A PROJECT ON

RELEVANCE OF VARIOUS SCHOOLS OF LAW IN

CONTEMPORARY TIMES

SUBMITTED TO

Ms. Anukriti Mishra

(FACULTY OF LAW)

SUBMITTED BY

Saurabh Bara

SEMESTER-V, SECTION- C

ROLL NO- 142

(B.A., L.L.B. Hons.)

DATE OF SUBMISSION: 16-08 -2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

NEW RAIPUR (C.G.)

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Certificate

I hereby certify that the work which is being presented in the International Relations Project
Report entitled Relevance of various school of law in contemporary times, submitted to
the Ms Anukriti Mishra , Faculty of Law, Hidayatullah National Law University, Raipur is an
authentic record of my own work carried out during a period of 5th Semester.

SAURABH BARA

(SEMESTER V)

Roll No. 142

Section- C

This is to certify that the above statement made by the student(s) is correct to the best of my
knowledge.

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Acknowledgment

I, SHUBHAM CHANDRAWANSHI, feel myself highly elated, as it gives me tremendous

pleasure to come out with work on the topic Relevance of various schools of law in
contemporary times. I started this project a month ago and on its completion I feel that I
have not only successfully completed it but also earned an invaluable learning experience.

First of all I express my sincere gratitude to my teachers who enlightened me with such a
wonderful and elucidating research topic. Without him, I think I would have accomplished
only a fraction of what I eventually did. I thank him for putting his trust in me and giving me
a project topic such as this and for having the faith in me to deliver. His sincere and honest
approach have always inspired me and pulled me back on track whenever I went off track.
Sir, thank you for an opportunity to help me grow.

I also express my heartfelt gratitude to staff and administration of HNLU in library and IT lab
that was a source of great help for the completion of this project.

Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I also express my gratitude to all the class mates for helping me as and when
required and must say that working on this project was a great experience. I bow my head to
the almighty god for being ever graceful to me.

Thanks,

Saurabh Bara

(SEMESTER V)

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 CONTENTS

SR. NO. CHAPTER PAGE NO.

1. CERTIFICATE 2

2. ACKNOWLEDGEMENTS 3

3. INTRODUCTION 6

4. OBJECTIVE OF STUDY 5
RESEARCH METEHDOLOGY

5. ANALYTICAL SCHOOL OF LAW 7-9

6. HISTORICAL SCHOOL OF LAW 10-11

7. SOCIOLOGICAL SCHOOL OF LAW 12-14

8. PHILOSOPHICAL AND COMPARATIVE SCHOOL OF LAW 15

11. CONCLUSION 16

12. REFERENCES 17

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 Objectives of study
To study about schools of law
To study about the contemporary times

Research Methodology
This research is descriptive and analytical in nature. Secondary and electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by the faculty have been primarily helpful in giving this
project a firm structure. Websites, dictionaries and articles have also been referred.

Bibliography has been provided at the end to acknowledge the same.

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Introduction
The English term Jurisprudence is based on the Latin word jurisprudentia: juris is the genitive
form of jus meaning "law", and prudentia means "prudence").Thus meaning comes from the
Latin term juris prudentia, which means "the study, knowledge, or science of law". The word
first appeared in English in 1628, at a time when the word prudence had the now obsolete
meaning of "knowledge of or skill in a matter". It is also believed that the word may have
come via the French jurisprudence, which is aappeared much earlier. Jurisprudence is thus
the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal
philosophers and social theorists of law), try to assign a deeper understanding of the nature of
law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began
in the 18th century and was focused on the first principles of the natural law, civil law, and
the law of nations. Hence jurisprudence is a name given to certain type of investigation into
law and investigation of an abstract, general or theoretical in nature which seeks to lay the
essential principles of law and legal system General jurisprudence can be broken into
categories both by the type of question scholars seek to answer and by the theories of
jurisprudence, or schools of thought, regarding how those questions 2 are best answered.
Answers to these questions come from four primary schools of thought in general
jurisprudence:

Natural law is the idea that there are rational objective limits to the power of legislative
rulers. The foundations of law are accessible through human reason and it is from these laws
of nature that human-created laws gain whatever force they have.

Legal positivism, by contrast to natural law, holds that there is no necessary connection
between law and morality and that the force of law comes from some basic social facts. Legal
positivists differ on what those facts are.

Legal realism is a third theory of jurisprudence which argues that the real world practice of
law is what determines what law is; the law has the force that it does because of what
legislators, judges, and executives do with it.

Critical legal studies is a younger theory of jurisprudence that has developed since the
1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can
be best analyzed as an expression of the policy goals of the dominant social group.

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Analytical School of Law
Analytical jurisprudence is a legal theory that draws on the resources of modern analytical
philosophy to try to understand the nature of law. Since the boundaries of analytical
philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was
probably the most influential writer in the modern school of analytical jurisprudence, though
its history goes back at least to Jeremy Bentham. Analytical jurisprudence is not to be
mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a
mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out
that legal formalism is fundamentally mistaken as a theory of law. Analytic, or 'clarificatory'
jurisprudence uses a neutral point of view and descriptive language when referring to the
aspects of legal systems. This was a philosophical development that rejected natural law's
fusing of what law is and what it ought to be.[15] David Hume famously argued in A Treatise
of Human Nature[1][16] that people invariably slip between describing that the world is a
certain way to saying therefore we ought to conclude on a particular course of action. But as a
matter of pure logic, one cannot conclude that we ought to do something merely because
something is the case. So analysing and clarifying the way the world is must be treated as a
strictly separate question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the
law?"; "What is the relationship between law and power/sociology?"; and, "What is the
relationship between law and morality?" Legal positivism is the dominant theory, although
there are a growing number of critics, who offer their own interpretations.

John Austin may be regarded as the founder of the Analytical School, though he drew his
inspiration from Hobbes, and Bentham, his teacher. To him law is a command given by a
superior to an inferior and enforced by material sanctions. Every positive law is a creation of
the sovereign power, which either established it directly or authorised some subordinate
person or body to establish it, and penalties are incurred for its disobedience. The Analytical
School, thus, emphasises that the sovereign is a determinate superior, what the sovereign
commands is law, and disobedience of such commands is accompanied by punishment. Law
is the expression of the absolute and unitary sovereignty of the State.

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This conception of law has the attraction of simplicity and consistency. It also seems to
accord with the citizens everyday experience. Let us illustrate it. Under the authority of the
Constitution, Parliament of India makes the law of income-tax and provides that disobedience
to its commands shall be punished by the fine or imprisonment, or both. Under the authority
given to it by the Municipal Act, the Municipal Committee, say, of Patiala, prohibits the
parking of cars and other vehicles in certain congested areas and ascubes the punishment for
violation of its bye-law. Both these cases answer the Austinian formula. Austins doctrine has
been subjected to unsparing attacks. His critics ask, times out of number, how customs can be
reconciled with the theory of command, and where we can a supreme law-giver in primitive
society. But both these objections do not affect the validity of Austins position. Primitive
society lies outside his domain. His sovereign is found in an independent political society,
that is, the community which has achieved Statehood and which lives under a duly
established and recognised government. To the pre-State custom, he gives the name of
positive morality. With respect to the common law of England, Austin contends that it is a
judge-made law and that judges are agents of the sovereign power acting in its name and
subject to any restraints it may impose. What the sovereign power does not forbid, Austin
says, it accepts; what it accepts, it commands.

Sir Henry Maine characterised Austins method of assimilating the common law to a
command as a mere artifice of speech and a mere straining of language. But it is a fact
that judges in Britain acted for the King in Norman and Plantagenet times and that their
decisions were effective only as he enforced them. The Analytical Theory of law can best be
appreciated once it is recognised that Austin was a lawyer and his theory is a legal theory. He
discovers in the State a person or body of persons which, in the last resort, has the de jure
right to issue commands and fixes punishment for violation of such commands.

But he does not claim that legal right is tantamount to actual power, that form and substance
are the same. He is not oblivious that the electorate, when one exists, does impose
limitations on the legal sovereign.In fact, he points out that in any State, even when the
government is autocratic, the sovereign is restrained by the opinions of the people and must
defer to the principles and maxims held by the bulk of them or by the most influential
portion.

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The main defect of Austin was, as Sait says, that he erred in thinking of the influence of
masses as negative rather than positive. Law must be the expression of the will of the
people, if it can adequately serve its purpose.

Moreover, the Analytical School makes law rigid. It is the letter of the law which must be
followed and there is nothing to lubricate its application. It also breeds conservatism, as it
does not cater to the needs of the people and the times. Nor does it run into the past to
establish its natural evolution. Gettell has correctly said that Analytical jurists tend to regard
the law as static rather than progressive, and they are not interested in its historical evolution.
As a result, they have sometimes reached absolute conclusions without examining an
adequate material.

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Historical School of Law
The Historical School of jurisprudence found its origin in Germany at the beginning of the
nineteenth century. Frederick Von Savigny was its most famous apostle, though not its
founder. Sir Henry Maine was another eminent follower and supporter of this school. The
Historical School regards the people themselves as law-makers through the formation of habit
and custom. Its sanction is not the coercive authority of the State, but a general sense of right
of the society. People obey law as a matter of habit because, in their opinion, it conforms to
their standard of right.

Historical jurisprudence is marked byjudges who consider history, tradition, and custom whe
n deciding a legal dispute. Strictly speaking, history does notcompletely fall within the definit
ion of either positivism or natural law. Historical events, like the Civil War, are not legislativ
eenactments, although they may be the product of governmental policy. Nor do historical eve
nts embody eternal principles ofmorality, although they may be the product of clashing moral
views. Yet, historical events shape both morality and law.Thus, many positivists and naturali
sts find a place for historical jurisprudence in their legal philosophy.

Acceptance has, therefore, always been the theory and fact of law. No rule of law was ever
successful or even endured, says Zane, unless it received practical general acceptance
among the whole body of people, for the simple reason that universal human experience has
demonstrated that a rule of law not accepted by any considerable portion of the people can
never be enforced. Whatever the means by which law is recognised, whether it is the
legislative enactments by decisions of courts, by prescripts of rulers, law is in fact law only
when it is cheerfully accepted and gladly obeyed by the great mass of the social body.

Acceptance by the community is needed to breathe life into the edict of the harshest despot.
Government may superficially appear to make law as Hobbes and Austin mistakenly
supposed, but it is the acceptance of the rules by society that makes laws and government.

The advocates of the Historical School go to the primitive society in order to explain the
nature and source of law. The conduct of the people in the primitive society, they assert, was
governed by customary rules, which were rigidly obeyed by them notwithstanding the
absence of any command of the sovereign. The customs so observed and followed
scrupulously by the succeeding generations became the social habit and a pattern of social
behaviour. What governed the conduct of men in primitive times has continued, and will

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continue, they say, to govern it at all times and under all conditions. Human nature is not
likely to undergo a radical change, and, therefore, that to which we give the name of law has
been and still is and forever continue to be custom. No legally constituted law-making
authority, however absolute its power, can disregard the weight of customs and the pre-
existing customs are the standard of laws.

Thus, law, according to the Historical School, is self-created and self-executed. It is not the
deliberate creation of the law-maker, but the result of the slow development of society
through centuries. The function of the State is not to create law, but to realise and enforce it.
Legislation can be effective only when it is reinforced by customs supplementing and
clarifying it and the punishments which it prescribes in case of disobedience are in
conformity with the established habits of the people. No legislative authority, whatever be the
extent of its legal power, can make or abrogate customary law. As Laski has said, In law
there was no part of the field of social fact he (Sultan of Turkey) could not alter: in practice
he survived only by willing not to will those changes which might have proved him the
sovereign of Austinian Jurisprudence.

But the Historical School errs in reducing the element of command to a metaphor. They
insist that the rulers adjust their wills to the wills of the ruled and command only in name.
Moreover, the adherents of this School tend to be conservative when they view law less as a
matter of deliberate legislation than as an evolution within the social body. Their reverence
for the past stresses legal history rather than the content of law and what law should really
aim at.

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Sociological Schools of Law
The Sociological School, the most prominent representative of which are Duguit, Krabbe and

Laski, describes the orthodox conception of law as a futile truth. They argue that law is not

really made by an organised body of men.They admit that there are definite agencies in a

society issuing commands or making decisions which are normally obeyed by the bulk of the

community. But all such commands or decisions do not deserve to be regarded as laws. Some

other quality is essential to give these rules the character of law. Law, according to Duguit, is

the name for the rules of conduct which men observe while living in society. They obey these

rules of conduct not because they are commands and are accompanied by punishment, but

because they are the conditions of social living. Without obedience to these rules life would

not be worth living. All of us are conscious of these rules of life which enable society to

survive.

Every man is, thus, impelled by self-interest to obey them. He knows instinctively or learns

from experience what living together means. Consciousness of this fact accounts for social

solidarity and it is the duty of the State to sustain such rules. Likewise, it is the duty of every

individual to observe all such rules as help to realize social solidarity and abstain from all

such acts as are detrimental to its growth. Laws, in brief in the fundamental sense, are the

rules of conduct which normal men know they must observe in order to preserve and promote

the benefits derived from life in society. The sanction of law, Duguit asserts, is primarily

psychological, resting in each individuals awareness of the social approval or reprobation

of his conduct according to its conformity or non-conformity to the fundamental social rules.

Krabbe explains law according to the source from which it springs. It is the sum total of all

those rules, general or particular, written or unwritten, which spring from mens feeling or

sense of right. He holds that law is above and, in origin, independent of the State. He rejects

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the idea of State sovereignty and the only theory which he is willing to recognize is the

sovereignty of law.

Krabbe defines law as the expression of one of the many judgments of value which we

human beings make, by virtue of our disposition and nature. Law is, therefore, what is just

and good from our standard of value and judgment. It is not a matter of external legal

authority, but an internal human matter. It is obeyed, because it is just and good and not

because of fear of punishment which its disobedience involves. The source of law, according

to Laski, is the individual consenting mind. People obey it as it satisfies their desires. A good

law, in his opinion, is a law which has, as its results, the maximum possible satisfaction of

desire; and no law save a good law is, except in a formal sense, entitled to obedience as

such. He, thus, puts the source of law where it most truly belongsin the individual

consenting mind. Jurists of the Sociological School hold divergent views on many points, but

all believe that law is the product of social forces and should serve social needs. They do not

concern themselves with the abstract theories, but judge the law by its results and find its

sanction in the social needs that it serves. The legal imperatives of any state, says Laski,

must always be conceived if they are to be capable of justification, in terms of the end it

seeks to serve; they are, so to say, a permanent essay in the conditional mood.

Without any reservation, the Sociologists attack the idea of a sovereign State as the creator of

law. It is possible, they point out, to conceive of a State in which there is law and no State,

but it is not possible to conceive of a State in which there is no form of law. The purpose of

law is to serve society and the purpose of the State is to enact and promulgate laws in order to

achieve the socially desirable ends. Gettel has cogently summed up what the different

Schools of Jurisprudence claim and explain.

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He says, In contrast to the analytical jurist, who found the sanction of law in the command

of the State, to the philosophical jurists, who found its sanction in its inherent justice, and to

the historical jurist, who found its sanction in established habits and custom, the sociological

jurist finds the sanction of law in the social needs and interests that it serves.

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Philosophical and Comparative Schools of Law

The Philosophical School is not concerned with what the actual law of the past and the
present is. Their effort is to develop the idea of justice as an ethical principle and
consequently to create an ideal system of law.In the eighteenth century they put their faith in
the law of nature which could be discovered by human reason. In the nineteenth century they
engaged themselves in the metaphysical discussions of the existing law and in attempts to
create a perfect system of law in codes and legislation.

In the twentieth century they devoted themselves to social interests and ideals and to the
formulation of theories of social justice.

The jurists of the Philosophical School have always considered law as an abstraction and
based it upon abstract ethical principles of justice. A law, as such, is removed from
objectivity whereas it ought to be definite and precise, capable of universal application.
Idealism must be blended with realism.

The Comparative School

Another school of jurisprudence, known as the Comparative School, is of modern origin. Its
exponents adopt the method of examining and comparing the legal systems of the past and
the present, and arrive at generalisations.They also draw upon other Social Sciences for their
material for proper authentication and reliability. Although the programme of this school is
ambitious and sufficient headway has been made in our knowledge of law, much still remains
to be done.

Comparisons are, no doubt, valuable aids and they bring us nearer to the truth. But if law is
really to be the manifestation of the will of the people, it must be in conformity with the
genius of the people concerned. No wholesale importation from outside can serve the desired
purpose and fulfil the needs.

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Conclusion
Legal philosophy has many branches, with four types being the most common. The most prev
alent form of jurisprudenceseeks to analyze, explain, classify, and criticize entire bodies of la
w, ranging from contract to TORT to Constitutional
Law.Legal encyclopedias, law reviews, and law school textbooks frequently contain this type
of jurisprudential scholarship.Thesecond type of jurisprudence compares and contrasts law w
ith other fields of knowledge such as literature, economics,religion, and the social sciences. T
he purpose of this type of study is to enlighten each field of knowledge by sharinginsights tha
t have proven to be important in advancing essential features of the compared discipline.

The third type of jurisprudence raises fundamental questions about the law itself. These quest
ions seek to reveal thehistorical, moral, and cultural underpinnings of a particular legal conce
pt. The Common Law (1881), written by OLIVERWENDELL HOLMES JR., is a well-
known example of this type of jurisprudence. It traces the evolution of civil and criminalresp
onsibility from undeveloped societies where liability for injuries was based on subjective noti
ons of revenge, to modernsocieties where liability is based on objective notions of reasonable
ness.

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References
https://www.britannica.com/topic/philosophy-of-law
http://www.studymode.com/subjects/sociological-school-of-jurisprudence-page1.html
http://www.studymode.com/essays/Sociological-Jurisprudence-And-Sociology-Of-Law-
1630031.html
https://www.studymode.com/signup/?redirectUrl=%2Fessays%2FSociological-
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http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Jyoti.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1925790
https://www.academia.edu/4167468/THE_RELEVANCE_OF_THE_SOCIOLOGICAL_
SCHOOL_OF_JURISPRUDENCE_TO_LEGAL_STUDIES_IN_NIGERIA
https://www.britannica.com/topic/sociological-jurisprudence

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