of the sovereign but in terms of courts. Law is something which emanates from courts only.
• He did not agree with Austin that analysis of law can be done with the help of logic alone. He points out that the study of jurisprudence which ignores ethical and historical aspects will become a barren study.

Tenets of the Analytical School

The Analytical School of jurisprudence focuses on the nature and structure of law through systematic analysis. Its key tenets include:

Difference between Law as it Is and Law as it Ought to Be

• This is a common trait among positivist thinkers. For instance, Bentham's view on Law and Morals has a similar course but different boundaries.
• Austin acknowledges the role of moral factors in the creation of law but does not integrate morals into his theory. He believes that positive law has its own standard.
• This perspective has faced criticism from scholars like Dias, Hughes, Paton, Stone, and Fuller.

Concentration on Positive Law

• Analytical jurists focus exclusively on positive law, concerned only with the facts of law.
• They aim to represent the entire body of legal precepts in a system as if created at once, following a logical plan.
• Through analysis, they seek to uncover this logical plan.

Law as a Product of the State

• Analytical jurists view law as a product made consciously by lawmakers, whether through legislation or judicial decisions.
• They emphasize the establishment and authoritative recognition of a rule of law by the state, rather than the content of the precepts.
• Thus, law is seen as a product of deliberate and increasingly determinate human will.

Use of Logic

• Analytical jurists rely primarily on logic for studying law, dismissing ethical considerations.
• Historical or social factors hold no value for jurists of this school.

Statute Law

• Statute law, or law made consciously by the state, is the primary focus of the Analytical School.

Kelsen's Pure Theory of Law

• Kelsen's Pure Theory of Law aims to establish a science of law that is free from influences of social sciences like psychology, sociology, or social history. He seeks to create a legal science that avoids metaphysical, ethical, moral, psychological, and sociological elements.
• Kelsen defines law as an order of human behavior that is coercive, with its coercive power deriving solely from the sanctions attached to the law itself. His goal is to determine what can be theoretically known about law in any context, at any time.

Essential Foundations of Kelsen's Theory

• Legal theory aims to reduce chaos and bring unity, similar to any science.
• Legal theory is knowledge of what law is, not what it ought to be.
• Law is a normative science, focusing on the way of ordering changing contents.
• Legal theory is concerned with the ordering of norms, not their effectiveness.
• Legal theory relates possible law to actual law.
• Jurisprudence involves the examination of a hierarchy of norms, with norms being hypothetical propositions. A dynamic system constantly creates new norms based on a basic norm, while a static system is determined by the basic norm.

Criticism of Kelsen's Theory

• Kelsen's concept of Grundnorm is considered vague and a fiction by some jurists.
• The Grundnorm is seen as deriving its efficacy from its minimum effectiveness, but Kelsen does not provide a criterion for measuring this effectiveness.
• Kelsen's theory has been criticized for not being pure due to the necessity of political and social facts in determining the minimum of effectiveness.

Legal Realism

Legal realism focuses on the actual functioning of law rather than its intended goals. It studies how law operates in practice, emphasizing the role of judges and the influence of social factors. This approach emerged as a response to the need for balance between societal welfare and individual rights, especially after the Industrial Revolution.

American Realism

• Focus on Reform: American realism aims to reform the law by understanding it as it is, not as it should be.
• Judicial Role: American realists emphasize the role of judges in shaping the law through their decisions.
• Human Factors: They study the human factors involved in legal decision-making.
• Notable Figures:
  • Gray: Considered the judiciary more important than the legislature and acknowledged non-logical factors in judgments.
  • Justice Holmes: Proposed the "bad man's theory," focusing on law from a criminal's perspective and separating law from morals.
  • Jerome Frank: Questioned the uniformity of legal rules and the accuracy of facts established by judges, emphasizing the uncertainty of law.
  • Carl N. Llewellyn: Viewed law as a complex institution and introduced the concept of "law-jobs" for societal functions.

Scandinavian Realists

• Abstract Approach: Scandinavian realists take a more abstract and philosophical approach to law compared to American realists.
• Critique of Natural Law: They reject the metaphysical ideas of law and critique the foundations of natural law.
• Notable Figures:
  • Hagerstorm: Critiqued the empirical foundations of rights and emphasized the psychological significance of right.
  • Olivercrona: Focused on investigating law rather than its nature, rejecting ideas of binding force and the concept of rights.
  • Ross: Distinguished between normative and descriptive laws, focusing on legal orders and court positions.
  • A. V. Lundstedt: Rejected justice and normative aspects of law, considering only physical facts in legal study.

Critique: Critics argue that legal realism undermines the importance of statutory principles and rules, overemphasizing litigation and human factors.