What is law?

Law may be defined as a large body of rules and regulations based mainly on general principles of justice, fair play and
convenience, which have been worked out and promulgated by governmental bodies to regulate human activities and
define what is, and what is not permissible conduct in various situations. It is a pattern of conduct to which actions do,
or ought to conform.

General meaning

 Law is a set of rules created by state institutions which make laws through the authority of the state. The laws
have sanctions which are recognised by the state and enforced by state-authorised bodies.
 In its judicial sense, 'Law' means a body of rules of conduct, action or behavior of persons, made and enforced
by the state.
 It expresses a rule of human action.
 It is something that touches our lives on a daily basis, it governs what we can and cannot do, it is used to settle
disputes, to punish and to govern the relationships between the parties.
 Laws play a central role in social, political and economic life.

Schools of jurisprudence
Jurisprudence is the study or philosophy of law. It considers the cause and idea of law. Law has an unpredictable idea.
Its comprehension differs from individuals to individuals. Everybody has an alternate perception of the law.

The following are the five schools of jurisprudence:

1. Analytical school :
The major premise of analytical School of jurisprudence is to deal with law as it exists in the present form.
Analytical school is known in various names such as:

o The Austinian school since this methodology is set up by John Austin.

o The imperative school since it regards law as the direction (command) of the sovereign.
o The Positivist School because the exponents of this school are concerned neither with the past nor
with the future of law but with law as it exists i.e., with law `as it is` (positum), the word positivism
was given by august comete.
o Jurists of the school such as Austin, Hart, and others did not rely on the concept of ‘law ought to be’ instead
considered the concept of ‘law as it is’ existing.
o They also considered that law contains no relation with moral principles.

1. Concerned with strictly so called i.e. what law is, not what it ought to be?

2. Law is not based upon idea of good or bad, it is based upon power of superior

3. There is no moral law.

4. Law and justice differs

5. This school is reaction against natural law theories, which are based upon rationalization or nature confined law or God and gave
importance to ethical and moral issues

o
Truth be told, it was Austin who propounded the theory of positive law, the establishment of which
was laid by Bentham
 One of the fuctions of analytical school is, as the name suggest, analysis or decomposition of law into
irreducible elements.

John Austin
Austin is known as the father of English Jurisprudence. According to him,
'Law is a command of sovereign backed by a sanction.'
o He regards law as the direction of the politically powerful authority backed by a sanction. This means
that Law is whatever the Law-Maker (the one with the authority to make laws) says and it
supersedes judgements by judges/precedents etc.

He distinguishes law from morality. He divides law into two parts:

 Divine law: Law set by God for men

 Human Law: Laws made by men for men.

Austin accepts 3 kinds of laws:

 Declaratory or Explanatory Laws: They are not command but are already in
existence and are passed only to explain the law which is already in force.
 Law of Repeal Austin does not treat such laws as commands because they are in
fact the revocation of a command.
 Law of Imperfect Obligation They are not treated as command because there is No
sanction attached to them.

Austin (1790 – 1859)

· John Austin is the founder of the Analytical school and father of the English Jurisprudence.

· The fundamentals of his theory are: Command, Sovereign and Sanction.

1. Command: Commands are the rules or expressions of imposed by a superior authority (by force or compulsion) on the Inferiors.
The former is the sovereign which authorize the rules of conduct of the latter, the general public.

· The commands may be

a. General Command - issued for the guidance of a whole community, or

b. Particular command - issued for the guidance of a particular community/ Individual.

· Austin emphasizes that only General Commands form laws and they must be lawful and continuous.

2. Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A sovereign may be any individual or body of
individuals, whom

the politically influenced mass of people habitually follows. However, he himself does not obey an individually or body of
individuals.

3. Sanction: To ensure and administer justice the state, applies physical force as sanction. Therefore, it is the sole crux of Positive
Law. It instills fear of punishment in case one disobeys the laws. Sanction is related to duty shaped by the command of a sovereign
authority and sanction becomes absolute necessity for enforcement of law.

· Austin theory of Imperative Law: Austin separated law as improperly so-called and law properly so-called.
 · He recognized that law can be set by both God (divine law) or by men to men, where law set by God is regarded as ambiguous and
misleading according to him and on the other hand laws set by men to men it can be:

a) Laws set by political superiors to their inferiors – law properly so-called.

b) Laws set by men who are not political superiors – positive morality.

· Other jurists of this school are:

1) Holland (1835-1928): follower of Austin.

2) Salmond ((1862 – 1924): he was a legal positivist and belongs to an analytical school. He says jurisprudence is a science as same in
the eyes of Austin and Holland.

3) Hans Kelsen (1881 – 1973): contributed the pure theory of law to the analytical school of jurisprudence. According to Kelsen,
Jurisprudence is “the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm ‘Grund Norm’.
For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from the
Grundnorm which is Constitution. If in IPC any such law made which is against the Grundnorm then they will become invalid.

Jeremy Bentham (1748-1832)

· Bentham is considered to be the founder of ‘positivism’ in the modern sense of the term.

· He preferred to divide jurisprudence into ‘expository’ [it is concerned with law, it is without any regard to its moral or immoral
character] and

‘censorial’ jurisprudence [is concerned with ‘science of legislation’ that is what the law ought to be].

· Bentham in his book ‘limits of jurisprudence defined’ said that its duty of state to provide maximum happiness and maximum
liberty. In other words he means to test every laws and keep a check whether they are providing maximum happiness and liberty,
leading to principle of utility i.e. ‘Greatest Happiness of the Greatest Number of People’.

· The legal philosophy of Bentham is called “Individualism” because he was an individualist and propounded that the law is to be
made for the emancipation of the individuals and restraining on their freedom.

· He believed that, we must remove the hurdles between human beings and freedom. Because when every individual will enjoy his
freedom, he himself will start about his own welfare. In other words he meant ‘let the men free’ leading to minimum interference of
the state in economic activities of individuals. [Laissez Faire]

law as:
Bentham supported the economic principle of 'laissez faire' which meant interference of the State in the economic
activities of individuals.

· Bentham propounded the principle of utilitarianism. According to this theory, the right aim of legislation is the carrying
out of the principle utility. Bentham defined utility as the property or tendency of a thing to prevent some evil or
procure some good. According to him, the consequences of good and evil are respectively 'pleasure and pain'.

Merits

 His constructive thinking and zeal for legal reform heralded a new era of legal reforms in
England
 He gave new directions for law making and legal research.
  In the field of jurisprudence, his definition of law and analysis of legal terms inspired many
jurists
 who improved upon it and laid down the foundations of new schools.
 He gave solutions to problems involving the nature of positive law

Demerits

 According to Friedmann, it suffers from two weaknesses:

At first, in an effort to blend materialism with idealism; Bentham underestimates the need for
individual discretion and flexibility in the application of law overestimating the power of
legislator. Secondly, this theory fails to balance individual interests with the interests of the
community
 The theory is too abstract.
 It fails to recognize complexities of human nature.
 No practical application possible for his theory.
 Pain and pleasure alone cannot be tested to judge the law.

2. Sociological school

o The Sociological school of Jurisprudence advocates that the Law and society are related to each other
o Law is social scenery. This school argues that the law is a social phenomenon because it has a major
impact on society. This school laid more emphasis on the legal perspective of every problem and every
change that take place in society.
o Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School
of Jurisprudence focuses on balancing the welfare of state and individual was realized.
o According to this school the socio-economic problem of the present time cannot be solved by means of
the existing laws.
o This school is based on logic, not metaphysical entities or divinities.

Rosco pound
Roscoe Pound concentrates more on functional aspect of law. So, his approach may also be known as
functional approach. According to him 'The end of law should be to satisfy a maximum of wants with a
minimum of friction.' He demands for maximum happiness with less disagreement.

He has given a theory of 'Social engineering' which means a balance between the competing interests in
society. Social means group of individuals forming a society. Engineering means applied science carried out by
engineers to produce finished products, based on continuous experimentation and experience to get the
finished product by means of an instrument or device. He thinks that jurist should work with a plan and
accordingly various interests of society should be protected by law.

The interest has been classified into three categories:

o Private Interests which are as follows:

o Interests of personality Physical integrity, reputation, freedom of violation and freedom of conscience.
For example: law of Torts, law of Contracts, Criminal law.
 o Interest of domestic relations Marriage, parents and children, maintenance.
o Interest of substance Inheritance, occupational freedom, property.
o Public Interests are:
o Interest in the preservation of State, Administration of trusts, charitable endowments, territorial
waters, natural environment etc.
o Social Interests
o Social interests are the claim or demands or desires thought of in terms of social life and generalized
as claims of social groups.

Demerits:

o Classification of interest is not useful. Since the social interests always change withthe society and to
put them into specific order then they will lose their character and importance.
o This word social engineering is used to indicate the problem that law faces, the objectives that have to
be fulfill and the method which it will adopt for the purpose of interest.
o No ideal scale of values with reference to interest.
o By the word' engineering' no balance has been made between social needs and interests. Only this
theory simply recognizes or approves it.
o The theory ignores the fact that law evolves and develops in the society according to social needs and
wants.
o The dynamic feature of law is undermined in this theory
o The conflict between social and individual interests is not considered by him.
o Prof. Allen criticized him for focusing on wants and desires to fulfill material welfare which might be
harmful to personal freedom.

Merits

o Has focused on practical implication of law and role of jurists in building a welfare state.
o Considers working of law rather than its abstract concept.
o Regard law as a social institution which may be improved by human effort and to discover and effect
such improvement.
o Lay stress upon the social ends of law rather than sanctions.
o This theory says that legal precepts be used as guides to socially desirable results.
o His idea of functional law led to the creation of functional school
o His theories gave the most influential exposition of the American sociological viewpoint.

Dugit
The theory of Duguit under sociological school is a social solidarity. Social solidarity means the greatness of
society. Duguit said that there are mainly two types of needs of the society:

29. Common Needs

Which are fulfilled by mutual assistance.
 30. Adverse Needs.
Which are fulfilled by the exchange of services. No one can live without the help of other. Even a state
cannot exist without the help of other state. One cannot produce So he has to depend upon all things
required for him. others. The dependency is called social solidarity. For this purpose the division of
labor is necessary. Division of labor will fulfill all requirements for the society. This philosophy or views
is called social solidarity.

Merit

o He said to procure and to manufacture necessities of life men depends upon society. His theory
advocates peace and solidarity
o He attacks the myth of State sovereignty and compares the State to any other organization.
o He also mentions the functions to behave in the society are also dependable upon each other. The aim
is to safeguard interdependence or to fulfil all necessities and till this end is not achieved aim of the
law is not fulfilled
o The end or the result of all human activities and organization is to ensure interdependence of men
which is social solidarity or theory of social fact which means men should live together as formation of
law is very essential for community life.
o He minimizes the functions of the State which leads to a reduction in the role of the legislator in his
understanding.

Demerits

o Duguit was against State sovereignty. He thinks it is the will of the people that who will govern them. So
state is also under a duty to ensure 'social solidarity
o There was no difference between public law and private law because it will elevate power of State
above the rest of the society.
o Social solidarity is vague because judges will decide whether an 'Act' or 'Rule' is furthering social
solidarity which is very dangerous for the judicial system as judges have their known limitation. it may
lead to judicial despotism
o His law confuses with natural law theories because if law does not further 'social solidarity' then it is no
law at all.
o Though Duguit emphasis of interdependence in society but his theory does not perform well due to
minimum interference of state because in modern times social problems of modern community can be
solved better by state activity
o His theory may be subject to different interpretations and in the end, would serve the interests and
purposes of lawmakers.
o His use 'is' instead of 'ought' confuses the definition of law with natural law theories.
o His theories were inconsistent where one side he was claiming that biological evolution has structured
the state whereas on the other side he was contradicting it by saying that
State has no personality of its own.

Historical school of thought

Historical school of Jurisprudence argued that the law is the exaggerative form of social custom, economic needs, conventions
religious principles, and relations of the people with society.

1. The historical school follows the concept of man-made laws.

‘Law is formulated for the people and by the people’ means that the law should be according to the changing needs of the people.
And everyone understand their own need better than anyone else.

· The followers of this school argued that law is found not made. The historical school doesn’t believe and support the idea of the
natural school of law which believe that the origin of law is from superior authority and have some divine relevance.

· The S.C of India, in Byram Pestonji Gariwala v. Union of India [1991 AIR 2234], agreed with this viewpoint, quoting Justice
Thommen: “The Indian legal system is a historical product. It is embedded in our land , nurtured and nourished by our culture,
languages, and customs, cultivated and sharpened by our genius and pursuit of social justice, and reinforced by history and culture.”

o The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861
o Historical School of Jurisprudence describes the origin of law. This school argues that the law was
found not made.
o The Historical School believe that law is made from people according to their changing needs. It
believes that law is an outcome of development of the society because it originates from the
conventions, customs, religious principle, economic needs of the people. Basic source of historical
school is custom.
o A custom is a traditional and widely accepted way of behaving or doing something that is specific to a
particular society, place, or time. Customs are considered superior to
legislations in this school. The reasons for the emergence of this school are:

 It came as a reaction to the natural school of law.

 It opposes the ideology of the analytical school of jurisprudence.

Friedrich Carl Van Savigny (1779-1861)

A product of times the germ of which like the germ of State, exists like men as being made for society and
which develops from this germ various forms, according to the environing the influences which play upon it.

Main points of savingny's theory are:

o That law is a matter of unconscious and organic growth. Therefore, law is found and made. Law is not
universal in its nature. Like language, it varies with people and age.
o Custom not only precedes legislation but it is superior to it. Law should always conform to the popular
consciousness.
o As laws grow into complexity, the common consciousness is represented by lawyers who
o formulate legal principles But the lawyers remain only the mouthpiece of popular consciousness and
their work is to shape the law accordingly. Legislation is the last stage of law-making and, therefore
the lawyers or the jurists are more important than the legislators.

· Savigny is regarded as a father of the Historical school.

· The Law has source within the general consciousness of the people. He said that Law develops like language and Law features a
national character. Law, language, customs and government haven’t any separate existence.
There’s one force and power in people and it underlies all the institutions. The law, language, develops with the lifetime of people.

· Savigny’s theory is often summarized as follows:

I. Law is found and not made.

II. According to him, law is Volkesgeist.

v Volkesgeist = Volkes + Geist

(People Consciousness) = (People )+ (Consciousness)

· Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the product of general consciousness of the
people or will.

· The concept of Volksgeist was served as a warning against the hasty legislation and introduces the revolutionary abstract ideas on
the legal system. Unless they support the general will of the people.

o This theory is that law is influenced by the culture and character of the people
o Savigny's theory traced the course of the evolution of law in various societies.
o Savigny's theory lays the seeds for the development of sociological and evolutionary

Demerits

o Inconsistency- One side savigny asserted that the origin of law is in the popular consciousness and on
the other hand argued that some of the principles of Roman law were of universal application.
o Savigny emphasised the national character of law. While advocating national character of law he
entirely rejected the study of German law and took inspiration from Roman law.
o Volksgeist is not the exclusive source of law- Savigny said that popular consciousness is main sources
of law it is not true. Because some time an alien legal system is successfully transplanted in another
country and sometimes a single personality greatly influences a legal system that is not a popular
consciousness.
o Customs not always based on popular consciousness Many customs and practices have been declared
illegal. Charles Allens criticized him for emphasizing the idea of law made by customs as he was of the
view that customs are not based on the consciousness of people but for the powerful ruling class.
o Juristic Pessimism- According to Savigny legislation must accord with popular consciousness but in
modern time it is wrong because today's legislation has much power to make law.
o Many things unexplained- He does not explained many things which developed by certain powerful
communities that is in India slavery untouchables etc.
o He ignored the judge made law- Judges has played an important and creative role in the function of
making law but Savigny's theory has taken this role very lightly.

Sir Henry Maine (1822-1888)

· Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school were carried
forward in England by Sir Henry Maine.

· Maine studied the Indian legal system deeply as he was law member in the Council of the Governor–General of India b/w 1861 to
1869.
· Maine favored legislation and codification of law, unlike Savigny.

· Maine describes the development of law in four stages:

I. Therris stage

Rulers are believed to be acting under divine inspiration. And the laws are made on the commands of the rulers. For example,
Themistes of ancient Greek. The judgment of the king was considered to be the judgment of god or some divine body. King was
merely an executor of judgments of God, not the law-maker.

II. Custom

· Then the commands of King converted into customary law. The custom prevails in the ruler or majority class. Customs seems to
have succeeded to the right and authorities of the king.

III. Aristocracy stage

· The knowledge & administration of customs goes into the hands of a minority, Due to the weakening of the lawmaking power of the
original law-makers like Priests the knowledge of customs goes into the hands of a minority class or ordinary class. And the ruler is
superseded by a minority who obtain control over the law.

IV. Codification stage

· The law is codified and promulgated.

· Maine stated there are two types of societies:

A. Static [Societies which does not progress and develop their legal structure after the fourth stage of development of law] and

B. Progressive Society [Societies which go on progressing after the fourth stage of development of law]

· Other jurist under this school: Georg Friedrich Puchta (1798-1846)- a German jurist, was Savigny’s most popular student.

George Friedrich Puchta

Puchta was a great jurist as well as student of Savigny his ideas are more logical and improved. He uses the
word 'right' in the place of 'law'. According to him men always livedin unity but people are different by their
behavior and unequal. This brings out the idea of law. Then state comes into existence. But neither the people
nor the state alone is the source of law. All laws come to existence by Volksgeist. Popular consciousness ties the
people in one community like common language and religion. According to him customary law is the best
expression of national spirit or Volksgeist so custom so custom is superior to legislation.

Merits

o His ideas were more logical and improved than Savigny

o He divided general will from individual will from which conflicts arise.
o His division and description of conflicts between the general will and individual will made the state,
intervention theory logical
o He gave two-fold aspects of human will and the origin of a state which was absent in Savigny's theory
making it rigid.
 Demerits

o Ignored the historical aspects of legal development.

o His ideas were not accepted initially due to ambiguity which was later corrected by him.

3. Philosophical school
According to the philosophical school, also known ethical or natural school, legal philosophy must be based on
ethical values so as to motivate people for an upright living. According to this school the purpose of law is
maintain social harmony and to maintain to law and order in society and legal restrictions can be justified only
if they promote the freedom of individuals in the society.

The philosophical or moral school concerns itself mainly with the connection of law to specific thoughts which
law is intended to accomplish. It tries to explore the reasons for which a particular law has been established.

This school believes in the law of logic and reason.

Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the law is the result of
human reason and its motivation is to hoist and praise human identity

Grotius

o Founder of international law

o Grotius, Founder of international law, said that a system of natural law may be derived from the social
nature of man.
o He defined Natural law as

The dictate of right reason which points out that an act, according as it is or is not in conformity with rational
nature, has in it a quality of moral baseness or moral necessity.

In this way, he built up a system of natural law that should command universal respect by its own inherent
moral worth. His definition also states that logical application is backed by moral values.

Merits

o emphasized morals to describe righteous conduct in society

o Built a system of natural law that should command universal respect by its inherent moral worth.
o Emphasizes on reasons and origin of law on basis of morals.
o This system of law has been derived from the social nature of man.
o Agreement of mankind concerning certain rules of conduct is an indication that those rules originated
in the right reason.

Demerits
 o

· His theory was based on morality but there is a difference between ethics and morality.
· Ethics are the behavioral pattern of the person whereas morality are the values imbibed in
him.
· Beside morality there are other factors social, economical and political patterns of the
society which are very important for the formation of law.
· Legislation, customs, precedents etc. are also the other sources which are very important in the formation of
law.
· Hugo said that Natural law deserves universal command which is not possible in modern
times because now laws are formed by taking state, people and nature into consideration
and then to make laws according to the need of the society.
· This definition is dependent on logic/reason, something which varies from person to
person, hence there wouldn't be uniformity of law.
· Same goes for moral baseness and necessity as something which may feel morally correct to one may not to
the other and vice versa.

4. Realist school

o Realist School is a type of school which focuses on decisions. It is a branch of sociological approach
o In actual sense, there is no realistic school. It is known as 'realism' that is actually a movement which
consists of thought and works in law.
o It also focuses largely on the evaluations of any parts of law in respect to its effect
o It also creates a sense of distrust in the traditional legal values and also the concepts designed so far as
they appear to be described what either courts or common people are actually doing.
o Realists have a pragmatic approach towards understanding jurisprudence and thus it emphasizes the
judicial organization more which is responsible for the application of the law.
o The realist school of law believes that law is real and co-relates law with reality.
o There are two types of realist school:

 American Realist: the scholars along with learning from there own experiences, but also
observed the judgements and learned from them.
 Scandinavian Realists: in this, the scholars believed only in their own experience.

John Chipman Grey:

According to Grey,
The Law of the State or of any organized body of men is composed of the rules which the courts, that is the
judicial organ of the body lays down for the determination of legal rights and duties.

John is considered as the father of American Realism.

He, according to him, states that codified laws are immaterial unless they are applied by a judge. He says that
law is basically the judgement that the court passes. He implies that body of written rules are lifeless orders
and they are infused with life when the judge applies it.

Merit

o His theory is relatable to real life

o Gives a chance for own interpretation by people.
 o Focuses on 'what law is' and not 'what law ought to be'.
o Observes similar cases in the past as well.

Demerits

o Does not take into account the statute law

o Puts excessive faith on judges.
o Does not consider that the jugdement may include judges personal bias
o This definition is not concerned with the nature of law, rather than its purpose and ends.

Jerome frank
He is considered one of the most important philosophers of the realist school. He explained by giving an
example of the relationship between the certainties of law in men by describing it in terms of a father-son
relationship. Like a son gets protection from his father similarly a man gets protection from the law.

Merits

o He states that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name
of precedents or codification.
o He points out constructive work that every lawyer and judge needs to do.
o He gave an emphasize on importance of lawmaking by evaluating facts of each case under changed
social circumstances.
o His view was to maintain balance and to develop law parallel to advancement in society.

Demerits

o His approach was not considered useful in terms of the law.

o Some critics criticized him on using the Freudian approach of psychological development of a child in
his theory, calling it the Freudian approach of jurisprudence.
o He exaggerated the human factor in judicial decisions and focused on the roles lawyers and judges
only.
o The realist approach was based on the American system of the judiciary and thus is not universally
applicable.

Immanuel Kant
Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the personal
wishes of another man in accordance with a general law of freedom.

Kant's legal philosophy is a theory of what the law ought to be. he distinguished between legal duties and legal rights.
He also distinguished between natural rights and acquired rights. He recognized one natural right of the freedom of
man in so far as it can coexist with everyone else's freedom under a general law. According to Kant, the function of the
State is essentially that of protector and guardian of law. The aim of Kant was a universal world state.
He differentiated between ethics and laws according to him ethics relates to man spontaneous acts whereas laws deal
with those acts which the man is compelled to do by the state and society. Ethics deals with inner life or insight or
consciousness of the people whereas laws regulate external conduct of the person. He said that legislation could be
effective only when it represent united will of the people. According to him justice is relative concept depending on
conditions, place, social values etc. in which an action takes place. He said that laws must be metaphysical derived from
reason in order to be just.

Merit

 He recognized one natural right of freedom of a man in co-existence with other's freedom in general law
 His aim was universal law state.
 According to him the function of the state is to safeguard law and be the guardian of the law.
 He states that ethics are the internal consciousness of a person whereas law is the external conduct of a man.
 Emphasized the united will of people to validate legislation.

Demerits:

 Since his theory entirely based on 'what law ought to be' he forgot to consider the past and present of the law.
 He denied the concept of natural law which is very important for the existence of laws.
 He theory has given theoretical differences between ethics and laws but there is no practical application of
them.
 He has also not given importance to other sources like customs which are considered to be oldest source of
law.

Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation, application, and
requirement of laws. Jurisprudence is the investigation of theories and methods of insight in regards to the law. It has
viable and instructive esteem.

What is law?
Law may be defined as a large body of rules and regulations based mainly on general principles of justice, fair play and
convenience, which have been worked out and promulgated by governmental bodies to regulate human activities and
define what is, and what is not permissible conduct in various situations. It is a pattern of conduct to which actions do,
or ought to conform.

General meaning

 Law is a set of rules created by state institutions which make laws through the authority of the state. The laws
have sanctions which are recognised by the state and enforced by state-authorised bodies.
 In its judicial sense, 'Law' means a body of rules of conduct, action or behavior of persons, made and enforced
by the state.
 It expresses a rule of human action.
 It is something that touches our lives on a daily basis, it governs what we can and cannot do, it is used to settle
disputes, to punish and to govern the relationships between the parties.
 Laws play a central role in social, political and economic life.

Schools of jurisprudence
Jurisprudence is the study or philosophy of law. It considers the cause and idea of law. Law has an unpredictable idea.
Its comprehension differs from individuals to individuals. Everybody has an alternate perception of the law.

The following are the five schools of jurisprudence:

1. Analytical school
The major premise of analytical School of jurisprudence is to deal with law as it exists in the present form.
Analytical school is known in various names such as:

o The Austinian school since this methodology is set up by John Austin.

o The imperative school since it regards law as the direction (command) of the sovereign.
o The Positivist School because the exponents of this school are concerned neither with the past nor
with the future of law but with law as it exists i.e., with law `as it is` (positum), the word positivism was
given by august comete.

Truth be told, it was Austin who propounded the theory of positive law, the establishment of which
was laid by Bentham
One of the fuctions of analytical school is, as the name suggest, analysis or decomposition of law into
irreducible elements.

John Austin
Austin is known as the father of English Jurisprudence. According to him,
'Law is a command of sovereign backed by a sanction.'He regards law as the direction of the politically
powerful authority backed by a sanction. This means that Law is whatever the Law-Maker (the one
with the authority to make laws) says and it supersedes judgements by judges/precedents etc.

He distinguishes law from morality. He divides law into two parts:

 Divine law: Law set by God for men

 Human Law: Laws made by men for men.

Austin accepts 3 kinds of laws:

 Declaratory or Explanatory Laws: They are not command but are already in existence
and are passed only to explain the law which is already in force.
 Law of Repeal Austin does not treat such laws as commands because they are in fact
the revocation of a command.
 Law of Imperfect Obligation They are not treated as command because there is No
sanction attached to them.

Merits:

 Simple and clear definition of Law

 Lays down exact boundaries within which jurisprudence has to work.
 Austin's positivists approach further laid down the foundation of English jurisprudence.
 Has an important and Universal Truth Law is created and enforced by the State.

Demerits:
  Customs overlooked: In the early times, not the command of any superior, but customs
regulated the conduct of the people. Therefore, customs should also be included in the study
of jurisprudence.
 Permissive character of the law ignored
 No place for judge made law: Nobody, in modern times, will deny that judges perform a
creative function and Austin's definition of law does not include it. · Conventions: Conventions
of the constitution, which operate imperatively, though not enforceable by court, shall not be
called law, according to Austin's definition, although they are law and are subject matter of a
study in jurisprudence. Austin does not treat international law as law because it lacks sanction.
Instead, he regards international law as mere positive morality.
 Rules set by private persons: Austin's view that 'positive law' includes within itself rules set by
private persons in pursuance of legal rights is an undue extension because their nature is very
vague and indefinite.
 Sanction is not the only means to induce obedience: According to Austin's view, it is the
sanction alone which induces the man to obey law. Lord Bryce has summed up the motives as
indolence, deference, sympathy, fear and reason that induces a man to obey law.
 Command over emphasized: In modern progressive democracies law expression of the
general will of the people. Therefore, a command aspect of law has lost its significance in the
present democratic setup. This definition cannot be applied to a modern democratic country.
 Does not cover international law
 Ignores social factors of law and psychological factors which secure its obedience
 The interrelationship between law and morality is ignored.

Bentham
He defined law as:
Law is an assemblage of signs declarative of a volition 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 are supposed to be subject to his power.

Bentham supported the economic principle of 'laissez faire' which meant interference of the State in
the economic activities of individuals.

· Bentham propounded the principle of utilitarianism. According to this theory, the right aim of
legislation is the carrying out of the principle utility. Bentham defined utility as the property or
tendency of a thing to prevent some evil or procure some good. According to him, the consequences of
good and evil are respectively 'pleasure and pain'.

Merits

 His constructive thinking and zeal for legal reform heralded a new era of legal reforms in
England
 He gave new directions for law making and legal research.
 In the field of jurisprudence, his definition of law and analysis of legal terms inspired many
jurists
 who improved upon it and laid down the foundations of new schools.
 He gave solutions to problems involving the nature of positive law

Demerits
  According to Friedmann, it suffers from two weaknesses:
At first, in an effort to blend materialism with idealism; Bentham underestimates the need for
individual discretion and flexibility in the application of law overestimating the power of
legislator. Secondly, this theory fails to balance individual interests with the interests of the
community
 The theory is too abstract.
 It fails to recognize complexities of human nature.
 No practical application possible for his theory.
 Pain and pleasure alone cannot be tested to judge the law.

2. Sociological school

o The Sociological school of Jurisprudence advocates that the Law and society are related to each other
o Law is social scenery. This school argues that the law is a social phenomenon because it has a major
impact on society. This school laid more emphasis on the legal perspective of every problem and every
change that take place in society.
o Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School
of Jurisprudence focuses on balancing the welfare of state and individual was realized.
o According to this school the socio-economic problem of the present time cannot be solved by means of
the existing laws.
o This school is based on logic, not metaphysical entities or divinities.

Rosco pound
Roscoe Pound concentrates more on functional aspect of law. So, his approach may also be known as
functional approach. According to him 'The end of law should be to satisfy a maximum of wants with a
minimum of friction.' He demands for maximum happiness with less disagreement.

He has given a theory of 'Social engineering' which means a balance between the competing interests in
society. Social means group of individuals forming a society. Engineering means applied science carried out by
engineers to produce finished products, based on continuous experimentation and experience to get the
finished product by means of an instrument or device. He thinks that jurist should work with a plan and
accordingly various interests of society should be protected by law.

The interest has been classified into three categories:

o Private Interests which are as follows:

o Interests of personality Physical integrity, reputation, freedom of violation and freedom of conscience.
For example: law of Torts, law of Contracts, Criminal law.
o Interest of domestic relations Marriage, parents and children, maintenance.
o Interest of substance Inheritance, occupational freedom, property.
o Public Interests are:
o Interest in the preservation of State, Administration of trusts, charitable endowments, territorial
waters, natural environment etc.
o Social Interests
o Social interests are the claim or demands or desires thought of in terms of social life and generalized
as claims of social groups.
Demerits:

o Classification of interest is not useful. Since the social interests always change withthe society and to
put them into specific order then they will lose their character and importance.
o This word social engineering is used to indicate the problem that law faces, the objectives that have to
be fulfill and the method which it will adopt for the purpose of interest.
o No ideal scale of values with reference to interest.
o By the word' engineering' no balance has been made between social needs and interests. Only this
theory simply recognizes or approves it.
o The theory ignores the fact that law evolves and develops in the society according to social needs and
wants.
o The dynamic feature of law is undermined in this theory
o The conflict between social and individual interests is not considered by him.
o Prof. Allen criticized him for focusing on wants and desires to fulfill material welfare which might be
harmful to personal freedom.

Merits

o Has focused on practical implication of law and role of jurists in building a welfare state.
o Considers working of law rather than its abstract concept.
o Regard law as a social institution which may be improved by human effort and to discover and effect
such improvement.
o Lay stress upon the social ends of law rather than sanctions.
o This theory says that legal precepts be used as guides to socially desirable results.
o His idea of functional law led to the creation of functional school
o His theories gave the most influential exposition of the American sociological viewpoint.

Dugit
The theory of Duguit under sociological school is a social solidarity. Social solidarity means the greatness of
society. Duguit said that there are mainly two types of needs of the society:

29. Common Needs

Which are fulfilled by mutual assistance.
30. Adverse Needs.
Which are fulfilled by the exchange of services. No one can live without the help of other. Even a state
cannot exist without the help of other state. One cannot produce So he has to depend upon all things
required for him. others. The dependency is called social solidarity. For this purpose the division of
labor is necessary. Division of labor will fulfill all requirements for the society. This philosophy or views
is called social solidarity.

Merit
 o He said to procure and to manufacture necessities of life men depends upon society. His theory
advocates peace and solidarity
o He attacks the myth of State sovereignty and compares the State to any other organization.
o He also mentions the functions to behave in the society are also dependable upon each other. The aim
is to safeguard interdependence or to fulfil all necessities and till this end is not achieved aim of the
law is not fulfilled
o The end or the result of all human activities and organization is to ensure interdependence of men
which is social solidarity or theory of social fact which means men should live together as formation of
law is very essential for community life.
o He minimizes the functions of the State which leads to a reduction in the role of the legislator in his
understanding.

Demerits

o Duguit was against State sovereignty. He thinks it is the will of the people that who will govern them. So
state is also under a duty to ensure 'social solidarity
o There was no difference between public law and private law because it will elevate power of State
above the rest of the society.
o Social solidarity is vague because judges will decide whether an 'Act' or 'Rule' is furthering social
solidarity which is very dangerous for the judicial system as judges have their known limitation. it may
lead to judicial despotism
o His law confuses with natural law theories because if law does not further 'social solidarity' then it is no
law at all.
o Though Duguit emphasis of interdependence in society but his theory does not perform well due to
minimum interference of state because in modern times social problems of modern community can be
solved better by state activity
o His theory may be subject to different interpretations and in the end, would serve the interests and
purposes of lawmakers.
o His use 'is' instead of 'ought' confuses the definition of law with natural law theories.
o His theories were inconsistent where one side he was claiming that biological evolution has structured
the state whereas on the other side he was contradicting it by saying that
State has no personality of its own.

3. Historical school

o The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861
o Historical School of Jurisprudence describes the origin of law. This school argues that the law was
found not made.
o The Historical School believe that law is made from people according to their changing needs. It
believes that law is an outcome of development of the society because it originates from the
conventions, customs, religious principle, economic needs of the people. Basic source of historical
school is custom.
o A custom is a traditional and widely accepted way of behaving or doing something that is specific to a
particular society, place, or time. Customs are considered superior to
 legislations in this school. The reasons for the emergence of this school are:

 It came as a reaction to the natural school of law.

 It opposes the ideology of the analytical school of jurisprudence.

Friedrich Carl Van Savigny (1779-1861)

A product of times the germ of which like the germ of State, exists like men as being made for society and
which develops from this germ various forms, according to the environing the influences which play upon it.

Main points of savingny's theory are:

o That law is a matter of unconscious and organic growth. Therefore, law is found and made. Law is not
universal in its nature. Like language, it varies with people and age.
o Custom not only precedes legislation but it is superior to it. Law should always conform to the popular
consciousness.
o As laws grow into complexity, the common consciousness is represented by lawyers who
o formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and
their work is to shape the law accordingly. Legislation is the last stage of law-making and, therefore the
lawyers or the jurists are more important than the legislators.

Merits

o This theory is that law is influenced by the culture and character of the people
o Savigny's theory traced the course of the evolution of law in various societies.
o Savigny's theory lays the seeds for the development of sociological and evolutionary

Demerits

o Inconsistency- One side savigny asserted that the origin of law is in the popular consciousness and on
the other hand argued that some of the principles of Roman law were of universal application.
o Savigny emphasised the national character of law. While advocating national character of law he
entirely rejected the study of German law and took inspiration from Roman law.
o Volksgeist is not the exclusive source of law- Savigny said that popular consciousness is main sources
of law it is not true. Because some time an alien legal system is successfully transplanted in another
country and sometimes a single personality greatly influences a legal system that is not a popular
consciousness.
o Customs not always based on popular consciousness Many customs and practices have been declared
illegal. Charles Allens criticized him for emphasizing the idea of law made by customs as he was of the
view that customs are not based on the consciousness of people but for the powerful ruling class.
o Juristic Pessimism- According to Savigny legislation must accord with popular consciousness but in
modern time it is wrong because today's legislation has much power to make law.
o Many things unexplained- He does not explained many things which developed by certain powerful
communities that is in India slavery untouchables etc.
 o He ignored the judge made law- Judges has played an important and creative role in the function of
making law but Savigny's theory has taken this role very lightly.

George Friedrich Puchta

Puchta was a great jurist as well as student of Savigny his ideas are more logical and improved. He uses the
word 'right' in the place of 'law'. According to him men always livedin unity but people are different by their
behavior and unequal. This brings out the idea of law. Then state comes into existence. But neither the people
nor the state alone is the source of law. All laws come to existence by Volksgeist. Popular consciousness ties the
people in one community like common language and religion. According to him customary law is the best
expression of national spirit or Volksgeist so custom so custom is superior to legislation.

Merits

o His ideas were more logical and improved than Savigny

o He divided general will from individual will from which conflicts arise.
o His division and description of conflicts between the general will and individual will made the state,
intervention theory logical
o He gave two-fold aspects of human will and the origin of a state which was absent in Savigny's theory
making it rigid.

Demerits

o Ignored the historical aspects of legal development.

o His ideas were not accepted initially due to ambiguity which was later corrected by him.

4. Philosophical school

According to the philosophical school, also known ethical or natural school, legal philosophy must be based on
ethical values so as to motivate people for an upright living. According to this school the purpose of law is
maintain social harmony and to maintain to law and order in society and legal restrictions can be justified only if
they promote the freedom of individuals in the society.

The philosophical or moral school concerns itself mainly with the connection of law to specific thoughts which law is
intended to accomplish. It tries to explore the reasons for which a particular law has been established.

This school believes in the law of logic and reason.

Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the law is the result of human
reason and its motivation is to hoist and praise human identity

Grotius
 o Founder of international law
o Grotius, Founder of international law, said that a system of natural law may be derived from the social
nature of man.
o He defined Natural law as

The dictate of right reason which points out that an act, according as it is or is not in conformity with rational
nature, has in it a quality of moral baseness or moral necessity.

In this way, he built up a system of natural law that should command universal respect by its own inherent
moral worth. His definition also states that logical application is backed by moral values.

Merits

o emphasized morals to describe righteous conduct in society

o Built a system of natural law that should command universal respect by its inherent moral worth.
o Emphasizes on reasons and origin of law on basis of morals.
o This system of law has been derived from the social nature of man.
o Agreement of mankind concerning certain rules of conduct is an indication that those rules originated
in the right reason.

Demerits

· His theory was based on morality but there is a difference between ethics and morality.
· Ethics are the behavioral pattern of the person whereas morality are the values imbibed in
him.
· Beside morality there are other factors social, economical and political patterns of the
society which are very important for the formation of law.
· Legislation, customs, precedents etc. are also the other sources which are very important in the formation of
law.
· Hugo said that Natural law deserves universal command which is not possible in modern
times because now laws are formed by taking state, people and nature into consideration
and then to make laws according to the need of the society.
· This definition is dependent on logic/reason, something which varies from person to
person, hence there wouldn't be uniformity of law.
· Same goes for moral baseness and necessity as something which may feel morally correct to one may not to
the other and vice versa.

 The Philosophical or Ethical School concerns itself chiefly with the relation of law to certain ideals which law is meant to
achieve.
 It seeks to investigate the purpose for which a particular law has been enacted.
 The main features of the Ethical School of Jurisprudence are as follows:

1) The concept of justice has a philosophical or ethical content and law and justice are closely inter-related concepts. Law is only
an instrument towards the fulfillment of the objective of justice;
 2) The Ethical School of Jurisprudence concerns itself with the manner in which the law fulfils its purpose of attainment of
justice;
3) The study of difference between the spheres of law and justice; and
4) The ethical significance of legal conceptions.

Immanuel Kant (1724–1804):

 Kant held that ethics and law are two different things. According to him, ethics relates to man’s spontaneous acts, it
deals with the inner life of the individual while law deals with all those acts to which a man can be compelled, it regulates
only his external conduct.
 The distinctive feature of man is his ability to will and the principle which determines this will is called “an
imperative” by Kant.
 Imperatives are of two kinds:

a) The hypothetical imperative, which presents the necessity of an act as a means towards a desired end; and
b) The categorical imperative, which presents an act as of itself objectively necessary without reference to any ulterior end.

 He says that it is the categorical imperative that should govern the human will and it proceeds from the conception that a person
should so act that his rule of conduct, not having any ulterior ends, permits him to desire that it may become a universal law.
 As regards the function of the State, he asserted that it should confine itself to maintenance of law and order and
administration of justice.

Stammler (1856–1938)

 Stammler is a neo-Kantian and his philosophical position is summed up in The Theory of Justice.
 He advocated an alternative theory of law and opined that apart from positive law which was investigative, there is need for a
just law.
 According to him, law is “just” if it furthers social ideal, ie, harmonizes individual interests with those of society.
 There are two pre-requisites for fulfillment of this social ideal.

A. It is necessary to maintain proper interest of each individual and. This requirement leads to two principles:

i. “The content of a violation must not be left to the arbitrary control of another”.
ii. “A juristic claim must not subsist except on the condition that the one bound may still remain his own neighbor” that is, may be
an end in himself.

B. Social co-operation must be ensured among people. This requirement of social co-operation leads to two principles:

i. “He who is juristically united with others cannot be arbitrarily excluded from the community”.
ii. “A power of disposition juristically granted cannot be exclusive except in the sense that the one excluded may still
remain his own neighbor.”

Other Jurist:

1) Hegel (1770–1831): Kant’s doctrine of freedom of will was extended further by Hegel. According to Hegel, the purpose of
making laws is to reconcile the conflicting egos in society which is achieved by the merger of self-centered consciousness of each
ego resulting into universal consciousness.
2) Fichte: He deduced his legal theory from the inherent self-consciousness of a reasonable man. According to him, the State
should protect only those rights of an individual which are necessary conditions of his personal existence. According to
Fichte, relation between individual and State are regulated by three basic principles which are as follows: (i) an individual
becomes a member of the State through fulfillment of civil duties; (ii) the law limits and assures the rights of the
individuals; and (iii) outside his sphere of civil duties, an individual is free and only responsible to himself.
3) Schelling (1775–1854): He said that law is a means by which the individual will is harmonized with the general will of the
community.
4) Kohler (1849–1919): He was greatly influenced by the Hegelian Legal Theory. He defined law as, “the standard of conduct
which in consequence of the inner impulse that urges man towards a reasonable form of life, emanates from the whole, and is
forced upon the individual”. He is also called as neo-Hegelian by some jurists.
5) Del Vecchio: Early legal philosophy of Del Vecchio reflects the influence of Kant and Fichte but his work on the relation between
individual and State shows that he was inspired by Hegel too. He treated law as a phenomenon of nature and an expression of
human liberty directed towards a definite purpose.
6) Gneist (1816–1895): He who regarded himself as a follower of Savigny also came to the conclusion that a fuller development of
legal science could be attained only by taking up again the natural law doctrines of the past, and giving them further
development.
7) Windschild (1817–1892): He has pointed out that the antithesis of the Philosophical and Historical Schools has disappeared by
each recognizing the correctness of the main contention of the other side, thus paving the way for evolution of synthetic juristic
philosophy in later times.

5. Realist school

American Realism:

· In America, Sociological Jurisprudence has developed an extreme wing under the name of the Realist School.

· Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final
decision in the case before them.

· Realists define law as the generalized prediction of what the courts will do. Realists uphold that only judge-made law is genuine
law and they do not give any importance to laws enacted by legislatures.

· Llewellyn says that realism is not a school of jurisprudence. At best it may be called a branch of Sociological Jurisprudence.
That’s why sometimes it is called the “left wing of the functional school”.

· Although the descriptions “realism” and “legal realists” are commonly used, this terminology has been abandoned in more recent
writings. Jerome Frank has preferred the phrases “experimentalists” or “constructive skeptics”, and he described his own attitude as
one of “constructive skepticism”

Llewellyn (1893–1962)

· According to him, realism means a movement in thought and work about law. It distrusts traditional legal rules and concepts. It
concentrates more on what courts and people are actually doing. It does not accept theory that the legal rules are the only operative
influence in the decision of a case.

· According to Llewellyn following are the main features of realism:

i. Realism is not so much a new school of jurisprudence as a new methodology in jurisprudence.

ii. Realists regard law as dynamic and not as static.

iii. Realism assumes a temporary divorce of the “is” and “ought” for purposes of study. This means that the ethical purposes, which
according to the observer should underlie the law, are ignored and are not allowed to blur the vision of the observer.

iv. Realism emphasizes the social effects of laws and of legal decisions.

Jerome Frank (1889–1957)

· Frank’s thesis is that law is uncertain. “Certainty of law is a legal myth”.

· Frank’s original view was that “law on any point is either (a) actual law, ie, a specific past decision as to that situation, or (b)
probable law, ie, a guess as to specific future decisions”.

· But, later on, he showed a reluctance to use the term law.

· Frank divided realists into two camps:

i. “rule skeptics”- rejected legal rules as providing uniformity in law, and tried instead to find uniformity in rules evolved out of
psychology, anthropology, sociology, economics, and politics

ii. “fact skeptics”- This rejected even this aspiration towards uniformity.

· Other American Realists:

1. Holmes: In 1897, Justice Holmes issued a paper in which for the first time seeds of realism were sown by him when he put forward
a novel way of looking at law. He says that if one wishes to know what law is, one should view it through the eyes of a bad man, who
is only concerned with what will happen to him if he does certain things.

2. Gray: defined law as “what the judges declare”

Scandinavian Realism:

· Along with the realist movement in America, a simultaneous wave of realism also developed in Sweden which was pioneered by
Professor Hagerstrom, Olivecrona, Alf Ross and other jurists.

Hagerstrom (1868–1939)

· He may be regarded as the founder of the realism in Sweden.

· He denied the existence of objective values. According to him, there are no such things as “goodness” and “badness” in the world.

· The words represent simply emotional attitudes of approval and disapproval respectively towards certain facts and situations.

· He says that word “duty” only expresses an idea, the association of a feeling of compulsion with regard to a desired course of
conduct.

· Hagerstrom denied the possibility of any science of “ought”. All questions of justice aims and purposes of law are matters of
personal evaluation and not susceptible to any scientific process of examination.

Alf Ross

· He admits the normative character of law. Ross says that “a norm is a directive which stands in a relation of correspondence to social
facts”. When it is said that a norm exists it means that certain social facts exist

and this in turn means that the directive is followed in the majority of cases by people who feel bound to do so.

· Norms of law may be further divided into :

a. “norms of conduct”: which deal with behavior and

b. “norms of competence or procedure” which direct that norms brought into existence according to a declared mode of procedure
shall be regarded as norms of conduct.
· Ross defined valid law. According to him, valid law means the abstract set of normative ideas which serve as a scheme of
interpretation for the phenomena of law in action, which again means that these norms are effectively allowed and followed because
they are inexperienced and felt to be socially binding by the judge and other legal authorities applying the law

· Other Scandinavian Realist:

1. Lundstedt (1882–1955)

· He is regarded as the most extreme of Scandinavians.

· According to him, law is simply the fact of social existence in organized groups and the conditions which make possible the co-
existence of masses of people. He asserts that law at any time, place, and society is determined by “social welfare” which is the
guiding motive for legal activities.

2. Olivecrona

· He expressly refrains from defining law.

· The chief merits of his work may be summed up as follows:

a) He destroyed many traditional myths concerning law, eg, binding force, and command.

b) He has given a moderate, sane, and commonsense approach to some highly abstract problems of legal philosophy.

c) His approach should not be regarded as self-sufficient, but it is an invaluable corrective to some others.

o Realist School is a type of school which focuses on decisions. It is a branch of sociological approach
o In actual sense, there is no realistic school. It is known as 'realism' that is actually a movement which
consists of thought and works in law.
o It also focuses largely on the evaluations of any parts of law in respect to its effect
o It also creates a sense of distrust in the traditional legal values and also the concepts designed so far as
they appear to be described what either courts or common people are actually doing.
o Realists have a pragmatic approach towards understanding jurisprudence and thus it emphasizes the
judicial organization more which is responsible for the application of the law.
o The realist school of law believes that law is real and co-relates law with reality.
o There are two types of realist school:

 American Realist: the scholars along with learning from there own experiences, but also
observed the judgements and learned from them.
 Scandinavian Realists: in this, the scholars believed only in their own experience.

John Chipman Grey:

According to Grey,
The Law of the State or of any organized body of men is composed of the rules which the courts, that is the
judicial organ of the body lays down for the determination of legal rights and duties.

John is considered as the father of American Realism.

He, according to him, states that codified laws are immaterial unless they are applied by a judge. He says that
law is basically the judgement that the court passes. He implies that body of written rules are lifeless orders
 and they are infused with life when the judge applies it.

Merit

o His theory is relatable to real life

o Gives a chance for own interpretation by people.
o Focuses on 'what law is' and not 'what law ought to be'.
o Observes similar cases in the past as well.

Demerits

o Does not take into account the statute law

o Puts excessive faith on judges.
o Does not consider that the jugdement may include judges personal bias
o This definition is not concerned with the nature of law, rather than its purpose and ends.

Jerome frank
He is considered one of the most important philosophers of the realist school. He explained by giving an
example of the relationship between the certainties of law in men by describing it in terms of a father-son
relationship. Like a son gets protection from his father similarly a man gets protection from the law.

Merits

o He states that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name
of precedents or codification.
o He points out constructive work that every lawyer and judge needs to do.
o He gave an emphasize on importance of lawmaking by evaluating facts of each case under changed
social circumstances.
o His view was to maintain balance and to develop law parallel to advancement in society.

Demerits

o His approach was not considered useful in terms of the law.

o Some critics criticized him on using the Freudian approach of psychological development of a child in
his theory, calling it the Freudian approach of jurisprudence.
o He exaggerated the human factor in judicial decisions and focused on the roles lawyers and judges
only.
o The realist approach was based on the American system of the judiciary and thus is not universally
applicable.

Immanuel Kant
Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the personal
wishes of another man in accordance with a general law of freedom.

Kant's legal philosophy is a theory of what the law ought to be. he distinguished between legal duties and legal rights.
He also distinguished between natural rights and acquired rights. He recognized one natural right of the freedom of
man in so far as it can coexist with everyone else's freedom under a general law. According to Kant, the function of the
State is essentially that of protector and guardian of law. The aim of Kant was a universal world state.

He differentiated between ethics and laws according to him ethics relates to man spontaneous acts whereas laws deal
with those acts which the man is compelled to do by the state and society. Ethics deals with inner life or insight or
consciousness of the people whereas laws regulate external conduct of the person. He said that legislation could be
effective only when it represent united will of the people. According to him justice is relative concept depending on
conditions, place, social values etc. in which an action takes place. He said that laws must be metaphysical derived from
reason in order to be just.

Merit

 He recognized one natural right of freedom of a man in co-existence with other's freedom in general law
 His aim was universal law state.
 According to him the function of the state is to safeguard law and be the guardian of the law.
 He states that ethics are the internal consciousness of a person whereas law is the external conduct of a man.
 Emphasized the united will of people to validate legislation.

Demerits:

 Since his theory entirely based on 'what law ought to be' he forgot to consider the past and present of the law.
 He denied the concept of natural law which is very important for the existence of laws.
 He theory has given theoretical differences between ethics and laws but there is no practical application of
them.
 He has also not given importance to other sources like customs which are considered to be oldest source of
law.

Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation, application, and
requirement of laws. Jurisprudence is the investigation of theories and methods of insight in regards to the law. It has
viable and instructive esteem.