Jurisprudence: The Major Legal Theories (Part 1)

This article was written by Saakshi S. Rawat, a student of Bennett University.

INTRODUCTION

The paper discusses different legal theories. The first one being the positivist theory also known as the Analytical school, which considers relation to state as its most important aspect of law. Treating law as the command of sovereign. This school has various jurists like Austin, Bentham, Salmond, Hart.

The second school is the Historical school of jurisprudence, it regards law as an arbitrary creation whose sanctions are not embedded in its historical past but emanate from the state authority. This school shares the ideas of jurists like Montesquieu, Savigny, Puchta, Henry Maine.

The third school is the Anthropological School which can be regarded as the product of historical school, most of the representations of this schools have been provided by Sir Henry Maine. He developed the anthropological approach to the historical school and expounded the theory by stating “the movement of the progressive societies has hitherto been a movement from status to contract”. Custom according to him, naturally played a predominant role in the formulation and evolution of law, justice and procedure.

CHAPTER ONE: POSITVISM (ANALYTICAL) SCHOOL

The term positivism as tabulated by Professor Hart is that the laws are commands and the meaning have been associated by the two founders Jeremy Bentham and John Austin, the analysis of legal concept is worth pursuing and its decisions can be deduced logically from predetermined rules without recourse to social claims, policy or morality. He also states that moral judgements cannot be established or defended by rational argument, evidence or proof.[1]

• Jeremy Bentham (1784-1832)

He started a new era of legal positivism in England. He bought reforms of principles and method. In his work “The introduction to the principles of morals and legislation”, privately printed in 1780 and published in 1789,[2] Bentham united phycology, ethics, and jurisprudence.

Bentham preferred to divide jurisprudence into ‘expositorial’ and ‘censorial’ jurisprudence. Expository or analytical jurisprudence is concerned with law it is without any regard to its moral and immoral character. Censorial jurisprudence, on the other hand, is concerned with ‘science of legislation’ that is, what the law ought to be.[3]

1. Utilitarian theory

Utilitarianism theory focuses on the results, consequences, of actions, and treats intention as irrelevant and upon the greatest happiness, or pleasure of greater number of people, according to him the majority’s happiness matters the most he does not consider the happiness or the thoughts of an individual, which may create problems in the society as the decisions made by the majority are not always in favour of society as a whole.

1. Criticism

Bentham was criticised by J.S. Mill, who stated that Individuals happiness succumbs to the general. He also stated that the pleasure is supposed to be enjoyed by both the majority and minority, and pleasure can be counterproductive in development of society, an unplanned pleasure, un-strategic pleasure. He underestimates the need for individual’s view.

• John Austin (1790-1859)

Austin is known as the father of jurisprudence. He is considered representor of analytical positivism; he mainly focuses on the command theory. Law according to Austin is the command of sovereign backed by sanctions.  The four essential parts of positive law according to him are command, sanction, duty and sovereignty. Austin in theory talks about political superiority and inferiority amongst people. His major thrust in positive law was that he separated law from morals and treated jurisprudence away from ethics.

1. Theory of law

Austin defined law as “a rule laid for the guidance of intelligent beings by an intelligent being having power over him”,[4] he divides the laws as (1) Law of God – Laws set by God for men. (2) Human Laws – Laws set by men for men.

According to Austin there are 3 kinds of laws:

1. Declaratory or explanatory laws – passed only to explain the law that already exists.
2. Laws of repeal – he does not talk about these laws they go against the sovereign.
3. Laws of imperfect obligation – these laws are not treated as commands as there is no sanction attached to it.
4. Criticism

Hart in his criticism says that Austin has given his theory with un-mindfulness he didn’t think about the morality and sovereignty of the subjects and morality is a part of law and power and freedom should be given to all. Fuller in his criticism says that the support of public is necessary to pass any law, the ruler should think about the society and what their opinions are. He further states that law is a subject to human conduct and it cannot be devoid of morality.

The command of the sovereign has been over emphasized by Austin which leaves no chance for democracy and people’s welfare they have no chance of raising their points or fighting for themselves. He has also ignored the relationship of law with morality and ethics.

CHAPTER TWO: HISTORICAL SCHOOL

The historical school believes that the law has biological growth and it has not evolved in an arbitrary and erratic in manner. Historical has succeeded in throwing light on the origins of the idea of law, and in providing a better understanding of certain institutions, and rules of ancient law.[5]

• Montesquieu

Montesquieu is the first jurist to talk about the Historical School. His conclusion to law, “laws are the creation of climate, local situations, accident or imposture”. According to him law should have a natural instinct of mankind which must not be overridden by law, the desire to live in peace with one’s fellows, self-defence, the necessity of search for food, the modesty of women. A natural law of this description is obviously too barren and of too little import to serve as a pattern for the law of a society.[6]

• K. von Savigny  

Savigny was one of the most influential German jurists in the 19th century and known as the pioneer of the Historical school of law through his concept of Volksgeist (Spirit of people). He was also appointed as the Prussian Minister of Justice in 1848.

1. Theory of Volksgeist

According to the Savigny, the law is the product of the people’s life living in a particular society and it is the outcome of a culture of a society. The Volksgeist gradually drives the law to develop over the course of history. Law is a continuous and unbreakable process bound by the common culture and beliefs of society, not the product of the day. Law is not universal in nature but like language, it varies with people, time and need of the community. It develops by the regular and the continuous process of society. Customs and usages in society are given common consent to be followed by the society in the beginning and the people follow them without any hesitation, insured willingly and those not follow become solitude in the society and finally, all have to become common and this the thing takes the shape of law on the society. Savigny was against the codification of the law. He thinks that the development of the law should be on the basis of the historical knowledge and not by the arbitral legislation.

1. Criticism

Charles Allen criticized Savigny’s view that law should be found or based on the customs.  Allen was of the view that customs are not the outcome of common consciousness of people. But they are the outcome of the interest of a powerful and strong of a ruling class. For example, slavery which was recognized and prevailed in certain societies by the powerful classes of society.

CHAPTER THREE: ANTHROPOLOGICAL SCHOOL

Anthropological investigations, the nature of primitive and undeveloped systems of law are of mon origin and might be regarded as a product of the Historical School.  Pride of place will here be accorded to Sir Henry Maine (1822-1888), who was the first and still remains the greatest representative of Historical movement in England.[7]

• Sir Henry Maine (1882 – 1888)

Sir Henry Maine was the founder of the English Historical School of Law. He carried forward Savigny’s view of Historical School in England. Maine studied the Indian legal system deeply as he was law member in the Council of the Governor–General of India between 1861 to 1869. Maine’s ideas were incorporated by the best things in the theories of Savigny and Montesquieu and he avoided abstract and unreal Romanticism.

Development of law

The development has been divided into four stages:

1. Rulers were believed to be acting under divine inspiration. And the laws are made on the commands of the rulers. The judgment of the king was considered to be the judgment of God or some divine body.
2. The commands of king were superior and were converted into customary law, the customs that prevailed in the majority class.
3. The development of law, the authority of the king to enforce and execute law was usurped by the priestly class who claimed themselves to be learned in law as well as religion. The priestly class memorised the rules of customary law because the art of writing had not developed till then. They applied and enforced the customary law.
4. The law is codified and promulgated.

• Malinowski

Malinowski was one of the most colourful and charismatic social scientists of the twentieth century. A founding father of British social anthropology between the two world wars, his quasi-mythical status has fascinated his disciplinary descendants who continue to measure themselves against his achievements. Marching under a self-styled theoretical banner of Functionalism, Malinowski revolutionized fieldwork methods, cultivated an innovative style of ethnographic writing, and mounted polemical assaults on a wide array of academic disputes and public issues. By the time of his death, in the United States in 1942 he was a controversial international celebrity, a cosmopolitan humanist who dedicated his final years to the ideological battle against Nazi totalitarianism.

New methodology

Malinowski, basing on his experience of research on the Trobriand, formulates postulates and rules that every anthropologist doing fieldwork should follow. According to him, a good researcher focuses on trying to see the world with the eyes of the local people and permeate through his thinking and feeling up until understanding these processes, a researcher should also speak the local language. An anthropologist should also establish what is a norm, custom, or a rule in a given community. Usually, it is possible to learn it only after arrival. Constructing a methodology is also crucial. An anthropologist does not prepare any concept for the research and should not listen to any suggestions of other observers, as these are mostly burdened with stereotypes. It is a researcher’s duty to respect the laws, customs and rules of the community. It is also required to have an ability to sense which behaviours are wrong and right in each culture.

One of Malinowski’s major achievements was a satisfactory integration of cultural theory with psychological science, he repeatedly emphasized its instrumental character. Culture, he insisted, always subseries human needs. These are, in the first instance, biological imperatives, that is, what the psychologist calls “basic drives.” Out of man’s collective interaction in the pursuit of primary impulse satisfaction arise a number of secondary needs, also universal, such as those for economic cooperation, education, and social control. The special circumstances of particular societies and the problem of integrating the various elements of a culture give rise to needs of a still more derivative character, which differ from group to group. But diverse as are the acquired motives of human collective interaction, cultural forms never wholly free themselves from basic organic needs, which must always be served and whose gratification supports and reinforces the pursuit of secondary goals.[8]

BIBLIOGRAPHY

1. Dias on Jurisprudence, fifth edition
2. The oxford handbook of Jurisprudence and philosophical law
3. Salmonds on jurisprudence
4. Lectures in jurisprudence, NK Jayakumar, third edition

[1] Dias, Jurisprudence, Fifth Edition.

[2] Jurisprudence: from the Greeks to post- modernism

[3] Studies in jurisprudence and legal theory, Dr N.V. Paranjape, eighth edition

[4] Studies in jurisprudence and legal theory, Dr N.V. Paranjape, eighth edition

[5] Lectures in jurisprudence, NK Jayakumar, third edition

[6] Montesquieu and sociological jurisprudence, Harvard law review.

[7] Henry Maine: Anthropological Approach

[8] Bronislaw Malinowski, by George Peter Murdock