A Critical Study Of The Schools Of Jurisprudence by - Bharti Janghra & Ranam Khan

A Critical Study Of The Schools Of Jurisprudence

Authored by - Bharti Janghra

 & Ranam Khan

 

INTRODUCTION

Due to cultural differences, there is no universally accepted or unified understanding of the law. It's a wide open field of study. A jurist's discussion of the political climate in his community is indicative of the state of the rule of law in that region at the time of the discussion. It is generally agreed that the Romans were the first people to study the concept of law. Policy, psychology, politics, economics, etc. are all brought together in jurisprudence. Its spread changes all the time. Not derived from any state legislative or enacted law.

 

Understanding the background and the idea of jurisprudence requires tracking down its origins. The Latin term 'jurisprudentia' is the source of our English word 'jurisprudence. The capacity to grasp the meaning of a term is indicative of a dedication to learning the law, knowledge, or skills. Bentham is widely considered to be the progenitor of modern law. Austin's writings expanded upon his pedagogical principles.

 

Throughout time, jurisprudence has taken several forms. The Romans tended to refer to it as the study of man instead of the knowledge of right and wrong. Salmond calls it the "science" of the foundational principles of civil law.

 

Instead, it might be thought of as the philosophy or science behind positive law. There is no one proper understanding of law; rather, there are many competing interpretations, each of which is valid in the author's mind.

 

The origins of the concepts of law and justice may be traced back to antique societies like ancient Rome and India. From its earliest beginnings in the Stone Age to the present day in the 21st century, it has undergone several transformations and expansions.

 

 

Some of the earliest allusions to the notion of law may be found in ancient Indian literature known as the Dharmashastra scriptures. The moral and ethical principles of dharma were widely considered to exist at the time.

 

Then, in classical Rome, they went much further in developing their theories. Similar to what we know of as common law now, it existed in those times. Nevertheless, people were still following an unwritten code of norms and procedures.

 

Several modern legal institutions can trace their origins to the Roman Empire. The legal profession nowadays is more refined and academic.

 

AN APPRAISAL- SCHOOLS OF JURISPRUDENCE

Jurisprudence is the philosophy and examination of legislation. It considers the law's cause and principle. The law has an unforeseeable concept. His interpretation varies from person to person. Everyone has an alternative interpretation of the rules. This piece of research reflects five schools of jurisprudence namely:

 

Philosophical School or Natural Law

The natural school of law refers to the widely held belief that human behaviour is ultimately governed by immutable, universal laws found in nature. Many definitions have been put out throughout history, but ultimately, it may be traced back to a person's own nature, despite being a product of human hands. Faith is its primary driving force. The idea behind this method rests on the idea that human law may be validated against a greater morality-based law. A presumption is made that there are immutable moral laws that can never be broken without causing a breakdown in moral or legal order. If there is no moral basis for it, then it cannot be law. By tying together legal norms and ethical principles, as taught by this school of thought.

 

The focus of the moral or ethical school is on how the law relates to the values it is meant to uphold. The study's overarching goal is to learn why a certain law exists. Nothing of intellectual or historical significance is connected to it.

 

Hugo Grotius:

Dutch philosopher Hugo Grotius (1583-1645) laid the groundwork for international law based on natural law. Grotius rejected the idea that natural law could be used as a basis for morality. He did this by claiming that natural laws are, by definition, independent of religious faith and hence the purview of lawyers and philosophers.

 

Whether or not one subscribes to Christianity, he claimed, all social and rational creatures are bound by the moral principles outlined in natural law. In addition, Grotius argued for the concept of Just War, which he defined as a conflict that is sanctioned under certain circumstances by natural, national, and divine law. His rules for conducting a war were predicated on the principle that actions taken during hostilities should be done so with the right in mind.

 

Hobbes

Thomas Hobbes uncovered the social contractual premise underlying legal positivism. He thought most men should concede that they could differ on what constitutes happiness, but that a substantive agreement might be reconcilable given concerns such as loss of personal autonomy and property. The purpose of natural law is to specify the actions of a self-interested, rational being who is trying to make it through challenging circumstances and prosper.

 

It was possible to find this out by contemplating natural law and human rights. Natural rights had previously been governed by prior understandings. Hobbes preferred to think that the only way natural law could be guaranteed was if everyone obeyed the dictates of a single ruler. The monarch, who was originally tasked with making and implementing regulations to keep tabs on his subjects' behaviour, has evolved into the ultimate arbiter of law and order.

 

John Locke

Locke, in contrast to Hobbes, held a very different view of nature's existence. He provided a novel reading of natural law. As Locke favoured individualism, he concluded that natural law required citizens to have more power than the king. Locke's state of nature was considered a golden period by humans, but as civilization progressed and the concept of land was formed, people became anxious about their property.

 

A guy entered into a social contract in order to safeguard his possessions. He did not give up all of his rights by agreeing to this compromise. All of these luxuries have to go to keep the peace and establish the law of nature. The rights of man to life, liberty, and property were considered to be natural rights that required protection.

Locke believed in human rights and argued that the sovereign's power should be limited. Locke argues that citizens have the right to demonstrate against the sovereign if he fails to protect their interests. The people also have the power to topple the government. Such rights, together with the right to life, liberty, and property, are what he calls "basic natural rights," and he argues that the sovereign must take all of them into consideration before making a choice.

 

Jean Rousseau

According to Rousseau, the'social compact' envisioned by Hobbes and Locke is more of a theoretical construct than an actual part of history. Before the so-called'social compact,' people generally got along. Men were generally impartial. To preserve their autonomy and equality, the people banded together and surrendered their rights not to an individual (the sovereign), but to the collective (what Rousseau termed the "public will").

 

Thus, it is the duty of each individual to submit to the "common will," for in doing so, he is actually submitting to his own will. The State exists to ensure that all people are treated fairly and with respect. If the administration and the laws did not follow "universal will," they would be overthrown. This includes the State itself. Individual liberty was a fundamental concern for Rousseau. His theory of "Natural Law" is strictly confined to the protection of personal liberties and the promotion of social equality. State, statute, sovereignty, universal will, etc. are all synonyms in his mind.

 

Immanuel Kant

Both Kant and Fichte, writing in the 18th century, pushed the idea of a social compact based on the rule of nature. They demonstrated that'reason', rather than historical reality, was the bedrock upon which the social compact was built. Kant contrasted between natural and acquired rights, with the latter being rejected in favour of the former because of its detrimental effects on individual liberty. He believed the state should be responsible for upholding the rule of law, and he advocated for the separation of powers. His prominent Categorical Imperative thesis was championed in his seminal essay, Critique of Pure Rationality.

 

Rousseau's conception of the Universal Will served as the basis for Kant's own Categorical Imperative thesis. It is comprised of two core values: (1) The Categorical Imperative, which states that a man must act in accordance with his own morality as dictated by commandments, and (2) the virtue of self-reliance. So, it is equivalent to the right to decide one's own fate.

 

The second of Kant's ideas was the philosophy of the "autonomy of the will," which does not entail the freedom to act irrationally but does suggest that one's actions are grounded in reason.

 

Hence, according to Kant, "a behaviour is legitimate only if it parallels in accordance with the universal rule with the free will of each and every man." "The Innate Right principle," he called it. His view is that the state's main function is to guarantee adherence to the law.

 

These legal scholars do not attribute law's existence to the will of a monarch or the result of historical necessity. They see the law as the culmination of human endeavour, with the lofty objective of elevating and enhancing the individual.

 

Historical School

Understanding the relationship between the two is central to the Historical School of Jurisprudence. The state is made up of the norms and customs of society as a whole. A society's norms of behaviour shape the wants and requirements of its members.

 

This idea demonstrates that the rule is a result of causes and consequences in the past. The law is predicated on people's common sense. As there was once no one in a position of sovereign power to create laws, common knowledge developed from the ground up.

 

When it comes to historical jurisprudence, Montesquieu is the pioneer. In his best-selling book, "Spirit of Law," he argued that the legal system must adapt to the changing needs of society. It is Savigny who is considered the second jurist of the Historical School. In order to grasp Savigny, we must first examine the events of the year 1800 in Germany. There were 41 separate kingdoms in Germany at the time, each with its own set of rules and customs that affected commerce, markets, and other aspects of daily life.

 

At the time of the French Revolution, a newfound sense of patriotism and national pride emerged among the populace. A thought crossed Anton Thebo's mind: ruling Germany. He made up his mind to make a legislation that would only apply in Germany and exclusively to Germans. He published pamphlets and sought to establish a uniform set of laws for the whole country of Germany, which led to the establishment of courts.

 

 

Savigny criticised and attacked this theory. Savigny was also the name of the Roman law scholar. His theory was the VOLKGEIST movement. This school of thought advanced the idea that laws are the direct result of the collective decisions and activities of society's members. He emphasised the importance of the law on a national level.

 

The Indian people, for instance, have a unique sense of national identity and insist on the importance of belonging to a group that cannot be imposed by any outside power. The needs of the populace would shape the evolution of a country's legal system, which in turn has an inextricable link to cultural norms.

 

Henry Maine was the third jurist to belong to the Historical School. He recalled the legal fiction from his memory. Every advanced culture, he said, predetermines its own set of laws, and this is what sets them apart. To Contract Theory, he gave a status that had before eluded it.

 

In every traditional community, people's rights and responsibilities were mapped out in detail, based on their social status. Poorer and higher caste people used to be subject to different rules and laws. The demarcation of privileges and obligations reflected the person's legal standing. For free society contracts to be possible, the philosophy of the contract must reimagine the process of generating laws.

 

Puchta was the fourth jurist of the Historical School. As he sees it, neither the collective nor the state can effectively establish norms. He thinks that a group consists of many autonomous people with their own minds. When faced with a choice between the general will and their own self-interest, individuals have no idea what to do because the general will is imposed upon them by the state and society. He argues that the state will intervene and control the rule of law only if the general will and wants of the people coincide.

 

Realist School

Several people's sentiments are taken into consideration while making legal decisions. Those who subscribe to this school of thought are known as realists because they treat the rule as if it were a hard and fast law. This approach places a premium on the judicial philosophy behind the rulings in a certain jurisdiction. This academic institution emphasises the viewpoint of legal professionals and the practical application of legal theory. This school of thought recognises the validity of the arguments of both parties and seeks to reach a compromise between them in the name of justice.

In the 1880s, both the United States and Scandinavia experienced the emergence of the Realist School. Several rulings and the cases and perspectives that informed them were made public in the United States in 1890.

 

The two primary architects of American Realism are John Gray and Oliver Wendell Holmes. In addition to Jeremy Frank and Levellyn, this institution has produced two more prominent jurists.

Justice D. Y. Chandrachud of India is a shining illustration of the liberal philosophy that has been the focus of writers like John Gray and Oliver Wendell Holmes. Judge Chandrachud delivered landmark rulings in landmark cases including the right to privacy, adultery, and the now-famous Section 377 or NAAZ foundation case. To implant the ideal of liberalism in our society and to stay impartial to any form of Communalism or Biasedness, it is the responsibility of a sensible and reasonable choice made by a liberal mind-set to offer fair judgements, as they claim.

 

Why do people accept and obey the law? was a worry of Oliver Wendell Holmes's. They acknowledge the law as the standard by which to judge conduct. He first used the term "Poor Guys" to describe the poor. He claims the Bad Guys are concerned with the opinions of the judges and the outcomes of legal proceedings. Neither the other factors nor the decisions of the courts are relevant in any way to them. He argues that the experiences one has to deduce a problem statement and provide a reasonable conclusion are equally as important as the logic and facts that are the foundation of the law. It's also going to take faith in the judges and a willingness to adopt their perspective.

 

In his book "Law and the Modern Mind," Jeremy Frank argues that predicting the outcome of a legal dispute with any degree of certainty is impossible since the law always leaves room for different interpretations and considerations. He thinks a lot about the decisions and actions of judges and lawyers. They consider all the information in light of the law and then make a call. What if, however, the facts and the decision are both wrong? There is simply no guarantee that judges will always make a right conclusion after hearing all the evidence. The law is a positive task in the ownership of attorneys and judges, and they must perform it independently and without pressure in order to accomplish their jobs well.

 

The 1990s were a peak decade of liberalisation, with numerous laws being amended and the legislation serving as a conduit to a positive societal outcome. Laws can be made to accommodate desired societal changes. They need to function in tandem, and at least one practical option must be presented. Realistic school aids not only in the study of law, but also in the grasp of philosophy and points of view.

 

Sociological School

The phrase Sociology was first used by Auguste Comte and he is believed to be the father of the science of sociology by some jurists. “Scientific positivism can be called Comte's method. He proposes that the scientific process be extended to the science of sociology. Society is like an organism and when it is driven by scientific principles, it will advance.”[1]

Herbert Spencer provided empirical support for the organic view of society.

 

He connected this cultural development pattern to sociology. By considering the social implications of species interdependence, we see that all members of civilised society have a reciprocal connection with one another, and that a feeling of duty is diffused that goes much beyond the Sovereign and Subject formula. Prof. Allen has presented an exceptionally elegant summary of the organic theory. It drew focus to the fact that the rule should be analysed in relation to other societal issues.

 

Durkhiem, in turn influenced by Comte, served as an inspiration to Duguit. Durkhiem's distinction between two types of social wants was the primary idea that Duguit was interested in exploring.

To start, there are general requirements that are met via mutual aid. Second, the bartering of services satisfies the need of many individuals.

 

Hence, the division of labour is the most important feature of social concord. For him, it was all about being together as a community. The development of novel, liberated individual behaviours strengthens social cohesion.

 

This kind of social cohesion exists and plays a crucial role in most people's everyday lives. The pioneering sociological jurist Rudolf Von Lhering. The field of sociolegal research may trace its roots back to his work. He believed that social change should be driven by the greatest possible utility. According to him, the establishment of law, like its origins, is not quiet nor incidental, but rather the result of ongoing struggle or conflict.

 

 

Eugen Ehrlich:

The key argument in Ehrlich's study is that, in social facts and not in formal sources of law, the law of a group is to be found. He says that the centre of gravity of legal growth, at present and at any time, lies not in law, nor in jurisprudence, nor in judicial judgments, but in society itself.[2]

 

Roscoe Pound:

Roscoe Pound is widely regarded as the preeminent American scholar in the subject of sociological law. A graduate of Harvard Law School, he has a significant head start in the classroom. In terms of organisation, he is the leading scholar in the field of sociolegal theory. Some legal academics classify Pound's approach as the "practical school" because of his emphasis on applying legal theory in real-world situations.

 

Pound's central argument is that the role of the law is to serve as a tool for social engineering.

He says, I am content with an idea of satisfying as much of the complete body of human desires as we can with the least sacrificing for the sake of learning the law of today. To the extent that social desires can be fulfilled or claims can be effected by ordering human actions through politically organised society, I find it satisfactory to think of law as a social institution to accomplish social desires, claims, and demands involved in the life of civilised society by giving effect to as much as we can with the least sacrifice.

 

For the time being, I am satisfied to view legal history as a chronicle of progress towards a more complete and effective elimination of waste and a smoother path towards the enjoying of life's pleasures by human beings. To sum up, ever-successful social engineering categorises the many interests to be addressed by law into three categories: private interests, public interests, and social interests. The following are the private interests to be covered by legislation:

Personality interests of the individual:

These include his physical integrity, credibility, freedom of volition, and freedom of conscience. They are covered by the Criminal Law, the Law of Tort, Law of Contract and by restraint of the government's ability to intervene in the matter of belief and opinion.

The involvement of individuals in domestic relationships:

These include marriage, husband and wife relationships, parents and kids, and maintenance claims.

Substantive interests:

These include property rights, inheritance and testamentary succession, and freedom of work.

Analytical School

While made evident by Thomas Hobbes, the Analytical School is primarily recognised with Jeremy Bentham and John Austin. It was built systematically by Hans Kelsen John Chipman, Grey Oliver Wendell, Houses etc. in U.S.A. Thephilosophyof this school was against the theories introduced under natural law school.[3]

 

Jeremy Bentham

As regards the concept of law, it observed that a law may be interpreted as an assortment of signs, a declaration of volition, conceived or adopted by the sovereign in a State, relating to the conduct which, in a particular case, must be observed by an individual or class of persons who, in the case at issue, are supported by his authority. He contrasted sharply between the prevailing law as it is and the law that actually should exist. To measure every rule as other measurable stuff, he set up the principles of utility, the hedonistic equation of enjoyment and pain.[4]

 

John Austin

John Austin served on the chief support of Bentham's way of positivism for his English School of jurisprudence. "The province of jurisprudence determined" is his key work. Austin described law as a regulation laid down by an intelligent being having the authority over another an intelligent being in order to issue guidance to him. The definition of law, i.e. law properly so established, which is distinct from morals and other laws that are defined as laws improperly as such, is decided and characterized. His concept of law is positive law which he separates from positive ethics or other sorts of law the latter lacking power, approval and intimidation of the state. Instead on other hand, about positive law he defines as the collection of regulations set by men as political dominant upon men who are political inferior. Austin stated that a law is a code of ethics instituted by the sovereign and also implemented by it.

 

H.L.A Hart

Hart explains the philosophy of law in Austin as a trilogy of order, punishment and sovereignty. His theory was criticised for creating a gunman scenario with his command theory: law is obeyed out of intent, idleness, fear and reason as well. There has been no definition of the word sovereign. The law and morals cannot be fully segregated: the minimal substance of natural law must remain in the implemented law. He is the creator of the theoretical school as far as involvement goes. He was the founder of the modem positivist philosophy to rule. His principle of command just cannot be overlooked.

 

CONCLUSION

The Schools of Jurisprudence provide light on the origins of society, law, and the necessity for law, as well as the gradual evolution of law to meet the changing needs of individuals and groups over time. As we all contribute our own unique styles to our communities, and have done so for millennia, the jurisprudential schools help us understand our purpose in life. Individuals' agreement with the laws being adopted is a factor in the growth of a stable and functional society. Only after understanding human nature and culture can the rule of law be established.

 

A examination of natural law systems reveals one way in which the concept of natural law has evolved throughout time. Almost any ideology, whether absolute or personalised, has been disseminated via it. It has been the impetus for a number of uprisings, and it has had a significant effect on the development of positive legislation. A law review is insufficient if it falls short of meeting the law's aims, as envisioned by natural law theories. So, it is safe to say that the principles of natural law are mirrored in the legal systems of the vast majority of the world's nations.

 

According to Savigny's Volksgeist thesis, a country's legal system is heavily impacted by its citizens' historical culture and habits, and the source of this popular approbation may be found in the creation of legislation.

 

Rights to life, equality before the law, freedom of religion, and so on are all guaranteed under India's constitution. Since the idea of natural justice is based on the principles of natural law, all such rights have their origins in this body of thought. In the long run, natural law scholars may be able to claim that their work has significantly influenced the development of legal theory across the world, including in India.

 

The laws of the Sociological School of Jurisprudence are among the most influential of our time. In addition, the Act represents one of the most significant characteristics of contemporary civilization. Worker protection law is critically important because it has higher ideals than its just theoretical foundation. Simply put, jurists affiliated with this school believe that studying the law in practise is superior to studying it in theory. Thus, it is undeniably simpler to comprehend than reviewing the legislation in books.[5]

 

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[1] Mohd Aqib Aslam, Nature And Schools Of Jurisprudence An Overview.

[2] Ibid.

[3] Shubhi_3014, Schools of Jurisprudence, November 27, 2016

[4] Ibid.

[5] https://www.jetir.org/papers/JETIREW06083.pdf.