Schools of Jurisprudence
Jurisprudence can be called as philosophy of law. Numbers of jurists have explained it in the general form for better understanding of the lawmaking process. As we know that law has unpredictable arena. Its understanding differs from one particular individual to the others. Everybody has their own perception of law. These different perceptions can be clubbed under different schools of Jurisprudence. This article gives a brief outline of mainly five Schools of Jurisprudence.
- Analytical School
- Historical School
- Realist School
- Sociological School
- Philosophical School
John Austin is said to have set up this methodology due to which it is sometimes referred as Austinian School. This school believes law as a direction from the supreme power (Sovereign). According to this School, Law is the Command of the Sovereign and owes its existence to state and is posterior to it. The exponent of this school regards Legislation as the most important source of law. According to them Custom has no place in law.
Austin was the one who propounded the theory of positive law but Bentham was the one who laid down its establishment.
Bentham appears to be the founder of this approach. He was the firm supporter of Lassez faire principle of economy. He wrote a book, “Limits of Jurisprudence defined” which was published in 1945. He was against Judge made law; according to him law should be made only by the legislature. He was an individualist. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. The purpose of law is to bring pleasure and avoid pain. His legal Philosophy is called “Utilitarian individualism”.
Austin is known as father of English Jurisprudence and Analytical School. He wrote a book, “Province of Jurisprudence Determined”. He defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. Law is the command of sovereign backed by Sanction.
According to this School, Law is a matter of unconscious and organic growth. Therefore, law is found and not made. This school says that Law is anterior to state and does not owe its existence to it. They say custom is all important source of law and is superior to legislation. This School discourages creative activities and legal reform..
He is regarded as the originator of Historical School. He has propounded the Volkgeist Theory. Law has its source in the general consciousness (Volkgeist) of the people. He says law develops like a language and has national character. Law is a product of the people’s life- it is a manifestation of its spirit.
The other eminent supporters of this School are Sir Henry Maine and Edmund Burke.
Roscoe Pound has defined ‘realism’ as “Fidelity to nature, accurate reordering of the things as they are, as contrasted to things as they are imagined to be, or wished to be or as one feels they ought to be.” Basically, the evolution of Realist school lies in the English Jurisprudence. It is regarded as a branch of Sociological approach. Gray and O.W. Holmes were the two great jurists from whom the origin of this realist approach has been traced. Gray defined law as “What Judges Declare”. Coming on to the Llewellyn, he said that Realist School is not a separate school of Jurisprudence instead it should be called as Sociological Jurisprudence.
Coming on to the factors responsible for this approach are numerous. The most important one is the pragmatic philosophy. They started dealing law with an practical approach rather than constraining them with the principles. The second most important factor which seems to have led this thought is the organization of judiciary in America.
Eminent Supports of this School are, Holmes, Gray, Jerome Frank, Llewellyn, and many more.
This School takes law as an instrument of Social progress and treats law as a social wonder. This school studies effect of law and society on each other. According to this school law is the product of general will of the society. The reasons which brought about this kind of approach are many. The historical school, the philosophical movement and the comparative study of legal systems all in different ways contributed in the emergence of this method.
Some of the eminent supporters of this view have been discussed below:
He was the first individual who used the term “Sociology”. His method maybe called as “Scientific Positivism”. Coming on to the field of legal theory it was Comte whose ideas inspired Durkheim, and who in his turn, inspired Duguit, a great sociological jurists.
The core point of his thesis was that the law of community is to be found in social facts and not in the formal sources of law. According to him ‘Living Law’ is the fact that governs social life. His use of term ‘Sociological Jurisprudence’ means that the law in a society should be made and administered with the utmost regard to its requirements.
He is regarded as an ‘American leader’ in the field of Sociological Jurisprudence. He concentrates more on function aspects of law due to which some writers named his approach a ‘functional school’. His main thesis is that the task of law is ‘Social Engineering’. Here ‘Social Engineering’ means a balance between the competing interests in the society.
This school is also known as Moral School. The basic aim of this school is that it tries to extract the reasons why which particular law has been established. Immanuel Kant, Hegel and Grotius are some of the eminent law specialists in this School. They basically think that law is the product of human reason and its ultimate aim is to raise and praise human identity. Hegel seems to be the most persuasive scholar of the philosophical school. According to him “The state and law both are developmental”. Coming on to Maine, he made a comparative study of legal institution of various communities and laid down a theory of evolution of law.
As discussed above Jurisprudence is a systematic study of law. It basically investigates various theories and methods of insight in respect to the law.
There are five different schools of jurisprudence, each have their own philosophy and importance in the field of law. Each have been criticized by many eminent scholars. Practical approach should be taken into consideration while studying law rather than going for a theoretical one.
Author: Dheeraj Diwakar,
Dr. Ram Manohar Lohia National Law University, Lucknow 1st year