Brief about Schools of Jurisprudence

INTRODUCTION

As Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence’.

If, we attempt to understand the meaning of the word JURISPRUDENCE; it is derived from a Latin word ‘jurisprudential’ which means Knowledge of law or Skill In law. But it is not mere knowledge of law, indeed more than that.

P.B. Mukharji writes that new jurisprudence is “both intellectual and idealistic abstraction as well as behavioristic study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to the state and society. Thus, the changes in social, political, and economic outlook and the changes in conditions of individual and national life have widened the province and the scope of Law viz., jurisprudence.

Some legal scientists to separate various jurists into various schools have adopted a method of categorizing their understanding of jurisprudence. This method deals with different approaches of law taken into consideration by various jurists viz:

1. Natural law school
2. Analytical school of law (Imperative school)
3. Historical school of law
4. Realist school of law
5. Sociological school of law
6. Economic school of law

These schools demonstrate the buildout of law at various stages. These schools endeavor optimistic future ahead for researchers and analysts in this field. Let us attempt to understand these schools comprehensibly.

NATURAL LAW SCHOOL

“Natural law was the corollary of an immutable pursuit for absolute justice”. From Cicero, Stoics, Roman legal system to Dark ages to middle ages to the natural law of the classic era; it all by gradual steps tries to accomplish a shift in its mode of approach from a teleological to a casual empirical view of the nature of man.

Divorce of law from theology is the major characteristics in the understanding of natural law school in and around the dark ages.

The middle ages, foster the idea of law as reasonable and rational being. St. Thomas Aquinas was in the major league of the philosophers during this period.

However, the classic law of natural law jurists tended to favor the elaboration of systems of concrete and detailed rules which were believed to be directly deducible from human reasons. In a book,“Philosophy of law” by Kohler postulate the promotion and vitalizing of culture as the end to be served by the instrumentality of law.

BASIC TENETS OF NATURAL LAW SCHOOL:

There are certain principles, upon which, the pillars of this school stand by:

JUSTICE+ REASON+ HUMAN NATURE+ ETHICS	SUPREME AUTHORITY= BINDING ON EVERYONE
EQUALITY FOR ALL MEN	OPPOSED TO WRITTEN LAW

Natural law is a part of eternal law which human reason identifies and applies to. In a particular social situation, making it a man-made or positive law.

ANALYTICAL SCHOOL OF LAW

In the middle of the nineteenth century a strong counter movement against the metaphysical tendencies of the preceding centuries set in. This movement is described as positivism.

MAJOR FEATURES:

• Positivism seeks to intern itself to the data of experience.
• It repudiates all imperative and conjectural assertions in philosophy.
• The articulation about realities are considered valid only if is on the basis of tested and verified sensory experience.

The chief exponents of Analytical school of Jurisprudence were 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’. Also known as the imperative school because of its treatment of law as a command of sovereign. Bentham introduced legal positivism. He treated legal theory as a science of investigation which should be approached through scientific method of experimenting and reasoning.

Some jurists have had profound impact on legal positivism. They are:

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. Austin reduced all things from the definition of law.

Kelson is most famous for his studies on law and especially for his idea which we call the pure theory of the law. His theory of law is considerably the most complex one. He declares that law must be studied as a pure science independent of other incidents. Like morality and justice, which makes him part of the positive school of jurisprudence.

Hart develops and rebuilds his own positivist theory of legal validity. Arguing that what is missing from Austin’s analysis is the concept of an accepted rule. Hart unfolds his own analysis which aims at a more sophisticated understanding of the social practice of following a rule. He distinguishes first between social rules which constitute mere regularity from social habits.

LEGAL POSITIVISM

Legal positivism based on the works of writers such as Hume, Bentham, Austin, Hart, and Kelsen. All of them insist on the analytical separation of law from morality. In no case, however, does this imply that morality is unimportant. But it does entail the claim that clear thinking about the nature of law necessitates treating it as a distinct phenomenon capable of being analyzed without invoking moral judgment. Hence, as Austin explains in a famous passage: ‘the existence of law is one thing; its merit or demerit is another.’ A law, which actually exists is a law, though we happen to dislike it. It is this kind of law that a positivist takes as a law and applies for study.

HISTORICAL SCHOOL OF LAW

Fredrich Karl Von Savigny is universally considered as the founder and father of historical school of law.

“Law is found, it cannot be made” is the basic tenet upon which the entire school depends on. The most important source of law is custom.

Savigny talked about the historical development of law by categorizing it into various stages:

1. Law originates in custom which expresses national uniqueness. The principles of law derive from the beliefs of the people.
2. At the next stage, juristic skills are added, including codification which does no more than articulate the Volkgeist but adds technical and detailed expression to it.
3. Decay and sets in.

Thus, historical jurisprudence endeavor to disentangle the principles and processes operating behind the origin and development of law and legal institutions.

REALISTIC SCHOOL OF LAW

Legal realism had its origins in the twentieth century. ‘Realism’ refers to portraying a picture exactly as what the painter saw without idealizing. Choosing his subject from what was the ugly and commonplace of everyday life, in the context of the art of painting.

Legal realism attempts to describe the law without idealizing it, to portray the law as it is. Not how it should be or how it was depicted in traditional theories that ignored the law’s actual day-to-day operation – and to reform it.

The two kinds of views were omnipresent, as; American legal realists were concerned with portraying actual practice: the centrality of the court. And the unimportance of rules in statute books for predicting what courts do. They sought to make law an empirical science. While, Scandinavian legal realists wanted to expose and eliminate the hidden basis of the law. The metaphysical assumptions of orthodox legal thought – and to base law on sociological and psychological facts.

However, the difference lies in the fact that the Scandinavian realists found the legal system as a whole more interesting; rather than the narrow area of interest of the courts adopted by the Americans.

The realist legal movement which originated and dominated in the United States focuses on the role of the court as opposed to the positivist school which emphasizes the sovereign. The role of the judge differs from jurist to jurist as discussed above. But generally, all realists opposed any formalism approach to law. For realists the law is unpredicted and highly biased by the thinking of the judge.

SOCIOLOGICAL SCHOOL OF LAW

The Sociological approach to the study of law is the most important characteristic of our age. Jurists belonging to this school of thought are concerned more with the working of law rather than its abstract content. Their principal premises are that the law must be studied in action and not in textbooks. They work upon jurisprudence with reference to the adjustment of relations and ordering of human conduct which involves group life. Also, they are concerned with the study of law in relation to society. They concentrate on actual social circumstances which gives rise to legal institutions.

Among the foremost writers who made an attempt to apply scientific methods to social phenomenon was Auguste Comte (1798 – 1851). He is the founder of sociology as a science.

Pound was the principal advocate of the sociological based study of the law in the United States. His concern was to examine law in action as opposed to the topic of law in books. In a series of law review articles published between 1905 and 1923, Roscoe Pound of the Harvard Law School discusses different issues pertaining to the sociological concept of law.

ECONOMIC SCHOOL OF LAW

This school put forward something not hackneyed, as well as not postulated yet. This Marxian concept of law majorly opposed all other schools of jurisprudence. The classification of society into various classes is hitherto considered as:

• The capitalists
• The Wage laborers
• The Land owners

This school talks about the evolution of proletariat revolution, stages of communism, higher communism, etc.

“From each according to his ability to each according to his needs”. The sole mantra to economic approach of law asserts importance upon the state and the statecraft which is an integral part of proletarian society.

Through the understanding of these schools, we wind- up that the law not just only reflects and supports existing social institutions but also aims at securing a just and near perfect social order. Law pervades and permeates into every aspect of human existence. The law of every modern state shows at a thousand points its influence on our lives.