Category Archives: Jurisprudence – I


What were the main causes of the origin of “Realist School” ? Write a Note on Modern Realism of America. (2016) -20Marks

AMERICAN REALIST SCHOOL OF JURISPRUDENCE

Some jurists refuse to accept the realist school as a separate school of jurisprudence. American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society. Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law. A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.

ORIGIN AND HISTORY OF THE AMERICAN REALIST SCHOOL:
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States of America. American Legal Realism is often remembered for its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics.

The realist school has been divided into two parts:
1 Scandinavian Realism
2 American Realism
Both are hostile to formalism that treats law as a lifeless phenomenon. Both adopt radical empirical methods that seek to explain law in terms of observable behavior (examining cause and effect) and both are antagonistic towards metaphysics and values. Scandinavian Realism is existed in Europe, Sweden, Norway, England and Scandinavian countries. This school of realism was supported by Axel Hagerstrom, A.V. Lundstedt and Karl Olivecrona.
Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes[2]. Oliver Holmes has been described as the intellectual inspiration[3] and even the spiritual father[4] of the American realist movement. Holmes was skeptical of the ability of general rules to provide the solution to particular cases and readily gave credence to the role of extra-legal factors in judicial decision-making. Holmes gave the first and classic exposition of the courtfocused approach in 1897, sowing the seeds for realism, in a paper called The Path of the Law.

AMERICAN REALIST MOVEMENT:
Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’.[5] The realist movement began in the 19th century in America and gained force during the administration of President Franklin D. Roosevelt. The realist movement in United States represents the latest branch of sociological jurisprudence. Which concentrates on the decisions of law courts. Sometime it is called the ‘left wing of the functional school.’ This movement named as realist because this approach studies law, as it is in actual working and its effects. Realism was a movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to accept realism as a separate school of jurisprudence. According to Llewellyn, “there is no realist school as such, it is only a movement in thought and work about law.” Realism is the anti-thesis of idealism. American realism is a combination of the analytical positivism and sociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological approach.


certainty of law is a Legal myth. Discuss in Brief. (2016)

AMERICAN REALIST SCHOOL OF JURISPRUDENCE
American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society. Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law. A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.

Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It presupposes that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. 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.”[1] The judges’ decisions are the outcome of his entire life history.”
MEANING AND DEFINITION OF THE AMERICAN REALISM:
The insights of legal realism are mainly negative, revealing a deep skepticism about the model of rules, about any general and abstract theory of the law. Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’. American Legal Realism expressed a set of sometimes self-contradictory tendencies rather than a clear body of tenets or a rigorous set of methodologies or propositions about legal theory. According to Roscoe Pound, “Realism is the 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”. According to Friedman, “Realist school prefers to evaluate any part of law in terms of its effects”.


Marxist Theory of Law (2017) -10Marks

Marxist Theory of Law
Karl marx- 1818-1883- Fredreich Engels- Both of them were the founders of the greatest social and political movement which began in 19th century and flourished in 20th century as a political philosophy in Eastern Europe which is the erstwhile Soviet Union and influenced all the decolonized colonies of the world and is practised in China’s Political Philosophy. Marx’s view of state and law was co-terminus with the understanding of society and social process. Marx’s originality of thought lies in the fact that he synthesized almost entire philosophical thought from Aristotle to Hegel. The sociological understanding of the society led Marx to pronounce that the desired system would be a Communist Society based on rational planning, cooperative production and equality of distribution and most importantly, liberated from all forms of political and bureaucratic hierarchy. Marx condemned and rejected the state and money as Bourgeois concept and the proletariat has a historical mission of emancipating the society as a whole. Law seems to be nothing than a function of economy without any independent existence. His classification of society into various classesThe capitalists The Wage Labourers The land owners This conflict will eventually have to be resolved. The resolution of the conflict will take the shape of a Proletarian revolution. Once this revolution takes place, it will seize the power of the state and transform the means of production in the first instance into the state property. The earlier state of exploitation and representative of class antagonism will be replaced by a state truly representative of society as a whole which means taking possession of means of production in the name of society is at the same time its last independent act of a state. The interference of the state in social relation becomes superfluous in one’s sphere after another and then ceases off itself. The government of persons is replaced by administration of things and directs the process of production. However, the Proletarian revolution in order to reach the stage of Communism shall have to pass through various stages. 1. Establishment of a Proletarian Dictatorship which is essential to convert the capitalist modes of production to the Proletariat mode of production. 2. Stage of Nationalization of the property and all the capital modes of production. 3. Stage of Socialism as the property is in common ownership, the society at large shall be responsible for the production and distribution of goods. As the production of goods in common ownership, the distribution of commodities will have to follow “from each according to his ability to each according to his needs”. Inequalities will remain and hence, the need to distribute the goods is inevitable. The ultimate stage is that of Communism and this state he imagined in his work called “Critique of Gotha Program-1875”. Communist society will have to develop and emerge from capitalist society and in respect will carry with it some marks of capitalist society. Accordingly, the individual producer recedes back from the society what he gave to it by way of labour. If a labourer has worked for fixed hours of a day, he is entitled to the amount of wages for which he has worked. He receives a certificate from society that he has furnished such and such amount of labour and with this certificate he draws from the social stock of means of consumption as much as costs same amount of labour. Higher Communist State- Concept of power and labour gets vanished. After production force increases, then there will be all round development of individual. This we get from “Communist Manifesto”. In higher form of communist state after enslaving subordination of the individual to the division of labour and anti-thesis between mental and physical labour has vanished after labour has become not only a means of life but life’s prime want, after the productive forces have also increased with the all-round development of individual. And all the springs of the co-operative wealth flows more abundantly. The concept of state is a super structure in a capitalist state to organize and uphold class oppression. The bureaucracy and the executive in a state are for the managing common class and struggle waged by the society against each other. Law is not based on will but once the bourgeois state is overthrown by a proletariat, the proletariat state comes into existence. This state is representative of social will of all the classes. The nexus between safeguarding the private property by a capitalist state is replaced by a proletariat state which has nationalized all the private property. However, state and statecraft remains important and integral in the proletarian society. E. Pashukanis- 1891-1937- he tried to remove the gloss on law and Marxism as experimented by the Marxist state. He believed that proletariat law practised in erstwhile Soviet Union needs alternative general concepts to reinforce Marxist theory of law. Power is collective will as the rule of law is realized in the bourgeois society to the extent that this society represents a market.


Discuss the main feature of “Sociological School” of Jurisprudence. (2016) -10MARKS

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE :

Jurists belonging to the sociological school of thought are concerned more with the working of law rather than its abstract content. Their principal premise is that the law must be studied in action & not in textbooks. They are concerned with the study of law in relation to society. They concentrate on actual social circumstances which give rise to legal institutions. They insist that the legal order is a phase of social control & that it can’t be understood unless taken in its whole setting among social phenomena.

Sociological Approach – Nature and Meaning
Sociological approach towards study of law was a reaction and revolt against the analytical and historical school both of which regarded law as self – contained system – the former deriving validity of law from the sovereign – the law giver and the latter from the slow and silently flowing historical and cultural processes and forces. The sociological approach considers law as a social fact or reality to shape, mould and change society to sub-serve its needs, expectations and goals through law. The interrelationship between law and society and the study of community and of social phenomena, of group or individual interests and their realization ans fulfillment through law is the paramount concern of law. Of – course! The Sociological approach to the study of law is of recent origin. The other Schools have been more concerned with the nature of law and its source rather than its actual working, functioning and social ends which law strives to subserve. All the jurists who define law in relation to society in terms of ends which law serves and the interests which the law satisfies and the common good which the law seeks to achieve – thereby make law as an instrument of social control and social change are grouped together as jurists belonging to Sociological School of Jurisprudence.

factors responsible for the emergence of this school are:

(i) Mental bankruptcy of analytical approach to meet the social demands of modern society;

(ii) Conflicts b/w individual interests & social interests & the need to reconcile them;

(iii) Inter-connection b/w law and society.

(iv) Works of the earliest pioneers of the new interests in society, i.e., Bentham, Renner, Weber, etc.

The following are the main characteristics of this school:

(i) Sociological jurists r concerned more with the working of the law of the legal order & legal precepts rather than its nature.

(ii) According to Analytical jurists, law is made consciously; Historical jurists, it is something found; but the Sociological jurists regard law as social institution.

(iii) Sociological jurists lay stress upon the social purposes / securing social interests rather than on sanction.

(iv) Sociological jurists look on legal institutions, legal doctrines & legal precepts functionally … this is the functional view of law.

The objective of sociological source of jurisprudence is to resolve immediate problems of society with such tools – legal or extra legal and techniques which promote harmony & balance of interest of society.


Discuss in brief the Austin’s imperative theory of law.(2016) -10MARKS

1. IMPERATIVE OR AUSTIN’S THEORY OF LAW:

Austin says that law is a command which obliges a person or persons to a course of conduct. It is laid down by a political sovereign and enforceable by a sanction.

2. FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

Command.
Sovereign.
Sanction.

A. COMMAND: According to Austin: Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands: There are commands which are laws and which is not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.

B. SOVEREIGN: According to Austin, a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys, some other persons or persons.

Characteristics of Sovereign:

(i) Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power: Prof. Laski says that there are three implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power.

(iii) Indivisible Power: The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons.

(iv) Habitual obedient by People: The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society.

C. SANCTION: The term sanction is derived from Roman Law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice.

3. CRITICISM: Austin’s theory of law has been criticized on many grounds.

1. Laws before State: According to Historical School, law is prior to and independent of political authority and enforcement. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it.

2. Gunman Law: Some have criticized the positivist theory of law as a theory of gunman, as it makes no real distinction between a law and the command of a bank-robber who points his gun at the bank clerk and orders him to give him money.

3. Generality of Law: According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of the Act of the legislature may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons.

4. Promulgation: According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.

5. Law as Command: According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e.g., right to vote.

6. Existence of Personal Commander: The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense.

7. Refusal of Precedents as Laws: The bulk of the English law has been created by the decisions of the Court. To describe the judges as delegates by the positivists is misleading.

8. Sanction: The concept of sanction is also misleading as in modern democratic country, the sanction behind law is not the force of the state but the willingness of the people to obey the same.

9. Sanction is not essential elements: Sanction is not an essential element of law, as in civil law no such sanction is to be found.

10. Disregard of ethical elements: According to salmond, Austin’s theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law.

11. Not applicable to International Law: Austin’s definition of law cannot be applied to International law that is to say that International Law is not an imperative law. The International law is not the command of any sovereign, yet it is considered to be law by all concerned. (xii) Not Applicable to constitutional law: Austin’s definition of law does not apply to constitutional law which cannot to called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.

4. IS MORAL LAW IMPERATIVE: Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of men. It does not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law.

CONCLUSION:

To conclude, I can say, that inspite of criticism of Austin’s theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makes a distinction between what law is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc.


What do you understand by Analytical Positivism ? (2016) – 4MARKS

Analytical Legal Positivism  Legal positivism is the most influential school of thought in jurisprudence. The positivist movement started at the beginning of the 19th century.  The analytical school is positive in its approach. The jurists of the school consider that the most important aspect of law is its relation to the state. Law is treated as command emanating from the state. For this reason, this school is also known as the imperative school.Define PositivismLegal Analysis and Examination of Man made Law i.e of the law “as it is” or “as it actually exist” is known as Positivism.The Analytical School is also called the Positive Law school because the exponents of the school are concerned neither with the past nor with the future of law but with law as it exist i.e “as it is ”The fundamental principles of legal positivism is to draw a clear cut demarcation between law and morals.Positivism Prof HLA Hart`s five fold meaning of Positivism 1. Law is the command of Human Beings 2. Law is as it is 3. Law is not to be derived from nor there is to be any relationship between law and other enquiries (sociology, history, etc.) 4. Legal system is a closed logical system (no external aspects can be allowed to be considered in law) Example: A.K.Gopalan v. State of Madras 5. Law is a matter of fact and it can be defended or justified unlike moral statements. Example: Capital punishment . Characteristics of Positivism • Certainty and Predictability of Law • Scientific Study of Legal System • Definite and Verifiable Source • Sanction • Bindingness emanates from State • Distinction between Law as it is and Law ought to be. • Law can only be studied with the help of logic.Chief Exponents of the Theory  Bentham;  Austin;  Sir William Markby;  Sheldon Amos;  Holland  Salmond;  Professor HLA Hart

Scope of Jurisprudence ?

Scope of Jurisprudence- After reading all the definitions of Jurisprudence, we would find that Austin was the only one who tried to limit the scope of jurisprudence. He tried to segregate morals and theology from the study of jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it includes all human conduct in the State and the Society.
Approaches to the study of Jurisprudence- There are two ways

1. Empirical- Facts to Generalization.

2. A Priori- Start with Generalization in light of which the facts are examined.
Significance and Utility of the Study of Jurisprudence 1. This subject has its own intrinsic interest and value because this is a subject of serious scholarship and research; researchers in Jurisprudence contribute to the development of society by having repercussions in the whole legal, political and social school of thoughts. One of the tasks of this subject is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. It is the belief of this subject that the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat the lawyer’s occupational view of formalism which leads to excessive concentration on legal rules for their own sake and disregard of the social function of the law.

3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of Jurisprudence.

6. It trains the critical faculties of the mind of the students so that they can dictate fallacies and use accurate legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day. This he can handle through his knowledge of Jurisprudence which trains his mind to find alternative legal channels of thought.

8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but also must include normative study i.e. that study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances.

9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence’.


What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject.
When an author talks about political conditions of his society, it reflects that condition of law prevailing at that time in that particular society. It is believed that Romans were the first who started to study what is law.

Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyse what is law. He divided his study into two parts:
1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.
2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law (Expositorial) and never became what it ought to be (Censorial).
J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s extraversion. He further said that it is a lawyer’s examination of the percept, ideas and techniques of law in the light derived from present knowledge in disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by the State so there could be nothing good or bad about it. Jurisprudence is nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws that is laws strictly so called. It has nothing to do with the goodness or badness of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.
Basically, in essence they are same but in scope they are different.
Salmond’s Criticism of Austin
He said that for a concept to fall within the category of ‘General Jurisprudence’, it should be common in various systems of law. This is not always true as there could be concepts that fall in neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular and not the science itself.
Holland’s Definition- Jurisprudence means the formal science of positive laws. It is an analytical science rather than a material science.

1. He defined the term positive law. He said that Positive Law means the general rule of external human action enforced by a sovereign political authority.

2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal here means that we study only the form and not the essence. We study only the external features and do not go into the intricacies of the subject. According to him, how positive law is applied and how it is particular is not the concern of Jurisprudence.

3. The reason for using the word ‘Formal Science’ is that it describes only the form or the external sight of the subject and not its internal contents. According to Holland, Jurisprudence is not concerned with the actual material contents of law but only with its fundamental conceptions. Therefore, Jurisprudence is a Formal Science.

4. This definition has been criticized by Gray and Dr. Jenks. According to them, Jurisprudence is a formal science because it is concerned with the form, conditions,
social life, human relations that have grown up in the society and to which society attaches legal significance.

5. Holland said that Jurisprudence is a science because it is a systematized and properly co-ordinated knowledge of the subject of intellectual enquiry. The term positive law confines the enquiry to these social relations which are regulated by the rules imposed by the States and enforced by the Courts of law. Therefore, it is a formal science of positive law.

6. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas on the basis of the legal system as distinct from material science which deals only with the concrete details of law.

7. This definition has been criticized on the ground that this definition is concerned only with the form and not the intricacies.

Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the land or civil law. He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the doctrines.
‘Specific’ is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system existing at any time, past or the present.

2. Historical- It is concerned with the legal history and its development

3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to be. It deals with the ‘ideal’ of the legal system and the purpose for which it exists.
Criticism of Salmond- Critics say that it is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought.

Keeton- He considered Jurisprudence as the study and systematic arrangement of the general principles of law. According to him, Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law.