Q. 4 (a). Austin divides Jurisprudence into “General and Particular. To what extent Salmond and Holland agree with this division?
Ans. Austin’s division of Jurisprudence-Austin divides jurisprudence into general and particular jurisprudence.
General Jurisprudence- By “general jurisprudence” is meant science of positive law not limited to one particular place. It is a science of different systems of laws obtaining in different societies. It is universal in nature and takes account of various systems of law and thus is also called as pure or universal jurisprudence.
Particular Jurisprudence- On the other hand, particular jurisprudence is science of particular system of law, present or past. Its field is confined to one particular country and is, therefore, sometimes termed as national jurisprudence. General jurisprudence has a wider scope than particular jurisprudence.
It may, however, be noted that the meeting ground of Austin’s general and particular jurisprudence is positive law, in so far as in each case matter comes out of positive law. While in the former case positive law common to all systems is taken into consideration, in the latter case we are concerned with particular system of (positive) law. In the words of Austin himself. “The proper subject of general or universal jurisprudence is a description of such subjects and ends of law as are common to all systems and of those resemblances between different systems which are bottomed in the common nature of men or correspond to the resembling point in these several portions. He explains, that general jurisprudence is “the science concerned with the exposition of the principles, notions and distinctions which are common to the systems of law, understanding by systems of law, the ampler and matured systems. On the other hand particular jurisprudence is the science of any actual system of law or of any portion of it. The only practical jurisprudence is particular.
Criticism of Austin’s division-Austin’s division of jurisprudence has been subjected to criticism both by Salmond and Holland.
Solmond says, “General jurisprudence involves the misleading suggestion that this branch of legal science relates not to any single system of law, but to those conceptions and principles that are to be found in all developed legal systems and which are, therefore, in this sense general. It is true that a great part of the matter with which it is concerned is common to all mature systems of law, but it is not because of universal reception that any principle pertains to the theory or philosophy of law. Even if no system in the world save that of England recognized the legislative efficiency of judicial precedents, the theory of case law would nevertheless be a fit and proper subject of general jurisprudence. Jurisprudentia generalis is not the study of legal systems ems in general but the study of general or fundamental elements of a particular legal system and those fundamental elements may find a place in every system of law prevalent in a civilized society.
Holland criticizes Austin on the ground that in case of particular jurisprudence, material or data may have been taken from a particular source yet when generalized that science itself holds good everywhere and so cannot become particular. In Holland’s words “a science is a system of generalization which, though they may be derived from observation over a limited area, will hold good everywhere assuming the subject-matter of the science to possess everywhere the same characteristics.” He further says, “principles of jurisprudence, if arrived at entirely from English data, would be true if applied to the particular law of any other community of human being, assuming them to resemble to the human beings who Englan inhabit England. Hence there cannot be anything like particular jurisprudence and so also general.
Holland’s criticism of Austin has not, however, gone unchallenged. Holland’s assumption regarding resemblance of different communities in essential is disputed and with this fails his criticism of Austin. According to Puchta “Law has its provincialisms no less marked than language.”
“Races and Nations do not travel by the same roads and at the same rate” thus observed Maitland. For example, under Sunni school of Mohammedan jurisprudence a Muslim male cannot marry a Hindu female, if he marries the marriage is only fasid (irregular) and can become valid or regular when the Hindu female embraces Islam. Whether she does embrace Islam or not, but the children are full legitimate and can inherit from both parents. But the parties of fasid marriage have no mutual right of inheritance. The “fasid” marriage is a specie of particular jurisprudence. Similarly son’s birth right in the ancestral property of the father is a specie of particular jurisprudence which is only found in Hindu jurisprudence.
Many other examples may be cited but this proves that certain rules of law are applicable to certain particular social realms and at places where such followers of a particular law choose to reside.
Q. 4 (b). Critically analyse the definition of law as given by Austin.
Ans. Definition of law as given by Austin.-John Austin (1790- 1859); it is said, was disciple of Jeremy Bentham and has been a very reputed, innovative and very effective representative of positive Analytical School of Jurisprudence. His propoundations are known as Imperative Theory, Positive Theory and Command Theory of Law, because he postulated that law is the command of the sovereign imposing a duty which is enforceable by sanction. Proper punishment may be imposed on those who fail to obey the law. Austin is regarded as Father of English Jurisprudence. Austin confined his study to positive law and applied analytical methods for getting conclusions.
Austin meant positive law to be law properly so called (devoid of moral laws) and having political sanction for its enforcement whereas moral laws lack political sanction for its enforcement. Austin describes as attributes of positive law (1) command (2) sanction (3) duty (4) sovereignty.
Austin defined law as “a rule laid for the guidance of intelligent beings by an intelligent being having power over him” It is also described as “law is the Command of the Sovereign” Austin categorised law as Divine Law and Human Law asserting that Divine laws are set by God for men and Human laws are Laws made by men for men. In his view positive morality is not law properly so called but it is law by analogy. The study and analysis of positive law alone is the appropriate subject-matter of jurisprudence. To quote the words of Austin, “the subject-matter of jurisprudence is positive law-law simply and strictly so called; or law set by political superior to political inferiors. The chief characteristics of positive law are command, duty and sanctions, that is, every law is command imposing a duty, enforced by sanction.
According to Austin duty and command are correlative and fear of sanction (punishment) is the motive for obedience of such command in law.
Austin had accepted that there are three kinds of laws which though not commands may be included within the compass (purview) of law by way of exceptions-
(i) Declaratory or Explanatory laws. These are not commands because they are already in existence and are passed only to explain the law which is already in force.
(ii) Laws of Repeal. Austin refuses to accept these laws as commands because they are in fact the revocation of a command in the shape of earlier law which is being repealed.
(3) Laws of imperfect obligation. They are not treated as command because they lack sanction, and as per Austin, command to be treated as law must be accompanied by duty and sanction for its implementation.
The Austin, propoundation about the law that it is command of the sovereign may be criticised on the following grounds-
Criticism
(1) There are many societies which follow laws as a custom by repetition of accepted rites (customs) habitually without any command.
(2) Again in present context. The sovereign may not be found because of democratic set up of States and its governance resides in people. So ultimate sovereign comes to be the voter in a democratic sel up of society who sends his representatives in the legislature for enacting laws and there is of public opinion and changing needs pressure of the society in the formulation and enactment of laws. Law comes into being and existence by legislation, promulgation or judicial pronouncements having no place for command of the sovereign, though in strict interpretation Indian States being treated as sovereign qua other States of the world the legislature, executive and judiciary being its wing the laws so framed and given shape may be treated as command of the sovereign in changed form.
(3) Austin ignored permissive character of laws by not treating them as law just as laws which confer privileges, just as Bonus Act or Law of Wills etc. where duty part of the command is missing. But if these laws are violated or misused action can be taken in present context.
(4) In Austinian Scheme of Laws and Conception, there is no place for judge-made laws. But in present context of Indian scenario, judiciary also happens pens to be a part of State under Article 12 of Indian Constitution, though its role may be limited, yet by contempt of court laws, judiciary also commands framing of laws and its enforcement.
(5) ‘Command’ in the scheme of Austin’s theory stands over emphasised and is an inevitable factor of law as per Swedish Jurist Olivecrona, who asserts that in modern era which consists of progressive democracies ‘Law’ stands as an expression of the general will of the people, as such the ‘command’ portion or aspect of law has lost its significance in the present democratic set up where people’s welfare is the ultimate object of the State. Likewise it is unrealistic to visualise that sovereign in modern times is something separate from the community and is capable of giving arbitrary commands. The fact is that sovereign is an integral part of the community and in making of laws he is guided by public opinion. In present context public opinion is more powerful than so-called sovereign.
(6) Austin’s theory treats international law as mere morality. Austin does not treat International law as ‘Law’ because in his opinion International Law has no sanction for its enforcement. In the International community, the acceptance of International law is mere positive morality. In the present context, this view of Austin is hardly tenable in view of the increasing role of International law in achieving world peace and coercive role of Security Council which can enforce the tenets of International law by using its force under the authority of the Security Council and it proves that International law in modern sense has sanction, a power to punish the defaulters.
(7) In Austinian scheme inter-relationship between law and morality has been completely ignored. This is the greatest shortcoming of the Austin’s Theory. Law can never be completely divorced from ethics or morality which provide strength to the law. The legal concepts such as Right’, ‘wrong’, ‘Duty’ obligation etc. can be distinguished only on the basis of ethics and morality and a law devoid of ethics or morality will tend to be harsh and devoid of utility; moreover, these concepts themselves suggest that there is some ethical or moral element present in them.
Commenting on inter-relationship between law and morality, Dr. Jethro Brown has observed “even the most despotic legislature cannot think of an act without availing himself of the spirit of race and time”.
Moreover, element of ethics and morality make law acceptable, more easily enforceable and operative in a given society.
(8) It is said that ‘sanction’ as an important element of Austinian law is not the only means of inducing obedience. There are many other considerations such as fear, deterrence, sympathy, reason, loyalty, respect efc which may induce a person to obey the law. In primitive societies people obey law due to habit. The power of the State is only the last force to secure the obedience of laws.
(9) Indivisibility of sovereignty also stands for criticism while describing distinction between positive law and positive morality.
Austin said that the former was set by the political superior called the sovereign. According to Austin, the sovereign could not be under a duty because his being under a duty would impliedly mean that there is another sovereign above him. But Dr. Jethro Brown has contended that sovereign could well be bound by a duty towards his subjects.
As per Bentham sovereignty could be divided by conferring concurrent power of the law making between colonial legislature and British Crown during the colonial rule in India and elsewhere.
No doubt, at his time the Austin’s analytical innovative approach to law gave a new thrust to the understanding of law and its concepts. The merit of Austin’s theory of law lies in its simplicity, consistency and clarity of exposition.
Q. 5. Discuss the salient features of the Analytical school of jurisprudence and indicate its shortcomings. Why it is nicknamed as Command/Imperative theory of law ?
OR
Discuss the main characteristics of Analytical school. Why it is called analytical?
OR
Discuss in brief the characteristic features of the Analytical school. Why this theory is called ‘Positive theory of law?’
Ans. Salient features of Analytical school of jurisprudence- The jurists of Analytical school consider that the most important aspect of law is its relation to the State. Law is treated by the jurists of this school as an imperative or command emanating from the State. For this reason this school is known as the Imperative school. The exponents of this school are concerned neither with the past nor with the future of law but with law as it exists, de, with law “as it is” (positus). For this reason this school is termed the positive school. Its founder is John Austin who was the professor of jurisprudence in the University of London.
The positive school takes for granted the developed legal system and proceeds logically to analyze its basic concepts and classify them so as to bring out their relations to one another. This concentration on the systematic analysis of the legal concepts has given this school the name of Analytical school of jurisprudence.
In 1832, John Austin, after a course of lectures at the London. University, published a work which he entitled, The Province of Jurisprudence Determined, and what he determined came out with great vigour of analysis. After his death he achieved greater fame and became the founder of what was popularly called the analytical school. This title seems to be misleading as it suggests that analysis is the exclusive property of this school instead of being (as it is) a method used throughout jurisprudence. Hence Allen prefers to speak of the imperative school, for this emphasizes Austin’s particular conception of law.
Austin was not unmindful of the part played by ethics in the evolution of law. Indeed, he devoted several lectures to the theory of utility. But, finding works on jurisprudence full of confusion, Austin decided to confine jurisprudence to a study of law as it is, leaving the study of the ideal forms of law to the science of legislation. Austin’s followers were even more rigorous than their master in confining jurisprudence to an analysis of rules in force.
The leading exponents of the Analytical school in England are Markby, Holland and Salmond. Markby was a Judge of the Calcutta High Court (1866-1878) and his “Elements of Law” was published in 1871. Holland published his Elements of Jurisprudence in 1880. Salmond was a judge of the Supreme Court of New Zealand and his great work Jurisprudence or Theory of Law was published in 1902. The works of these authors are regarded as standard works on Analytical Jurisprudence.
The defects of analytical method are obvious enough. It restricts itself to the facts of mature legal systems and treats of law as it is. Analysis reveals Austin’s foundation to be rather unstable. Firstly, it is clear that there are no universal rules of law-hardly a rule today but may be matched by its opposite of yesterday. Secondly, there are few concepts which are common to all legal systems, and if we confine our analysis to such as we think are universal, we run two dangers; firstly, if further research shows that there are no concepts which are common to all systems, then there is no basis for general jurisprudence at all; secondly, even if a few notions are proved to be universal they form a somewhat narrow basis for a science of law. Rules of property that were considered axiomatic in 1850 do not apply in Russia or other Soviet nations nor in many other countries to-day. To-day it is increasingly recognized that useful as analysis may be, it will not suffice to answer all problems of jurisprudence.
The influence of the analytical school began to diminish in the period of ascendancy of the Historical school, but the latter too lost its hold on the world of thought by becoming fatalistic, insisting too much on the unconscious growth of law and repudiating the element of purposeful effort as a factor in legal evolution. This led to the development of sociological jurisprudence
[Note: Please also see answer to Q. No. (8)]
Q. 6 (a). Explain the theory of law presented by Sir H.S. Maine.
Or
Discuss Sir Henry Maine’s contribution to the Historical School.
Or
Discuss Maine’s views of development of law.
Ans. Sir Henry Maine’s contribution to the Historical School or Maine’s views on Development of law. Sir Henry Maine, through his comparative researches came to the conclusion that the development of law and other social institutions has been more or less on an identical pattern in alomost all the ancient societies belonging to Hindu, Roman, Anglo Saxon, Hebrew and Germanic Communities. Most of these communities are founded on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family including all its male and female members, children and slaves as also the property. The word of the pater familias was law to them, which they were supposed to follow There was, however, some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage all the affairs of the family. It is because of his kinship, namely blood relationship with the family that a person acquired a status. Thus, the law of person was to be determined on the basis of his status Thus slave, servant, ward, wife, citizen etc. all symbolised statutes which the law recognised in the interest of the community.
According to Maine pater familiar constituted the lowest unit of primitive communities. A few families taken together formed the Family Group which consisted of union of families. An aggregation of families constituted Gens which in turn led to the formation of tribes. A collection of tribes formed the community which Maine termed as commonwealth. It was in this manner that early primitive societies evolved, their relationship being regulated by the law of status which was also called as law of persons. Obviously, the individual member of the family had no individual existence than his status as a son, wife, servant etc., as the case may be. Similarly, servants and slaves had no rights in the early law.
Movement of progressive socities from status to contract. With the march of time the institution of pater families withered away and now rights and obligations were dependent on individual contracts and free negotiations between persons. This led to disintegration of the family system and emergence of contractual relations between individuals. In other words, now the individual could take final decisions himself without depending on headman of the family. The Benthamite doctrine of individual’s freedom freed slaves from the bondage of their master and now they could have rights and obligations like any other individual. Thus, emerged a free society with freedom of individual in various shephers of life. The freedom of individual in economic field has been called as doctrine of laissez faire which struck a blow to the notion of status as the basis of law. These changes in the pattern of socities led Maine to conclude that ‘movement of progressive societies has hitherto been from status to contract’. In India also emancipation of women from the domination of males, freedom available to individuals in social, economic and political spheres of life, improvement in the condition of labour and workers etc. evinces that there has been a shift of emphasis from status to contract in modern times. The transformation of English as well as Indian society from feudalistic pattern to industrial one, has brought in its wake a radical change in the status of servant, agricultural workers etc. The incapacities of Hindus in matters of marriage, divorce, succession, adoption etc. have been removed by the codification of Hindu personal laws in 1955-56. In uncodified Hindu law karta of the family who was the eldest male member of the family, dominated his authority but the codification of Hindu law has done away with the discrimination, inequality and subjugation of women liberting them from the domination of men. The new concepts of liberty, equality, freedom and individualism symbolize movement of progressive Indian Society from status to contract.
Reversal of trend from contract to status. It must, however, be stated that with the advance of time and due to the impact of industrialisation, urbanisation and modernisation, new problems of unemployment, hunger, ignorance, disease etc, have cropped up giving rise to inequality between individuals and groups within the society. Consequently, there came a counter-current of reversal from contract to status in the time of Maine himself. It was realised that idea of freedom of contract between powerful capitalist and starving labour class led to catastrophic consequences resulting into exploitation of workers. This resulted into the emergence of Trade Unionism. The workers now formed their associations and instead of individual freedom of bargaining their wages and facilities, their trade unions had the power of group-bargaining. That apart, several labour welfare legislation such as the Minimum Wages Act, Factories Act. Trade Unions Act, Workmen’s Compensation Act, Employees Liability Act, Industrial Disputes Act, Payment of Bonus Act etc. were enacted to improve the service conditions and bargainig capacity of workers in order to free them from the unscrupulous industrialists and capitalists.
With the increasing role of the State in a welfare State, it has assumed the functions of regulator to secure a social order based on justice, equality, liberty and fraternity. [Preamble to the Constitution and Art. 39). The Constitution of India seeks to promote economic interest of weaker sections of society and ensure them social justice. (See Directice Principles of State Policy enshrined in Part IV of the Constitution of India). These progressive welfare measures have forced upon the individual worker a new kind of status where he does not bargain individually but does so collectively through associations or unions. Commenting on this reversal from contract to status, the Chief Justice of the Bombay High Court in Prakash Cotton Mill Ltd. v. State of Bombay, (1957) 2 ILJ 490 (494). inter alia, remarked:
“We must not forget that we are no longer living in the age of laissez faire and the relation between employer and employees are no longer solely governed by the principles of contract. Contractual rights and liabilities are now subject to the principles of industrial law and also principles of social justice.”
With the changing role of the States, its functions have also radically changed. Now there is greater interference of the State in the individual’s activities. Even the contracts, which an individual enters into in every day life, have been standardised such as contract relating to electricity supply. carriage by railways etc., and individuals cannot alter the terms of these contracts. Progressive countries all over the world are in favour of nationalisation of services and ‘industries thus reducing the scope for contract at individual level and encouraging it on collective basis through associations, firms, unions etc. Thus, it would be seen that there has been a shift of trend from contract to status in modern times.
It must, however, be pointed out that perhaps Sir Henry Maine himself was conscious of the fact that the movement of progressive societies from status or contract may undergo change with the passage of time when unrestricted freedom of contract may prove detrimental to the interest of individuals and they might have to fight for their rights and liberties collectively in groups. This is why Maine qualified his statement by using the word ‘hitherto’, signifying that until then the movement of progressive societies was from status to contract thus leaving options open for a change in future time to come and incidently, in his own time he witnessed a transformation of society which brought reversal of trend from contract or status with the increasing role of State in the individual activities.
A perusal of the histroy of development of various communities would reveal that the trend as observed by Maine has not been uniform all over the world. Maine’s theory certainly holds goods in case of capitalist countries which have transformed into socialist States. But Maine’s assertion about status to contrcat has no application in totalitarian States where the freedom of contract is narrowed down to the lowest limits and there is authoritarian rule.
Q. 6 (b). Discuss the distinctive characteristics of Historical School of Jurisprudence. Distinguish clearly between Analytical jurisprudence and Historical jurisprudence.
Ans. Distinctive characteristics of Historical School of Jurisprudence- The rise of Historical school of jurisprudence may be traced to many causes. The first is the reaction against the unhistorical assumptions of the natural law theorists. Secondly, the attempt to found legal systems based on reason without reference to past or existing circumstances was revolutionary in execution. The culmination of it was the French Revolution. Thirdly, the French conquests under Napoleon aroused the nationalism of Europe. Fourthly, the French also spread the idea of codified law, and as a reaction to anything, which French carried with it an aversion to the code was the result.
The term “Historical jurisprudence” is usually associated with the particular movement in legal thought of which Savigny is its famous exponent and Maine is its supporter.
The important characterstics of the Historical School of Jurisprudence are given below-
(1) Law is found not made. The growth of law is essentially unconscious and organic process; legislation is, therefore, of subordinate importance as compared with custom. Law is self-existent.
(2) As law develops from a few easily grasped legal relations in primitive communities to the greater complexity of law in modern civilization, popular consciousness can no longer manifest itself directly, but comes to be represented by lawyers, who formulate the technical legal principles. Legislation follows as the last stage, the lawyer is, therefore, a relatively more important law making agency than the legislator.
(3) Laws are not of universal validity or application. Each people develops its own legal habits, as it has its peculiar language, manners and Constitution. Savigny insists on the parallel between language and law. The VOLKSGEIST, i.e., the will of the people or consciousness of the people which manifests in customs, tradition or habits or a particular mode of behaviour for a particular occassion signifies itself in the law of the people it is therefore essential to follow up the evolution of the VOLKSGEIST by the legal historical research.
According to Savigny, “law grows with nation, increases with it and dies at its dissolution and is a characteristics of it”.
Savigny deprecated the admiration bestowed upon the then codifications of law in Prussia, Austria and France. Savigny was inspired by his profound study of Roman law, whose development was to him the model of wise juristic guidance moulding the law through gradual adaptation for centuries before the corpus juris gave the final form of codification. This explains Savigny’s preference for the jurist rather than the legislator as the medium of legal progress. A somewhat strained blend of Savigny’s two convictions, first, that legal science is better than legal reform and second that popular consciousness is the source of all law, is his contention that, in advanced civilization, the jurist represents and formulates popular consciousness.
The main tenets of Savigny’s theory can be summarized as follows:-
(a) Law has an unconscious organic growth: it is found and not artificially made
(b) The basis of law is to be found in VOLKSGEIST which means people’s consciousness or will, and consists of traditions, customs, habits, practices and beliefs of the people.
(c) Law is not universal in nature, it varies with people, time and needs of the community.
(d) Since law should always conform to popular consciousness (VOLKSGEIST) custom not only precedes legislation but is superior to it
(e) With the growing complexity of law, the popular consciousness is represented by lawyers who are nothing but mouthpiece of the popular consciousness.
The founder and the chief exponent of the English Historical school of law was Sir Henry Maine. He was strongly influenced by Savigny historical approach to the problem of jurisprudence, but he went beyond Savigny in undertaking broad comparative studies of unfolding legal institutions in primitive as well as progressive societies.
Distinction between Historical and Analytical jurisprudence
Historical jurisprudence is the history of first principles and conceptions of legal system. As Analytical jurisprudence is mainly concerned with the systematic exposition of legal system, so the Historical Jurisprudence is mainly concerned with general history of law. In other words, it can be said to be the general portion of legal history.
Analytical Jurisprudence deals with the systematic exposition of legal conception, that is to say, it is directly connected with the law ‘as it is’ while Historical jurisprudence is concerned with the problem, how did law come to be? Jurists of Analytical school, particularly Austin says that law is the command of sovereign. Historical jurists do not believe in command theory. To them source of law is the instinctive science of right possessed by every race. They emphasize the spirit of people, the VOLKSGEIST. Thus law is the product of time in the slow and gradual process like language. Custom is not the evidence of law but its source. Custom is transcendental law and other methods of legal evolution, e.g., precedent and legislation, derive their authority from custom.
In short, the Analytical school tries to prove existence of law on the basis of logic and analysis while historical school proves that law is followed because people were customarily following it because of its acceptance by the people through their will or consciousness termed as “VOLKSGEIST”.
The Analytical school traces the law as command of the sovereign while Historical school traces the existence of law even in primitive societies where there was no sovereign as such and the historical school traces the existence of law to the general will of the people to obey the law in shape of customs, habits etc.
Q. 7. Discuss the salient features of the Sociological school of Jurisprudence.
Ans. Salient features of the Sociological School of Jurisprudence- The chief exponents of this school of jurisprudence are Ihering, Duguit and Roscoe Pound. The fundamental tenet of this school is that we cannot understand what a thing is unless we study what it does.
The Sociological School of thought has laid emphasis on social phenomenon and facts. To Roscoe Pound, it is a study of reconciliation of – interest. To Duguit it is a study of social fact. Ihering said it is a study of social interest.
The approach which is styled sociological is perhaps the most characteristic of our age. Strictly speaking, the term does not connote one approach, but many approaches, often of a diverse nature, whose common feature is that they are all in one way or another concerned with the consideration of law in relation to society.
The most attractive, persuasive and wise writer on legal theory is Ihering, who has been styled by Friedmann as “the father of modern 5 sociological jurisprudence.”
Ihering felt that the dominant notion to be found in the exercise of human will is that of purpose. He tells us that causality in the natural world is governed by a “because”. A stone falls because, without support, it must fall. Human conduct is determined not by a “because” but by a ‘for’, by a purpose to be effected; the ‘for’ is as indispensable for the will as is the ‘because’ for the stone. The stone cannot move without a cause, no more can the will operate without a purpose. Law is only a part of human conduct, and in the idea of purpose Ihering found the dominant characteristic of law. His study of Roman law led him to the firmly held belief that the true genius of the Roman lawyers lay not in elaboration of legal concepts, but rather in their social flair for the adaptation of those legal concepts to the changing needs of their society. Law is only an instrument for serving the needs of society, its purpose is its essential mark and this purpose is to further and protect the interest of the society. This analysis leads thering to a definition of law in the following terms:
“Law is the sum of the conditions of social life in the widest sense of the terms, as secured by the power of the State through the means of external compulsion.”
In his approach to society and law, thering was building upon the work of the English thinkers. Such as Bentham and Mill, whose utilitarianism he may be said to have adopted in his theory of purpose as the foundation of society and the criterion of law.
Duguit a jurist emphasising on social solidarity because of inter- dependence of people for survival insisted on the necessity of viewing social life as it is in fact lived, of examining the way in which society is carried on and attempting to extract the most accurate generalization from these facts. The outstanding fact of society was interdependence of men. Duguit emphasizes that this social interdependence is not a theory, not a conjecture, but a fact, the all important, never to be forgotten fact of human life. All human activity and organization should be directed to the end of ensuring the smoother and fuller working of men with men. This he calls the principle of “social solidarity”.
Duguit formulates a rule of conduct or law, which he claims is not founded upon metaphysical speculation but is apparent in the facts of life. In this way:
“Man must so act that he does nothing which may injure the social solidarity upon which he depends; and more positively, he must do all which naturally tends to promote social solidarity.”
Pound’s approach to law is in many ways an elaboration of the work of lhering. Pound tells us that the task of law is “social engineering”, by which he means the balancing of competing interests in the society.
To Pound law is more than a set of abstract norms or a legal order. It is a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction. The analogy of social engineering is one which Pound uses more than once. Pound’s work is well balanced, marked by tolerance and shrewd scepticism. Pound expects no new heaven by a stroke of the pen but he urges that the jurists should study the actual social effects of legal institutions and endeavour to make legal rules really effective for the purpose for which they were designed. Law in the action may be very different from law in the book.
According to Roscoe Pound the characteristic features of the sociological jurisprudence are as follows:-
(a) The exponents of sociological school lay greater stress on functional aspect of law rather than its abstract contents.
(b) They consider law as a social institution essentially interlinked with other disciplines bearing direct impact upon the society and uphold the view that law is designed on the basis of human experience in order to meet the needs of the society.
(c) Sociological school completely discards the abstract notions of analytical positivism which lay over emphasis on command or power aspect of law as also the dead weight of past culture and tradition which constituted the main theme of the historical jurisprudence.
(d) Sociological jurists, however, differ in their approach to the perception of law. Some prefer to adopt a pragmatic empirical recourse to study the functional aspect of law while others emphasise on defining law in terms of court’s rulings and decisions, thus, adopting a realistic approach to law.
In short, the Sociological school gives emphasis on the factual function of law, whereby the conflicting interests present in a given society should be so managed through law that maximum beneficial results should come out with least friction within the society. As such, the object of establishing a progressive society may be obtained by balancing the different interests prevalent in a society.
Q. 8. “Law is the command of sovereign”. Comment.
Ans. Law whether command of the sovereign– In his book “The Province of Jurisprudence Determined” Austin defines law as a command of sovereign. He says: “Every positive law obtaining in any community is the creation of the sovereign or state, having been established immediately by the monarch or supreme body as exercising legislative or judicial functions or having been established immediately by a subject individual or body, exercising rights or powers of direct or judicial decision, which the monarch or supreme body has expressly or tacitly conferred.”
The definition of law given by Austin contains three essentials:
(1) Sovereign- Austin defines sovereign in these words, “If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of given society, that determinate superior is sovereign in that society and the society is a society political and independent.”
The sovereign may be an individual or a body of individuals like Parliament. Every law is a command. ‘Sovereignty’ involves two marks, a positive and a negative one. The positive mark was that the bulk of given society was in the habit of obedience to a determinate common superior. The negative mark was that the determinate superior was not in the habit of obedience to some other superior.
(2) Command-To be a law, the command of the sovereign should be a general command. Austin holds that a law is a general command which obliges a person or a class of persons to acts or forbearances of a class, for example, “whoever commits murder, will be hanged” is a general command, and hence it is law.
(3) Sanction– According to Austin, “sanction” is an essential element of law. A sanction is some evil which will be inflicted on the subject in case of neglect to obey the command. Duty, command and sanction are inter-related in Austin’s scheme.
Austinian definition of law in terms of signifying sovereign or the state unique importance possesses certain advantages. It gives a clear-cut and simple test. It solves in an easy manner conflict between various juridical orders, for example between church and the State. If only the State can create positive law, then the church can have only such legal rights as the State grants to it. It gives an easy answer to the problem of the validity of the law, since law is valid for the simple reason that it has been laid down by the sovereign. It is easy to mark the moment when primitive rules become law, for we have only to ask whether there is a determinate sovereign body that has issued a command. In the prevailing confusion of modern jurisprudence clarity and simplicity are virtues to be prized.
Criticism
The criticism of the Austin’s definition of law may be stated as follows:-
(1) Sovereign, not the source of law- Austin’s definition of law has come in for much criticism at the hands of the Historical and Sociological school of jurists. Maine points out that the theory is inadequate for it tallies only with the facts of mature jurisprudence. Law is not invariably linked to sovereignty in all ages and in all times. The interdependence of law and sovereignty is not true with regard to many Asiatic communities under native rulers. At first there can be no more perfect embodiment than Maharaja Ranjeet Singh of sovereignty, as conceived by Austin……. But he never made a law. The rules which regulated the life of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribunals in families or village communities.
(2) No sovereign, no law- In primitive societies there may be no sovereign law-making power but still there is a law in the form of custom. Early law is not the command of sovereign at all, but a customary rule enforced by the public opinion. The law is prior to and independent of the existence of sovereign. Austin’s theory of law is historically inaccurate in so far as it postulates the interdependence of law and sovereignty. Austin’s thesis of law looks like circular reasoning, “Law is law since it is made by the sovereign. The sovereign is sovereign because he makes the law.”
(3) Ethical purpose of law ignored- Salmond agrees with Austin’s conclusion that law and the state are indissolubly linked together. But he criticizes Austin who has missed the ethical element in law, the idea of right or justice which inheres in any complete conception of law. It is not by accident that the expression law and justice are regarded as synonymous and courts of law are described in popular parlance as “courts of justice”. The Austinian theory does not take note of the purpose of law and cannot, therefore, be accepted as providing an adequate definition of law. Austinian theory not only misses the ethical aspect of law, but over- emphasizes the imperative aspect.
(4) No place for judge-made law- Judge made law has no place in Austinian conception of law, although the creative function of judiciary as a law making agency has been accepted in modern times all over the world.
(5) Treats International law as mere morality– Austin does not treat international law as law because it lacks sanction. Instead, he regards international law as mere positive morality. This view of Austin is hardly tenable in the present times in view of the increasing role of international law in achieving world peace.
(6) “Sanction” unduly stressed- Austin emphasized that the sanction must consist in a fear of some evil. This is perhaps a natural conclusion if we define law in terms of command. Much law, is however enabling rather than restrictive, although one law may abridge liberty, a second may give powers which otherwise a citizen would not possess. No man can supervise the distribution of his estate after his death, but the law has granted power to a testator to determine, within limits, the destination of his wealth. Hence the observance of many rules is secured by the promise of reward rather than by a lurking sanction.
Psychologically, the sanction does not fully explain why law is obeyed. Universal disobedience will rapidly destroy the whole basis of the legal order. Law is obeyed because of its acceptance by the community, and while the sanction plays its part in dealing with a recalcitrant minority, the reasons for that acceptance lie deeper. Habit, respect for the law, as such, and a desire to reap the rewards which legal protection of acts will bring are factors that are equally important.
The repelling statute, the declaratory laws, permissive and enabling statutes and rules relating to civil procedure and interpretation of statutes cannot be accommodated with in Austin’s definition of law.
According to Austin’s definition custom is clearly not law: a different definition might be devised which would include it. Finally, we must re-call to mind those rules which prescribe the effective way of exercising certain powers, e.g., the rule that a will must be witnessed by two witnesses. Austin regarded these as commands, ie., as duties coupled with the sanction of nullity. It was suggested, however, that this was not the best way of looking at it. The statement, “a will must be witnessed by two witnesses,” is no more a command than the statement, “if you wish to telephone X, you must ring him up.”
Austin’s view has been vehemently opposed by the eminent jurists of the Philosophical school, Sociological school and Historical school. The Philosophical jurists regard law as the expression of natural justice, the Sociological school conceives of it as a social institution arising out of necessity of social life, the Historical jurists maintain that law is the embodiment of the spirit of the people. Hence, they all reject the element of sanction in law.
Q. 9 (a). “The function of law is social engineering”. Examine this statement of Dean Roscoe Pound in the context of social legislation enacted in India after Independence.
OR
Discuss the principle of ‘Social Engineering, as propounded by Roscoe Pound.
Ans. Principle of social engineering- Roscoe Pound added new dimensions to Sociological school of jurisprudence. He defined law as containing the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art. He considers law as a means of a developed technique and treats jurisprudence as ‘social engineering’. According to him, the end of law is to satisfy the maximum of wants with a minimum of friction or confrontation.
Elaborating the functional aspect of law, Roscoe Pound stated that the function of the law is to reconcile the conflicting interests of individuals in the community and harmonize their inter-relations. He termed this as social engineering. Just as an engineer harmonises the different demands and expectations within the limited resources to produce a complete and useful result, the society’s different expectations are fulfilled under this concept with least friction through the useful implementation of law with the cooperation of different working units of a given society.
Roscoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society. Thus, courts, legislators, administrators and jurists must work with a plan and make an effort to maintain a balance between the competing interests in society. Thus, security of person, property, reputation and freedom of speech etc. are interests since they are to a man’s advantage. He enumerated the various interests which the law should seek to protect and classified them into three broad categories, namely, (1) Private interests, (2) Public interests and (3) Social interests.
(1) Private interest-These include-
(a) Individual’s interest of personality, namely, interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by laws of crimes, torts, contracts, constitutional law etc.
(b) The interests of domestic relations of persons such as husband and wife, parent and children, marital life, that is, views about marriage and married life as also the individual’s private interests and hobbies.
(c) The interests of subsistence such as property, succession, testamentary, disposition, freedom of contractual relations, association etc. are also included in the category of private interests.
(2) Public interests- The main public interests, according to Roscoe Pound are-
(a) interests in the preservation of the State as such; and
(b) State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, sea-shores, regulation of public employment and so on.
(3) Social interests- The social interests which need legal protection are-
(a) Interests in the preservation of peace, general health, security of transactions etc.
(b) Preserving social institutions such as religion, political and economic institutions etc.
(c) Interests preserving general morals by prohibiting transactions which are against morality such as prostitution, drunkenness, gambling etc.
(d) Interests in conservation of social resources e.g. natural resources, reformation of delinquents, protection of economically weaker sections of the society.
(e) Social interests in general progress including economic, political and cultural progress. For example, freedom of trade and commerce, freedom of speech and expression, encouragement to arts and promotion of higher education and research etc.
(f) Interests which promote human personality by enabling a person to live political, physical, cultural, social and economic life to suit his taste and improve his personality.
It can be said that Pound’s classification of interests in his theory of social engineering cannot be said to be foolproof for there may be overlapping of interests here and there. Pound himself accepted that the various interests of individuals in a society can only be broadly classified and they cannot be placed in water-light compartments.
Julius Stone has rejected the division of public interests and social interests on the ground that in fact they are all social interests. However, appreciating Pound’s classification of interests he observed, “it greatly helps to make legislator as well as the teacher and practitioner conscious of the principles and values involved in any particular issue, it is thus an important aid in the linking of principles and practice.”
Pound tackled the problem of interests in terms of balancing of individual and social interests. It is through the instrumentality of law that these interests are sought to be balanced. As Justice Cardozo rightly remarked, “Pound attempted to emphasize the need for judicial awareness of the social values and interests.
Post Independence Social legislation
The American jurist Pound regarded law as a basis tool of social engineering. How in India law and society are acting and re-acting upon each other will be shown by the following enactments passed after India became Independent:-
1. The Special Marriage Act, 1954- This Act provides a special form of marriage for all persons in India. Inter-caste marriage and inter- religious marriage have been made legal. The Act also enforces ‘monogamy’.
2. The Hindu Marriage Act, 1955- The Act made Hindu marriage monogamous and any violation of it has been made the offence of bigamy punishable under Sections 494 and 495 of I.P.C. The Act makes provision for divorce on certain grounds. Children of void marriages have also been legitimatized.
3. The Hindu Succession Act, 1956- Under prior law daughters were not entitled to the estate of the deceased if there was a son, son’s son, or son’s son’s son. The Act put daughters at par with son. Now daughter and son both inherit equally and simultaneously. The Act made a Hindu widow a full legal persona. Her limited estate has been converted into a full estate, and she is also the absolute owner of property. The Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act, 2005. Section 6 of this Act as amended by the above Amendment Act has made a daughter of Mitakshara coparcenary from her birth in her own right as if she were a son and the principle of survivorship, which was one of the main characteristics of Mitakshara coparcenary has been abolished by this Amendment Act.
4. The Hindu Minority and Guardianship Act, 1956.
5. The Hindu Adoptions and Maintenance Act, 1956.
6. The Dowry Prohibition Act, 1961.
7. Child Marriage Restraint (Amendment) Act, 1978.
8. The Consumer Protection Act, 1986.
9. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
10. Commission of Sati (Prevention) Act, 1987- The institution of Sati was prevalent and widows were forced to immolate themselves on the funeral pyre of deceased husband. This odious custom was put down by law which abolished the custom of sati and made it a penal offence to immolate oneself or to instigate another to self-immolation. This law contributed immensely to the emancipation of women and the improvement of their position in Hindu society.
11. Bonded Labour (Abolition) Act, 1976.-This Act enables the rescue of labour used by contractors and other organised bodies just like prisoners on meagre payment. It includes confinement of child labour also and their rescue and rehabilitation.
12. Prohibition of Child Marriage Act, 2006. This Act is intended to prohibit solemnisation of child marriage, and is armed with enabling provisions to prohibit child marriage. It also aims to protect and provide relief to victims and enhance punishment for those who abet, promote or solemnise such marriage.
13. Muslim Women (Protection of Rights on Marriage) Act, 2019. This Act has been enacted by the Parliament on triple talaq, which has been declared unconstitutional by the Apex Court in Shayara Bano v. Union of India, AIR 2017 SC 4609.
Q. 9 (b). Explain the principles propounded by Duguit to strengthen and promote the Sociological School of Jurisprudence. Give its shortcomings, if any.
Ans. Duguit’s theory of Law. Leon Duguit (1859-1928) was a French Jurist and Professor of Constitutional Law at the University of Borideaux. He was very much influenced by the Auguste Compte’s Theory of Law treating law as a fact, which deprecated individual rights of people and subordinated them to social interest. In other words according to Compte, the only right which man can possess is the right always to do his duty.
Duguit was also influenced by Durkheim’s ‘Division of Labour in Society’ of 1893 according to which in a society individuals have two types of needs (1) Common needs of individuals which are satisfied by mutual assistance, and (2) Diverse needs of individuals which are satisfied by exchange of services. As such division of labour in a given society is a very important fact which buttresses the interdependence of men and performing of one’s duty to make a society a living society. Duguit propounded the theory of ‘social solidarity’ according to which the interdependence of men on each other is a social fact because each individual cannot procure the necessities of life by himself.
According to Duguft, the essence of law is to secure and serve social solidarity wherein interdependence of one on each other has become inevitable in a civil and civilized society. Social solidarity is duty oriented as the member of the society are expected to perform their obligations and duties perfectly well to maintain the continuity of interdependence on each other. As such there is no scope for natural or private rights. Law consists of duty which is the basis of cooperation leading to (solidarity). The abstract concept of right is rejected and is treated as a source of conflicts. According to Duguit law is essentially an objective social fact buttressing the relations between man and man on the one hand and between man and the state on the other. In other words the emphasis given by Duguit was on maintenance of coherence and interdependence between the people and performance of their obligations and duties towards each other to have a social solidarity which was to be procured by the assistance of law. According to Duguit law is not a body of rights, the only real right of man is to do his duty according to his place in the society.
According to Duguit ‘Justice’ leads to the fulfilment of social needs and corresponding obligations. Law must promote social solidarity for attaining maximum good of the society. State regulations must thrive for achieving the ends of social and economic justice for all. He views ‘Justice’ as a social reality and its roots lying in the society itself and not in the will and dictate of the sovereign.
According to Duguit state is in no way different from any other human organisation and therefore, its functions should be judged from the point of need of social solidarity and common good of the society. He advocated decentralisation of state power and minimisation of state interference and its functions. He maintained that legislators do not frame law but merely give expression to judicial norms formulated by the consciousness of the social groups. State exists for performing the functions which promote social solidarity and not for the exercise of sovereignty. In short, the main attributes of Duguit’s legal thought are as follows:-
1. Rejection of state sovereignty and considers the state merely as an expression of the will of the individuals who govern.
2. The unity of state is not consistent with the collectivist associations.
3. Law is only an embodiment of duties of individuals as a unit of social organism for furtherance of social solidarity.
4. Duguit emphasised on the interdependence of men with each other as a member of the community.
5. He contemplates gradual withering away of the state and its replacement by group of associations engaged in the service of the society and furthering the social solidarity.
Criticism.-(1) The concept of social solidarity excludes all metaphysical considerations from law and is itself based on the ideal of natural law. It is alleged that Duguit “pushed natural law out through door and let it come in by window.”
(2) He is said to be confused in distinguishing what the law is and what it ought to be. For him law is that which promotes social solidarity. Any thing else, if fails to do so, is not law.
(3) He fails to assess the growing role of state in modern times. The minimum interference of state is correct where different social groups are strong enough but the modern complexity and interdependence of men necessitates the greater intervention of the state to regulate human behaviour and do welfare activities for weaker sections of the society.
(4) The term ‘social solidarity’ is vague and is prone to different interpretations by different groups according to their suitability. If it is left to judges, the meaning given by a Judge may be subjective according to his own perception. ‘Social solidarity’ may be differently interpreted by different persons to suit their own purposes. They gave its meaning in the shape of denial of industrial rights while Fascist interpreted it as suppression of trade union movement.
(5) The theory stands on factual conditions and propagates on co- operation to fulfil the obligations of men in society for continuing interdependence.
Duguit’s contribution. The greatest contribution of Duguit to juristic thought was that he denounced the omnipotence of the State which had led to despoticism and totalitarian rule. By rejecting the notion by State sovereigntly he subordinated the State to the social needs.
Q. 9 (c). Discuss the social contract theory.
Ans. Social contract theory. This theory pre-supposes that the state is a creation of agreement by the people. The people pay obedience to the authority of the State because they have agreed to do so. Hobbes, Locke and Rousseau were main exponents of the social contract theory of origin of State.
The State, the individual, his freedom and an adequate living standard of life within a peaceful progressive civil society having some regulating force in the shape of law, have always been the subject-matter of thinking in every span of time by the jurisprudentists, all over the world. The interaction of all these co-existent units has attracted the juristic thinkers to come to some conclusions for the development, co-existence and peaceful routine functioning of mankind.
The concept of State and how it came into being has always been a subject-matter of attention for all those who wanted to have a peaceful and progressive living.
For origin and evolution of a State the jurisprudentists have given the following 5 theories on the evolution of a State-
(1) Divine theory propounded by Greek thinkers asserting that State is the creation of God. The Hindu Mythological findings also support this theory believing that King’s had in them some inkling of God.
(2) The Natural theory supported by Aristotle.
(3) The Social Contract Theory-supported by Hobbes, Locke and Rousseau.
(4) The Patriarchal Theory-having the concept of family clear tribe to be knit together by the ties of kinship. This theory has been supported by Henry Maine.
(5) The Matriarchal Theory-having emphasis on the Horde and unorganised tribe in which promiscuous sexual intercourse was common creating the problem of tracing the child’s father. The Polyandry took its root to replace uncontrolled sexual relationship giving importance to matriarchal superiority. Me Lenan and Morgan were the main propounders of this theory.
Social Contract Theory
The theory as per its name presupposes that State is a creation of agreement by the people. The people pay obedience to the authority of the State because they have agreed to do so by giving up certain liberties to gain protection from the authority or State for peaceful living. Chronically first propounder of this theory, Thomas Hobbes (1556-1679), in his classic work Leviathan (1651) had supported despotic rule of Stuart Kings arguing that people have no right to revolt against the authority of the State. Tracing the origin of the State, Hobbes has observed that originally man lived in a ‘state of nature’ united by social bonds but without any political organisation. The ‘State of nature’ described by Hobbes was very disappointing showing that life of man was “solitary, poor, nasty, brutish and short’, because at that time there was no industry and no art and people lived in constant fear of danger, violence and death, stronger exploiting the weaker people. Soon people got purturbed and puzzled of this State of constant struggle and agreed by a contract to be ruled by someone who would extend protection and peace to their life. It is by such an agreement that political authority came into existence. By passage of time, this a political authority came to be known as the State. A sovereign was chosen by the people to whom they surrendered their rights to be governed and controlled. Thus, authority of the State got vested in the sovereign so chosen by the people themselves. Thus, the contract was between the people inter se and sovereign was not a party to it but he was rather the result of the pact. The authority of the sovereign was not limited by an agreement. The power of the sovereign was absolute and his ‘will’ was the ‘law’ which the subjects were bound to obey. The social contract so agreed by the people was of permanent nature being irrevocable and could not be brought to an end by the people. The sovereign was the Central power of authority. As such Hobbes tried to support the monarchy in England who had unlimited authority for restoration of peace and order and to rule its people.
The second jurist who has propounded the theory of social contract is John Locke (1632-1704). Locke was against despotic monarchical rule and supported English Revolution of 1688 in the reign of King James II who was succeeded by William III with people’s support. Thus, supremacy of British Parliament was established and restrictions on people’s liberty imposed by the ruler was vehemently opposed. Since title of the ‘King’ was conferred by the Parliament, that is, people, the King could rule only with the consent of the people. Locke supported limited constitutional Monarchy. He opined that man originally lived in a state of nature but their life style was not one of universal war but pre-eminently social in character. The want of settled law induced people to abandon the state of nature and enter into an agreement for the purpose of establishing a civil society under a sovereign. Thus, Locke did not agree with Hobbes’ views that men gave up their natural rights absolutely, instead sovereign is bound by the original contract, the breach of which would free people of their obligation to obey him. As such, Locke’s Social Contract was not unilateral like that of Hobbes but it was bilateral because sovereign was also bound by the terms of the social contract. Locke repudiated the theory of divine right of King or absolute state of Hobbes and defended limited monarchy which was the creation of a special contract between the people and the sovereign.
Rousseau (1712-1788) also supported the social contract theory of evolution of state but his views radically differred from Hobbes and Locke. According to Rousseau, the life of people in the state of nature was perfectly happy and people enjoyed their freedoms. But the necessities of self-preservation and protection of private property compelled people to enter into a contract among themselves by which they surrendered their right, not to an individual but to the community as a whole for their general good. The ruler was bound by the general will of the people. Thus, Rousseau believed that all power originally belonged and always belongs as of right to the people. Thus, this can create governments and also overthrow it if it acted contrary to the wishes of the people. As such, Rousseau supported the French Revolution of 1789, and wrote his ‘social contract’ in 1762.
The contract theory propounded by these three jurists has been criticised being the result of purely speculative reasoning. The three jurists were not unanimous about the actual condition of men in primary society. Austin had asserted that social contract theory is historically unsound and a contract by itself can never give rise to a legal duty unless it receives the sanction of positive law. Sir Henry Maine also criticised social contract theory of the origin of the state on the ground that primitive men did not have the moral sense to attach sanctity to a promise. Moreover, in primitive society, the unit was ‘family’ and not ‘man’ and man was not free to do thing in his own way. Hence it is futile to think that there was ever any contract between them.
Jethro Brown has asserted that the Social Contract theory trimphantly slain by many generations of writers will not die and as a philosophical thesis it contains certain underlying element of truth.
At least, it is proved that progress of society has not been spontaneous and the state has evolved out of man’s conscious efforts and deliberate foresight. It is also clear that the duties of obedience and protection are reciprocal.
The concept of Contract in the development of society has played for centuries as an organic force and helped it to base its propoundations on a legal concept, though by the passage of time it was proved to be weak and a mere speculation.
Q. 9 (d). Explain critically Kelsen’s Pure Theory of Law.
Ans. Kelsen’s Pure Theory of Law- Kelsen’s view is that a theory of law should be distinguished from the law itself. Law consists of a mass of heterogenous rules and the function of a theory of law is to relate them in a logical pattern and to organize the whole field into a single unit. The theory of law must remain free from ethics, politics, sociology, history etc. A theory of law must be pure. By pure theory of law he meant that it is concerned solely with that part of knowledge that deals with law, excluding from such knowledge everything which does not belong to the subject-matter of law.
The essential foundations of Kelsen’s system has been summarized by Friedmann as follows:-
1. The object of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
2. Legal theory is science not volition. It is knowledge of what the law is not of what ought it to be.
3. The law is a normative not a natural science.
4. Legal theory is a theory of norms, and it is not concerned with the effectiveness of legal norms.
5. A theory of law is formal, a theory of the way of orderings changing contents in a specific law.
6. The relation of legal theory to a particular system of positive law is that of possible to actual law (Friedmann).
According to Kelsen, in every system, a hierarchy of ‘oughts’ is traceable back to some initial or fundamental, ‘ought’ from which all the others emanate. This is called by him the grundnorm or the basis or fundamental norm. It is always there in every legal system. However it may not be the same in all legal systems. The grundnorm is the initial hypothesis upon which the whole system rests. He says that a system of law cannot be grounded on two conflicting grundnorms. The grundnorm is the justification for the rest of the legal system. A grundnorm is accepted when it has secured for itself a minimum of effectiveness. This happens when a certain number of persons are willing to abide by it. The grundnorms should command a minimum of support. When a grundnorm ceases to derive a minimum of support, it ceases to be the basis of the legal order and it is replaced by some other grundnorm which ottains the support of the people such a change amounts to revolution. But Kelsen did not give any criterion as to how this minimum of effectiveness is to be measured. At this juncture, his theory ceases to be pure. The effectiveness of the grundnorm depends upon the sociological factors which are excluded by Kelsen himself.
According to Kelsen the pure theory of law is a theory of positive law. As a theory, it is exclusively concerned with the accurate definition of its subject matter. It tries to answer the question, what is the law? but not the question, what it ought to be. It is a science and not a politics or law.
In Kelsen’s view, there is no difference between private and public law, because all law emanate from the same grundnorm. The legal system is an ordering of human behaviour. The idea of duty is the essence of law, and the idea of right is only a by-product of law.
Kelsen tried to apply the pure theory to international law. His view is that the grundnorm is acceptable when it commands a minimum of support, and his theory proceeds on this basis. According to Kelsen, the grundnorm of international law is the international system.
Theory of Kelsen is criticized for the following reasons:
(1) The idea of “grundnorm” is vague and confusing.
(2) Though he called his theory a pure one but in reality law cannot be studied in isolation.
(3) Kelsen’s theory denies any demarcation between physical persons and juristic persons. The concept of person is merely a stamp in the process of concretization, e.g., totality of claims etc.
(4) Kelsen recognizes no individual right. Legal duties are the essence of law, for law is a system of “oughts” whereas legal rights are by an incident.
(5) He does not differentiate between private law and public law.
(6) Kelsen says that for proper analysis of the legal norms, one will have to go to grundnorm. By applying the test of ‘minimum effectiveness’ one has to trace out the grundnorm, one has to look at political and social facts to trace it out. This will result in adulteration of the pure theory of law and the impurity of grundnorm will affect the legal norm.
(7) Severe criticism have been levied when Kelsen applies his theory to international law. Prof. Kelsen admits himself that the pure theory of law cannot decide whether municipal law or international law is primary. Prof. Stone observes in this connection: It is difficult to see what the pure theory of law can contribute to a system which it assumes to be law, but which it derives from a basic norm which it cannot find.
Kelsen’s theory is based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of political ideology and social needs.
Kelsen has said that the sanctions of international law are war and reprisals. But this proposition is not correct. International law has not completely outlawed wars as an instrument of national policy. C.K. Allen comments: “Without the examination not only of law, but of the implications of law as a function of society, the ‘pure’ essence distilled by the jurist is a colourless, tasteless and unnutritious fluid which soon evaporates.”
Despite these shortcomings, Kelsen’s contribution to legal theory cannot be ignored. His main contribution lies in that he attempted to break away with the traditional natural law theory on the one hand and legal positivism on the other. He asserted that legal knowledge is free from foreign elements, such as ethics, sociology, psychology etc. His normative theory separates law from morality on the one hand and law and ‘fact’ on the other. Kelsen refused to separate law from the State and held that law is “the will of the State”.
Q. 10. Discuss ‘grundnorm’ theory of law.
OR
Critically examine Kelson’s Pure Theory of Law. How far has he been able to keep the ‘grundnorm’ pure?
Ans. Hans Kelsen (1881-1973) may be described as a jurist who revived original analytical legal thought in the 20th Century through his pure theory of law. Kelson insisted on separation of law from politics, sociology, metaphysics and other extra-legal disciplines. Like Austin Kelson divested morality, idealism and ethical elements from law and tried to create a ‘pure’ science of law devoid of all moral or socialogical considerations.
Kelsen’s theory of pure science of law which is also known as theory of interpretation was a reaction against vicious ideology which was corrupting the legal theory. Kelson named his theory as ‘pure science of law’ because science to be called rational must stand in a two-fold relation to the object, viz, it determines the conception of the object and establishes its reality. The former is theoretical while latter is practical. Kelson claimed that his pure theory was applicable to all places and at all times. It must be free from ethics, politics, sociology, history etc without denying the value of all these branches of knowledge. He only wanted that law should be clear of them without their mixture in it.
Kelsen described law as a normative science as distinguished from natural sciences which are based on cause and effect such as law of gravitation or law of fire. The laws of natural sciences are capable of being accurately described, determined and discovered in the form of ‘is’ which is an essential characteristic of all natural sciences. But the science of law is knowledge of what law ‘ought’ to be. It is the ‘ought’ character, which provides normative character to law. As illustration it can be said that if one commits theft, then one ought to be punished. Kelson has also given ‘sanction’ a prime place in his scheme of legal theory but he has named is as ‘norm’. Thus, according to Kelsen “law” is a primary norm which stipulates sanction.
According to Kelsen “norm (sanction) is a rule forbidding or prescribing a certain behaviour”. Kelsen opines that legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprise legal order.
Grundnorm
Kelsen considers Legal Science as a Pyramid of Norms with grundnorm (basic norm) at the apex. Kelson’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity and strength from the basic norm which is termed as ‘grundnorm’. Thus, the grundnorm or basic norm determines the content and gives validity to other norms derived from it.
Kelsen has no answer to the question as to where from the grundnorm or basic norm derives its validity. He considers it to be meta-legal question in which jurists need not intrude. Julius Stone on this question has commented that just as Austin’s sovereign in a particular society is a mere starting point for his legal theory, so also basic norm has to be accepted as a hypothetical starting point or fiction which gives a legal system coherence and a systematic form. Thus, while all norms derive their validity from the basic norm (grundnorm), the validity of basic norm cannot be objectively tested, instead, it has got to be presumed or pre- supposed. Kelson, however considers grundnorm a fiction rather than a hypothesis.
Kelsen recognised that grununo need not be same in every legal order (state) but it must be necessarily there. It may be the form of a written Constitution or the will of the Dictator.
Kelsen considers legal science as a Pyramid of norms with grundnorm (basic norm) at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The basic norm (grundnorm) remains independent of any other norm, being at the apex. The process of one norm deriving its power from the norm immediately superior to it until it reaches the grundnorm, has been termed by Kelson ay “Concretisation’ of the legal system. Thus the system of norms proceed, from downwards to upwards and finally it closes at the grundnorm at the top. The grundnorm is taken for granted as a norm creating organ and the creation of it cannot be demonstrated scientifically nor it is required to be validated by any other norm.
For example a statute or law is valid because it derives its legal authority from the legislative body and the legislative body in its own tun derives its authority from a norm in the Constitution. As to the question from where does the Constitution derives its validity there is no answer and, therefore, it is the grundnorm according to Kelsen’s conception of pure theory of law.
In Kelsen’s view, the basic norm is the result of social, economic political and other conditions and it is supposed to be valid by itself.
The legal order as conceived by Kelsen receives its unity from the fac that all manifold norms of which the legal system is composed can be traced back to a final source. This final source is the basic norm or the ‘grundnorm’ which he defined as “the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity”.
Kelsen described law as a technique of social organisation. It is not an end but is a specified means as an operation of compulsion to which ther adheres no political or ethical value. According to Kelsen “Law is not an eternal sacred order but a compromise of battling social forces” and therefore “the Concept of Law has no moral connotations whatsoever”.
As a necessary consequences of the extra-legal origin of the grundnorm, it loses its applicability when a new Government comes into power overthrowing the existing Government by revolution.
In that event, the Courts are confronted with the problem whether to continue applying the ‘Law’ of the overthrown regime even though they are no longer effective or to apply the law introduced by the new revolutionary government which are lacking legitimacy. There is no unanimity of judicial opinion in this regard.
It can be stated that this being a matter beyond the purview of jurisprudence, has to be decided according to political exigencies of the situation and general acceptance by the people.
Salient features of Kelsen’s theory of Pure Science of Law-
1. The theory is aimed at reducing chaos and confusion created by the supporters of natural law philosophy.
2. Pure theory of law deals with the knowledge of what law is and is not concerned about what law ought to be.
3. The theory considers law as a normative science and not a natural science.
4. It is a theory of norms not so much concerned with the effectiveness of the legal norm.
5. It is formal theory confined to a particular system of positive law as actually in operation.
Implication of Kelsen’s pure theory– It covers a wide spectrum of legal concepts. Such as State, sovereignty, private and public law, legal personality, right and duty etc.
According to Kelsen, Law and State are not different, but they are in fact one and the same. Likewise, there is no difference between public and private law. Kelsen does not also derive any legal difference between natural and juristic personality. For him all legal personality is artificial and derives its validity from grundnorm. He does not believe in the existence of individual rights and asserts that ‘legal duties’ are the essence of law. In his view legal right is merely the duty as viewed by the person entitled to require its fulfilment.
Criticism
1. Pure theory of law is without any sociological foundation as it excludes all references of social facts and felt needs of the society.
2. Kelsen’s assertion that all the norms except the grundnorm are pure, has no legal basis.
3. Theory is based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of the political ideology and social needs. He does not consider justice and morality as essential attributes of law.
4. It provides no solution for ideological differences. Rejection of justice as mere emotion is not true. Moreover, law cannot be completely divorced from ethics and morality which gives it a honourable place in the society.
5. Kelsen’s account of legal dynamics is inadequate, it ignores the purpose of law by neglecting competing interests which may not be necessarily be purely legal.
6. It suffers from methodological shortcomings. It ignores the fact that the action of the authority enforcing law to be valid, has to be in accordance with the procedure and, therefore, it becomes necessary to probe into the content of law. Mere use of force would not validate a law. Kelsen’s normative system being one-sided remains indifferent to the content of norms.
7. Kelsen maintained that grundnorm imparts validity as long as the total Legal order remains effective”. But this does not hold good when judiciary of a State refuses to accept the legality of usurper who assumed power by force and is deposed sooner or latter because of his legal order cannot be said to be effective. In Jilani v. Government of Punjab, Pak LD (1972) SC 139, the Supreme Court of Pakistan declared the usurpers of State power as illegal as they were unlawful ab initio notwithstanding effectiveness.
Prof. Laski has observed Kelsen’s pure theory of pure science of law as unpracticable as it is not desirable to free law from politics and ideology. It is wholly formal which attempts to create an ‘algebra of law’, His theory is over-reaction to the modern theories of jurisprudence.
Q. 11. Explain Salmond’s definition of law. Does it amend Austin’s definition of law?
Ans. Salmond’s definition of law- Salmond defines law as “body of principles recognized and applied by the state in the administration of justice. In other words, the law consists of the rules recognized and acted on by court of justice.”
The above definition emphasizes two things:-
(1) Emphasis upon courts- According to Salmond, to know the nature of law we should go to the courts of justice and not to the sovereign. It is the ruling of the court and not command of the sovereign that has binding force as law. He finds the definition of Austin as defective for making law dependent upon the command of sovereign: (a) All laws are not commands of the sovereign or Acts of Legislature. Custom, precedents and equity also result in law. (b) Again, all commands of the sovereign or Acts of the Legislature do not amount to law as they may not make any legal principle. Salmond, defines law as rules recognized and acted on by courts of justice. He, thus, remedies both these defects because according to Salmond’s definition (a) all laws, from whatever source got or recognized and acted on by courts of justice, and (b) courts do not recognize any rules which do not amount to law.
In the words of Salmond himself; “Law is law, not because the courts are under any legal obligation to observe it, but because they do in fact observe it. No rule that is not thus in fact observed in accordance with the established practice of the courts is a rule of law, and conversely, every rule that is thus in fact observed amounts to a rule of law. It is to the court of justice, and to them alone that we must have recourse if we wish to find out what rules are rules of law and what are not.”
Again, the courts may misinterpret a statute. In the words of Prof. Gray. The law of a great nation means the opinion of half-a-dozen old gentlemen, for if those half-a-dozen old gentlemen form the highest judicial tribunal of a country, then no rule or principle which they refuse to follow is law in that country.”
According to Dr. Salmond “In the last resort, the authority of the law over the courts themselves has its source merely in the moral obligation of the judges to observe their judicial oaths and fulfil their appointed functions by administering justice according to law.
(2) Purpose of law- Austin’s ignoring purpose of law in his definition of law is another defect which Salmond has remedied. Justice being the end of law, the term ‘law’ should be defined with reference to the administration of justice. In the words of Salmond, “If rules of law are from one point of view commands issued by the state to its subjects from another standpoint they appear as principles of right and wrong so far as recognized and enforced by state in the exercise of its essential function of administering justice. Law is not right alone or might alone, but the perfect union of the two. It is justice speaking to men by the voice of the state.”
Salmond’s definition comes near to that of Prof. Gray according to whom, “The law of the State or of any organized body of men is composed of rule which the courts, that is, the judicial organs of that body lay down for the determination of legal rights and duties.”
Criticism
Salmond’s definition of law may be criticized as below:-
(1) Salmond says that law is “body of principles recognized and applied by the state”. Thus the rule of mathematics that three + three is equal to six too shall be accepted as law, because the court in administration of justice cannot ignore it. But this mathematical rule is not law.
(2) A law is law if it is recognized by the court. If Salmond’s definition is accepted, then international law loses that character to an extent. Salmond’s definition is primarily meant to be applicable to civil law enforced judicially.
(3) Law comes before administration of justice. Therefore, Salmond was not justified in saying that “Law consists of the rules recognized and acted on by courts of justice” because courts of justice themselves are meant for application and enforcement of law. The direct purpose for which after all judges act is, after all, the application of law. A definition of law starting from their action would, therefore, be somewhat like the definition of a motor-car as a vehicle driven by a chauffeur. What should we think of a definition of a medicine as a drug prescribed by a doctor?
(4) By giving undue importance to the law courts, Salmond overlooks the fact that, though judge-made law comes into existence after it is acted upon by law courts, Statute law is law prior to its recognition by law courts. Statute law is law not because courts recognize it. On the other hand, courts recognize it because it is law. Hence Salmond’s definition is mainly applicable to the common law of England which is a Judge-made law.
Salmond himself replies to the crucism by saying that so long as the Legislature and courts work in harmony, it does not make my difference whether statute law is law because the courts recognise it or courts recognise it because it is law. Both the statements are two aspects of the same truth.
(5) Pound has also criticized the undue emphasis laid by Salmond on the courts, thos reducing law to a mass of isolated decisions.
(6) Inclusion of the word “Justice” as purpose of law has invited no less criticism for Salmond. According to Paton, “the pursuit of justice is not the only purpose of law the law of any period serves many ends and those ends will vary as the decades roll by. To seek for one term which may be placed in a definition as the only purpose of law leads to dogmatism. The end that seems most nearly universal is that of securing dogmatism order, but this alone is not an adequate prescription indeed, Kelsen regards it is a pleonasm since law itself is the order of which we speak.”
(7) In case of need of modification in law, if it is left to court’s auspices, it would be rectified when by chance a case regarding that subject matter comes before the court and this may take its own time defeating the need and purposes of the modification. However, a legislative effort may be handy and speedy for removing the defect.
Conclusion- Inspite of these criticisms, the fact remains that Salmond has remedied the defects of Austin’s theory by laying emphasis on law courts instead of sovereign and by giving to the purpose of law a significant place in his definition.
The weakness of Austin’s definition of law encouraged certain writers to make improvements in it. The most remarkable among them was Salmond. While nullifying Austin’s definition, Salmond kept in view all that law is not made by the legislature and a large portion of it is made by courts. According to Salmond all types of laws must be recognized by the courts and therefore, his logic is that in order to ascertain the true nature of law, one should go to the courts and not the legislatures.
Q. 12 (a). Who said, “Law is a dictate of reason”. Explain the theory of law underlying the above observation.
OR
Write short notes on Thomas Acquinas’ theory of law.
“Law is the dictate of reason”. Comment.
Ans. Thomas Acquinas theory of law- Among the theologicians of the medieval period, the name of Thomas Acquinas (1225-1274) deserves a special mention. He is considered to be the representative of the natural law theory of his age. In his view, social organisation and State are natural phenomenon. St. Acquinas pointed out that man can control his own destiny to a considerable extent but he is subject to certain basic impulses such as impulse of self-preservation, reproduction of his species, bringing up children etc. for improving his future and attainment of perfection. He defined law as “an ordinance of reason for the coinmon good made by him who has the care of the community and promulgated through reason”. He maintained that, “the primary percept of law is that good should be done and pursued and an evil be avoided”. Man’s activities are directed to ensure his survival, continuity and perfection. He must do things to achieve them and doing anything against these ends shall be morally wrong.
St. Thomas Acquinas gave a fourfold classification of law, namely, (1) Law of God or external law, (2) Natural law which is revealed through “reason”, (3) Divine law or the law of Scriptures, (4) Human laws which we now called ‘Positive law’.
Like his predecessors, St. Acquinas agreed that natural law emanates from ‘reason’ and is applied by human beings to govern their affairs and relations. He opined that positive law should be accepted only to the extent to which it is compatible with natural law or external law. He regarded Church as the authority to interpret divine law. Thus his approach to natural law was empirical because his conclusions were drawn from the study of human nature. He considered ‘reason’ as the sole repository of social life of man. St. Acquinas believed in the supermacy of law because it is a means to attain common good.
Q. 12 (b). Give a brief account of the historical development of Natural law school.
OR
Trace the historical development of Natural law school.
Ans. Historical Development of Natural law school-The evolution and development of natural law theory has been through various stages which may broadly be studied under the following heads :-
1. Ancient Period,
2. Medieval Period,
3. The Period of Renaissance and
4. Modern Period.
1. Ancient Period, Heraclitus (530-470 BC)-The concept of natural law was developed by Greek philosophers around 4th century B.C. Heraclitus (530-470 BC) was the first Greek philosopher who pointed out the three main characteristic features of law of nature (i) destiny (ii) order and (iii) reason. According to him, reason is one of the essential elements of Natural Law.
Socrates (470-399 B.C)- The name of Socrates occupies a prominent place among the Stoic philosophers of the ancient times. He was a great admirer of truth and moral values. He argued that like natural physical law, there is a natural moral law. It is because of this human insight that a man has the capacity to distinguish between good and bad and is able to appreciate the moral values. Thus, according to Socrates ‘virtue is knowledge’ and ‘whatever is not virtuous is sin’. The reasonability of a particular law is judged by human insight and only those laws would be deemed proper which are in accordance with the principles of law of nature and are supported by human reasoning.
Plato (427-347 B.C.)- Socrates disciple Plato carried further the natural law philosophy through his concept of ideal State (Republic). According to him, justice lies in ordering man’s life through reason and wisdom and motivating him to control his passion and desires. According to Plato, ‘the laws of states are a pale shadow of an absolute idea of perfect laws against which man-made laws may be measured’.
Aristotle (384-322 B.C.)- According to Aristotle, man is a part of nature in two ways. Firstly, he is a creation of God. And secondly, he possesses insight and reason which enable him to articulate his actions. He defined natural law as reason unaffected by desires. It embodies basic principles of justice and morality which have universal validity independently of time and place. But Aristotle did not categorically state that the positive law which is contrary to principles of natural law is invalid. Positive law should try to incorporate within it the five principles of natural law but it should be obeyed even if it is devoid of the standard principles of natural law. Aristotle suggested that the ideals of natural law have emanated from the human consciousness and not from human mind and, therefore, they are more valuable than the positive law which is an outcome of the human mind. Thus, the three main exponents of Natural law: Socrates, Plato and Aristotle during the Ancient times regarding the development of Natural law covering 500 years BC explain the contributions made by them as narrated above.
Natural law in Roman system- The Romans did not confine their study of Natural law theory merely to theoretical discussion but carried it further to give it a practical shape by transforming their rigid legal system into cosmopolitan living law. The natural law philosophy found an expression in the Roman legal system through division of Roman law into three distinct divisions namely, jus civile, jus gentium, and jus naturale.
The civil law called jus civile was applicable only to Roman citizens and the law which governed Roman citizens as well as the foreigners was known as jus gentium. It consisted of the universal legal principles which conformed to natural law or law of reason. Later, both these were merged to be known as jus naturale as Roman citizenship was extended to every one except a few categories of persons.
The Roman lawyers of that time did not think it necessary to enter into the controversy of conflict between positive law and natural law though there was a general feeling that natural law being based on reason and conscience was superior to positive law, and, therefore, in case of a conflict between the two, the latter should be disregarded.
Cicero was a great Roman lawyer, statesman and orator. According to him, “true law is right reason in agreement with nature; it is of universal application, unchanging and everlasting …… and there would not be different laws at Rome and at Athens, but one eternal and unchangeable law will be valid for all nations at all times.” He believed in the universal applicability of natural law based on the general morality of the human society.
2. Medieval Period (12th century to mid-14th century in European history)-This period was dominated by the ecclesiastical doctrines which the Christian Fathers propagated for establishing the superiority of church over the state. They used Natural law theory to propagate Christianity and to establish a new legal order and political ideology based on morals and theology. The Christian saints especially Ambrose. St. Augustine and Gregory propagated a view that Divine law was superior to all other laws. According to them, all laws are either divine or human. Divine laws are based on nature while human laws are based on custom. It is the divine nature of the natural law which makes it binding overruling all other laws.
The main tenets of the Natural law theory of the medieval period may be stated as follows :-
1. The supporters of the theory believed that the institutions of slavery, property, state etc. represented the evil desires because they are not creation of nature, nevertheless they are necessary for preventing or limiting the vicious tendencies of men. The existence of state and society is essential for the development of morals and ethical values in man. For enforcement of law, morals, customs, traditions, rules, regulations etc. there must be some organised society where source of law and its obedience may be ensured. In primitive societies the custom with its sanction played the same role. Cicero and Seneca supported this view.
2. Law is the greatest binding force both for those who govern and the governed. Thus, the Natural law theory accepted the supremacy of law.
3. The greatest problem before the medieval legal thinkers and philosophers was the correct interpretation of law. They believed in two facets of the human activities, namely, Worldly and Godly. They are radically different from one another and there arises no question of conflict or clash between the two States, i.e. ruler is supreme in the field of worldly activities whereas Pope is held supreme authority in the realm of Godly activities.
4. As to the question about the exact source of legal authority in a developed society the majority view was that state and law were the gift of the people who agreed to subdue themselves to their authority.
3. The Period of Renaissance-The period of renaissance in the history of development of natural law may also be called the modern classical era which is marked by nationalism and emergence of new ideas in different fields of knowledge. The natural law theories propounded by Grotius, Locke and Rousseau held that ‘Social contract’ was the basis of the society.
Hugo Grotius (1583-1645) Grotius believed that howsoever bad a ruler may be, it is the duty of the subjects to obey him. There is apparent inconsistency in the natural law propounded by Grotius because on the one hand, he says the ruler is bound by the natural law, and on the other hand, he contended that in no case the ruler should be disobeyed. It appears that Grotius main concern was stability of political order and maintenance of international peace which was the need of the time.
Grotius firmly believed that man by nature is peace loving and desires to live according to dictates of reason. He, therefore, treated natural law as immutable which cannot be changed by God himself. According to him, natural law is based on the nature of man and his urge to live in peaceful society. He considered divine law as the grandmother, natural law the parent and positive law as the child. Because of peace loving, based on reason and proximate to nature, the law propounded by Grotius was immutable and pereninal, true and of prototype nature, i.e. always the same. He advocated, as such, applicability of laws at international levels and is regarded as Father of international law. He propagated equality of States and their freedom to regulate internal as well as external relations.
Thomas Hobbes (1588-1679)-Thomas Hobbes made use of natural law to justify the absolute authority of the ruler by endowing him power to protect his subjects. Thomas Hobbes propounded the theory of social contract relating to evolution of the state. According to Hobbes, prior to ‘social contract’ man lived in chaotic condition of constant fear. The life in the state of nature was ‘solitary, poor, nasty, brutish and short’. Therefore, in order to secure self-protection and avoid misery and pain, men voluntarily entered into contract and surrendered their freedom to some mightiest authority who could protect their lives and property. This led to the emergence of the institution of the ‘ruler ‘which later assumed the form of the state. Thus, Hobbes was a supporter of absolute power of the ruler and subjects had no rights against the sovereign who had to be obeyed, howsoever tyrannical or unworthy he might be. In his famous work, Leviathan, he observed that law is dependent upon the sanction of the sovereign. In his opinion, ‘Governments without sword are but words and of no strength to secure a man at all. Austin’s imperative theory of law is essentially an outcome of Hobbe’s doctrine of absolutism of sovereign.
John Locke (1632-1704)- John Locke came out with a new interpretation of the social contract rejecting Hobbes concept of state of nature. He stated that the life in state of nature was not as miserable and brutish as depicted by Hobbes, instead it was reasonably good and enjoyable except that property was insecure. In order to ensure proper protection of property, man entered into the social contract surrendering only a part of his rights, and not all the rights as contemplated by Hobbession theory. Thus, the natural rights of man such as right to life, liberty and property remained with him and only the right to maintain order and to enforce the law of nature was surrendered by him. The purpose of the state and law was to uphold and protect the natural rights of men. So long as the state fulfils this purpose, its laws were valid and binding but when it ceases to do so, the people have a right to revolt against the government and overthrow it.
Jean Rousseau (1712-1778)- Jean Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated by Hobbes and Locke, but it is merely a hypothetical conception. Prior to the socalled ‘social contract’, the life was happy and there was equality among men. People united to preserve their rights of freedom and equality and for this purpose they surrendered their rights not to a single individual, i.e., sovereign, but to the community as a whole, which Rousseau termed as ‘general will’. Therefore, state and law are the product of general will. For Rousseau, state, law, sovereignty, general will etc. are interchangeable terms. His theory is considered to be the forerunner of the modern jurisprudential thought and legal theory.
Immanual Kant (1724-1804)- Kant’s theory of Categorical Imperative was derived from Rousseau’s Theory of General Will. It embodies two principles:
1. The categorical imperative expects a man to act in such a way that he is guided by dictates of his own conscience. Thus, it is nothing more than a human right of self-determination.
2. The second principle expounded by Kant was the doctrine of ‘autonomy of the will’, which means an action emanating from reason but it does not mean the freedom to do as one pleases.
In essence, Kant held that “an action is right only if it co-exists with each and every man’s free will according to the universal law”. This he called as “The Principle of Innate Right’. The sole function of the state according to him is to ensure observance of law and its proper implementation.
4. Modern Period- Dr. Allen has rightly pointed out, “The new natural law is value loaded, value oriented and value conscious and is relativistic and not absolute, changing and varying and not permanent and everlasting in character. It represents a revolt against the determination of Historical school on the one hand and artificial finality of the Analytical school on the other hand. The main exponents of the new revived natural law were Rudolf Stammler, Prof. Rawls, Kohler and others.
Rudolf Stammler (1866-1936)- Stammler defined law “as species of will, others-regarding, self authoritative and inviolable”. For him, a just law was the highest expression of man’s social life and aims at preservation of freedom of individuals. According to him, the two fundamental principles necessary for a just law were (1) principle of respect, and (2) the principle of community participation. With a view to distinguishing the new revived natural law from the old one, he called the former as ‘natural law with variable content. According to him, law of nature means just law which harmonizes the purposes in the society. The purpose of law is not to protect the will of one but to unify the purpose of all. Individual’s expectations are harmonised with the society’s purpose of peaceful continuity adjusting the changes of time and needs it develops.
Prof. Rawls Professor Rawls made significant contribution to the revival of natural law in the twentieth century. He propounded two basic principles of justice, namely, (i) equality of right to securing generalized wants including basic liberties, opportunities, power and minimum means of subsistence and (ii) social and economic inequalities should be arranged so as to ensure maximum benefit to the community as a whole.
Kohler- As a neo-Hegelian, Kohler defined law “as the standard of conduct which in consequence of the inner impulse that urges upon men towards a reasonable form of life, emanates from the whole, and is forced upon the individual”. He says that there is no eternal law and the law shapes itself as the society advances morally and culturaly in course of evolution. He tried to free the nineteenth century natural law from the rigid and a priori approach and attempted to make it relativistic, adapting itself to the changing norms of the society.
Lon Luvois Fuller (1902-1978)- Professor Fuller is also considered as one of the leading supporters of the modern natural law philosophy.
According to Fuller, Law is a purposive system, the purpose being to subject human conduct to the control and guidance of legal rules. He thinks that every workable legal system must comply with eight requirements in order to make the law really effective. These requirements are-
1. There should be definite rules.
2. These rules must be well publicised.
3. There should be no abuse of retrospective legislation.
4. The rules must be easily understandable.
5. The rules must be practicable and not require a person to do something which is beyond his power or capacity.
6. The rules must not be contradictory or inconsistent with any other existing law.
7. The rules should not be subjected to frequent changes.
8. There must be congruence between the rules promulgated and their actual administration.
According to Fuller, fulfilment of all these requirements is necessary for establishing rule of law in society.
Q. 13 (a). What is Realism? Discuss the views of some prominent Realist Jurists.
OR
What is Realism? Is it a movement?
Ans. Realism is a movement. It was around 1930’s that some American jurists notably Holmes Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it actually works and functions. They were called Realists and their legal approach has been named as realist school of jurisprudence. Roscoe Pound has defined realism as, “Fidelity to nature, accurate recording of things as they are, as contrasted with things as they are imagined to be, or wished to be or as one feels they ought to be”. In other words, realism is anti-thesis of idealism. Some jurists refuse to accept realism as a “school of jurisprudence” and hold that at the best it may be called a branch of sociological jurisprudence. It may preferably be termed as a method of scientific approaches to law, realists uphold only judge-made law, is genuine law and they do not give any importance to laws enacted by legislatures. Realists believe that ‘certainty of law is a myth. Elaborating the point further, Jerome Frank has stated, “law is what the court has decided in respect of any particular set of facts, prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the court so decides by its judicial pronouncement”.
It must be stated that realist movement in United States owes its origin to pragmatic approaches to law in early decades of 20th century. Pragmatic legal thinkers denied to accept law as an abstract conception and tried to base it on actual facts and actions. This inspired jurists to concentrate more on courts to know the actual working of law and determine those factors which influence court’s decision.
Basic Features. Realism denounces traditional legal rules and concepts and concentrate more on what the courts actually do in reaching the final decision in the case before them. In strict sense of term, realists define law as generalised prediction of what the courts will do. The main characteristic features of realist jurisprudence as stated by Goodhart are as follows:-
(1) The realists believe that there can be no definiteness above law as its predictability depends upon the set of facts which are before the court for decision.
(2) They do not support the formal, logical and conceptual approach to law because the court while deciding a case reaches its decision on ’emotive’ rather than (logical) grounds.
(3) They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behaviour and convictions of the lawyers and judges.
(4) Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law.
(5) The realists, school prefers to evaluate any part of law in terms of its effects.
According to Llewellyn, there is no Realist school as such, it is only a movement in thought and work about law. It presupposes that law is intimately connected with the society and as the society changes faster than law, there can never be certainty about law. There is no place for idealism in law and therefore law as it ‘is’ must be completely divorced from law as it ‘ought to be’.
Frank explained his views about realistic approach to jurisprudence in his book entitled, Law and the Modern Mind. He exploded the myth that law is continuous, uniform, certain and invariable and therefore, asserted that the judges do not make law but instead, they discover it. According to him, the individual decesion of the judge is the law par excellent. He reiterated that law consists of decisions and the personal convictions, likes and dislikes, emotions. The temperament of the Judge has an important bearing on the mechanism of law. Thus, Frank ‘fact-finding’ by the Court as the central theme of his realism in which the personality of the judge and his past experience play a dominate role in moulding the law and giving it a concrete shape.
Contribution of Realist School to jurisprudence- The main contribution of Realists to jurisprudence lies in the fact that they have approached law in a positive spirit and demonstrated the futility of theoretical concepts of justice and natural law. Opposing positivist’s view, the realist shcool hold that law is uncertain and indeterminable in nature, therefore, certainty of law is a myth. As Frank Jerome rightly pointed out, “Realist School has shought to liberate the judges from the enslavement of unduly rigid legal concepts and exorted them to take into consideration the ground of realities of social facts while deciding the cases”. According to Freedmann, realist movement is an ‘attempt to rationalise and modernise the law both administration of law and the material for legislative change, by utilising scientific method and taking into account the factual realities of social life. For Julius Stone, “Realist movement is a gloss on the sociological approach to jurisprudence”. Thus, he considers Realist school merely a branch of sociological jurisprudence and a method of scientific and rational approach to law. Expressing similar view, Dr. Allen thinks that Realist school is an imrpovised form of the sociological jurisprudence. [Allen, C.K.: Law in the making (1964) p. 48]
Criticism against Realism- The realist approach to jurisprudence has evoked criticism from many quarters. The critics allege that the exponents of Realist school have compeletely overlooked the importance of rules and legal principles and treated law as an assemblage of unconnected court decisions. Their perception of law rests upon the subjective fantacies and life-experience of the judge who is deciding the case or dispute. Therefore, there cannot be certainty and definiteness about the law. This is indeed overestimating. The role of judge, i.e., court in formation of the laws.