Schools of Jurisprudence
To understand the various schools of jurisprudence, let us first begin to understand the meaning and application of the term and concept of jurisprudence. Jurisprudence can be defined as, ”the theoretical study of law.” Jurisprudence was developed to understand law in a deeper and advanced methodology. Scholars of jurisprudence also seek to explain the nature and scope of law. Jurisprudence was derived from the Latin word juris prudential, which means the study of the science of law. The method by which the court takes forward the criminal trials and administers justice is an example of jurisprudence. Jurisprudence finds its significance even today, as it helps and guides judges and lawyers to understand the roots of law and to properly administer justice. It is also required as a guide to interpret law in an appropriate manner. Jurisprudence is also termed as the eyes of law, this is because any person who has committed a crime must be punished by law, and this is mainly brought about through jurisprudence. Talking about the historical aspect of jurisprudence, this field of study found its relevance mainly during the 18th
The Five Schools of jurisprudence:
Jurisprudence can be mainly studied through five schools which include-
The philosophical school of jurisprudence mainly concerns itself with the reason behind the establishment of certain laws. It covers the vast variety of laws and what they are intending to offer to the society. For example, we can say that criminal law is an eminent branch and type of law, so philosophical school of jurisprudence tells us why criminal law exists in the society and what it is intending to achieve, i.e., to punish for dangerous crimes which are usually not reversible or compensated. Now let us look at the eminent scholars who supported and worked for this school. The names of the scholars are: Grotius, Immanuel Kant, and Hegel. They believe that law is the reason and foundation behind human identity.
Historical school believes that,” law is result of the development of the customs of the past.” The historical school say that law developed from the customs that were prevalent in the society. These customs exist in the society to represent and depict the national conscience as principles of justice and public utility. They also believe that law was not given by a particular authority but was founded by the people and their common spirit. Some eminent jurists of this school are Savigny, Sir Henry Maine, and Edmund Burke. Savigny is the main founder of this school and has given the theory of Volksgeist. The theory of Volksgeist states that “law is developed from the free will of the people and that is how it lives on for so many years.” It also states that law develops with the increment and progress of a country and it deters with the determent of a country. Savigny also states that beginning of law lies in the well-known soul of general population. He went on to call this Volksgeist.
The Realist School was developed in America and exists in American jurisprudence. Realist School states that law must always be in alignment with a country’s financial matters and statement. This school believes in the realist aspect of law and states that law is a tool for a social change. They emphasize on the fact that law exists for the needs of the society. The Realist school also is successful is mentioning that law helps in balancing the conflict interests in society. Some eminent scholars who support this school of thought are: Oliver Holmes and Karl Llewellyn. Holmes rightly mentions that, “ Law is the thing that the courts do; it isn’t simply what the courts state.” Holmes mentions that life of law was based not on rationale but in, involvement. Llewellyn mentions , “Realism
The sociology school of jurisprudence was led by eminent legal advisors and sociologists such as Herbert Spencer, August Comte, Roscoe Pound, etc. The sociological school states that law is important for the development of a society. They also view law as a social organisation which has a direct impact on the society. They tend to put more emphasis on the utilitarian part of law as opposed to conceptual substance. Ehrlich was another eminent legal advisor of this school of thought, he clarified and explained the social premise of law. He also popularised the term of “social impulse” and defined it as the collective influence of a certain feeling shared by a group of people i.e., socially. Roscoe Pound laid emphasis on visualizing law from the perceptions of people. This school of thought and their approach says that law exists for the needs of the people.
The analytical school of thought is mainly based on the ideology and the theory put forth by Austin. Hence this school can also be called Austinian school. Austin explained that law has three features: 1) It is a type of a command; 2) It is laid by sovereign, which is generally a political sovereign; 3) It is enforceable by sanction and penalties are usually enforced if it is broken. Austin then defines commands saying, “ commands are the expressions of desire given by superiors to inferiors, usually given by a higher authority to a lower or no authority. This school of thought believes that laws are general commands and must be obeyed at any cost. They also integrally believe in the concept of crime and punishment. Austin also lays emphasis on law and its relation with sovereign. He states that, “ Law is law only because it is made and enforced by the sovereign,” and,” sovereign is sovereign because it makes laws.” This school of thought also included scholars like Jeremy Bentham.
Author: Vaishnavi Makne,
Symbiosis Law School, Nagpur