Some of the schools of Jurisprudence are:

ANALYTICAL POSITIVISM OR ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical positivism (also known as the Analytical or Imperative school of law) is the most important school of thought in jurisprudence. The analytical school of jurisprudence is one of the most renowned contributions of Austin. It, therefore, explains law with reference to nature, purpose, characteristic, and function of the same. This school describes the history and philosophy of motion of emerging human thoughts on the aspect of law.

The positivist movement had been started at the beginning of the 19^th decade because in this period of time the natural theory of law was not considered as relevant due to the influence of the scientific method on the concept of social sciences including jurisprudence.

Jurists of the school such as Austin, Hart, and others analyzed the same sense of law i.e. positive law. They did not rely on the concept of ‘law ought to be’ instead considered the concept of ‘law as it is’ existing. They also considered that law contains no relation with moral principles.

The jurists were named ‘positivists’=  school was known as ‘positivist school’.

Different positivists had the same objective and perspective in their thoughts where few basic assumptions are followed by them which include;

• Sovereign or Grundnorm – As the law created by the authority.
• Relied on the ‘law as it is’ not on ‘the law ought to be’ – ignored morality and natural law.
• Determined and encouraged the concept of sanction – sanction which was substantive before the enforcement of laws.

Features of Analytical school of Jurisprudence

• Concerned with strictly so called i.e. what law is, not what it ought to be?.
• Law is not based upon idea of good or bad, it is based upon power of superior
• There is no moral law.
• Law and justice differs
• This school is reaction against natural law theories, which are based upon rationalization or nature confined law or God and gave importance to ethical and moral issues.

Jeremy Bentham (1748-1832)

Bentham is considered to be the founder of ‘positivism’ in the modern sense of the term. He preferred to divide jurisprudence into ‘expository’ and ‘censorial’ jurisprudence. Expository or analytical jurisprudence is concerned with law, it is without any regard to its moral or immoral character. On the other hand censorial jurisprudence is concerned with ‘science of legislation’ that is what the law ought to be.

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

Bentham had defined law with the help of two important aspects such as;

• Law is “Happiness is the Greatest Good”: According to Bentham, the laws framed must promote pleasure and decrease any kind of pain to human beings.
• Law is the command of the sovereign: The concept of sovereignty came into existence by Bentham before Austin would compose it. Bentham says the law is the command given by the sovereign.

Bentham’s Philosophy of Individualism

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

Principle Of Utility

According to him the consequences of good and evil are respectively ‘pleasure’ and ‘pain. In simple words, the basic thing which come under principle of utility i.e. pleasure and pain. Principle of utility recognizes the role of pleasure and pain as human life.

Pleasure = ‘everything that is good’

Pain = ‘everything that is bad or evil’.

Therefore, keeping the consequences of good and bad in human life the principle approves or dis-approves action on the basis of pleasure and pain. He believed that happiness of social order is to be understood in the objective sense and it broadly includes satisfaction of certain needs, such as need to be fed, clothed, housed etc. According to him, happiness changes its significance in the same way as the meaning also undergoes changes with the changes in societal norms.

He desired to ensure happiness of the community by attending four major goal namely,

• Subsistence
• Abundance
• Equality
• Security for the citizens

Therefore, the function of law must be to meet these ends in order to provide subsistence, to provide abundance, to favor equality and to maintain security.

In order to measure the pain they advise a calculator known as ‘utilitarian calculus’ which give seven factors to calculate pain-

• Intention
• Duration
• Certainty
• Nearness
• Fecundity
• Purity
• Extent

The task of government according to Bentham, was to promote happiness of society by furthering enjoyment of pleasure and affording security against pain. He was convinced that if individuals comprising society were convinced that if individuals comprising society were happy and contended, the whole body politic would enjoy happiness and prosperity.

Laissez Faire

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

Criticism:

• His theory ignores balancing the interest of the individual with the community’s interest.
• His principle of utilitarianism says about pain and pleasure are the final and ultimate test of the adequacy of law but they cannot be defined as the final test.
• His theory was in the form of Laissez-Faire policy which harms the individuals in the society majorly on poor section people.
• Sole importance given on pleasure which is quantified is not a proper decision.

Austin (1790 – 1859)

John Austin is the founder of the Analytical school and father of the English Jurisprudence. He was born in 1790. He was elected to the chair of Jurisprudence at the University if London in 1826. His lectures delivered in the London University were published in 1832 under the title ‘the Province of Jurisprudence Determined’.

Austin defined law as ‘a rule laid down for the guidance of intelligent being by an intelligent being having power over him’.

• Austin’s Definition of Law

“Law is a command of the sovereign backed by a sanction.”

LAW = COMMAND + SOVEREIGN + SANCTION

His notion was that where there is no sovereign, there is no independent political society and vice versa is also applicable. For him, Law, was a set of rules established by men as politically superior, or sovereign, to men as politically subject.

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

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

The commands may be

• General Command = issued for the guidance of a whole community, or
• Particular command = issued for the guidance of a particular community/ Individual.

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

• Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A sovereign may be any individual or body of individuals, whom the politically influenced mass of people habitually follow. However, he himself does not obey an individually or body of individuals.
• Sanction: To ensure and administer justice the state, applies physical force as sanction. Therefore, it is the sole crux of Positive Law. It instils fear of punishment in case one disobeys the laws. Sanction is related to duty shaped by the command of a sovereign authority and sanction becomes absolute necessity for enforcement of law.
• Punishment:

Imprisonment of any type

Fines

Forfeiture of property

Classification of Law by Austin:

(Austin theory of Imperative Law)

Austin separated law as improperly so-called and law properly so-called. He encourages positive law only because he is a positivist.

He recognized that law can be set by both God (divine law) or by men to men, where law set by God is regarded as ambiguous and misleading according to him and on the other hand laws set by men to men is of three types;

• Laws set by political superiors to their inferiors – law properly so-called.
• Laws set by men who are not political superiors – positive morality.

Criticism:

Australians theory has been criticized by a number of jurist points of the criticism against Austin theory of law which are as follows:-

1. Custom ignored:- As per the Australian theory we founded that law is the command of the sovereign. Austin mainly focuses on the commands that are given by the sovereign are the laws. But in the earlier times, not the command of any superior but custom regulates the conduct of the people. Continue to regulate the conduct of the people, even after coming of the state into existence. Some jurists are in favour of the customs as laws and they say that laws are not the command of the sovereign but the custom followed by the people for a long time. But Austin in his theory of law emphasized only the law as the command of the sovereign and ignored the custom as a law.
2. Judge made law:- Austin in his theory has not provided any place for judge-made law. In the course of their duty judges make law by applying precedents and interpreting the law. Though an Austinan would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign body, in modern times, will deny that judge perform a creative function and Austin’s definition of law does not include it.
3. As against the command:- Austin believes that the determination of human superiority is the only law-maker and its commands are laws. But with other historic jurists, Sir Henry Main criticized Austen’s theory of sovereignty and condemned it. Sir Henry Men believes that sovereignty does not exist in the determination of human superiority. According to him, “a large population of influences, which we can call for a lesser ethic, which permanently shapes, limits or prohibits the real direction of forces by its sovereign”.
4. This theory makes the sovereign completely absolute:- This theory makes the sovereign completely absolute, but in practice, it is not possible to be completely absolute. In the ancient and medieval era, there were absolute monarchs. But the monarchs could not remain completely absolute in his actions and behavior. They were subject to ethics theory, code of conduct, and investigation of religion. If he tried to violate established moral, ethical, and religious canons, he was in danger of facing rebellion.
5. This theory is not even applicable to Europe:- Austin has claimed that the King-in-Parliament is sovereign in England. But legally, this claim is not right because neither the king nor the parliament can go to the extent of becoming completely absolute. Always have to pay attention to the wishes of the public. The reality is that the public is the ultimate source of power. It is public which empowers Parliament. This is the reason why elections are held every five years after the House of Commons. And in the absence of the House of Lords, the House of Lords is quite ineffective.

Holland (1835-1928)

Holland is a follower of Austin. He followed the concept of the analytical approach of the study of law which is thoughts of Austin and the same was carried further by him. He rejected Austin’s thoughts on ‘Particular Jurisprudence’ by stressing that if the jurisprudence is science then it is always general and universal but not particular.

His famous book is “The Elements of Jurisprudence”.

• According to Holland, Jurisprudence is

“the formal science of that relation of mankind which is generally recognized as having legal consequences – the formal science of positive law”.

The important terms to be remembered here is:

• Formal: The jurisprudence concerns the human relation which is governed by the rules of law.
• Positive Law: Holland deals with the law as it is or existing law and does not concern with the law ought to be, which is the same as the concept of Austin.

Holland’s Criticism

• Buckland criticized the concept of distinction of the word ‘particular’ and ‘general’ in the particular jurisprudence concept of Austin by saying it is not a correct separation.
• Buckland also said that law is not a mechanical structure like geological deposits but the law is development or growth and its true analogy is with biology.
• Salmond, Jethrow, Brown, and Gray also criticized Holland for his rejection of ‘particular jurisprudence’ and agreed with Austin on this concept.

Dias and Hughes observed Holland’s jurisprudence with geology is erroneous because according to the law is a social institution and which differs its structure upon its objectives, traditions, and environment

Salmond (1862 – 1924)

Salmond is a legal positivist and belongs to an analytical school. He says jurisprudence is a science as same in the eyes of Austin and Holland. He has defined law in a unique way which is different when it is compared to Austin.

Salmond’s famous book is “Jurisprudence or Theory of the law”.

Salmond’s Contribution to the Analytical school of jurisprudence

• According to Salmond, the law is “the body of principles recognized and applied by the state in the administration of justice”. It means the law is rules which are acted by the courts of justice. The final and true test of the adequacy of law is defined by the enforceability of law in the courts of justice.
• According to Salmond, Jurisprudence is “the science of first principles of the civil law”.
• The civil law here is the law that is applied by the administration in the court of justice and it is the first principle and the final test of the adequacy of law.
• Salmond’s definition of law has brought a drastic change in the thoughts of analytical positivists.
• Inspired by him many realist jurists have considered law as it is and not law which ought to be.

Salmond’s Criticism

• Vinogradoff criticized Salmond’s definition of law, according to his law is to be formulated precisely by applying it in a court of justice.
• Critiques also said that the definition is itself defective because on their thoughts law is logically subsequent to the justice of administration.
• The definition of law is vitiated because when the rule has existed for the purpose of applying it in the court of justice.
• The purpose of the law Is not only justice but it also must be accepted universally.
• He has also narrowed the field of law according to the critiques.

Hans Kelsen (1881 – 1973)

Kelsen has contributed the pure theory of law to the analytical school of jurisprudence. He also accepted the concept of law as normative in nature and not a natural science.

Hans Kelson was an Austrian jurist, legal philosopher, and political Philosopher belonging to a legal positivism school of thought. Roscoe Pound was appreciated as Kelson’s “undoubtedly the leading jurist of time.”

His famous book is “The Pure Theory of Law”.

Pure Theory of Law or Vienna School

Kelsen defines law as

“the body of norms which stipulates sanction”.

Here, the norm is a pattern or model, the definition says that a kind of directive by which a certain act is permitted or authorized or commanded. His theory says to be pure because he eliminates alien elements which make the structure of the legal system improper. According to him, the law must be positive law.

According to Kelsen, Jurisprudence is “the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm ‘Grund Norm’.

For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from the Grundnorm which is Constitution. If in IPC any such law made which is against the Grundnorm then they will become invalid.

His definition executes the relationship between the Grund norm and all other norms. For him norm is a ‘rule of conduct’ and grund norm is the superior norm. The grund norm delegates authority to inferior norms which derives their validity from the norms superior to themselves.

The validity of other inferior norms can be defined by testing against grund norm.

Key Features of Kelsen’s Pure Theory

1. Law as Science: Kelsen tried to present a theory that could be attempted to change Law in science, a theory that could be understood through logic.
2. As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces his theory as a theory of positive theory. This principle of positive law is then presented by Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘, where all other norms are related to each other either being inferior norms.
3. Law “As it is”: Kelsen emphasized that analysis should focus on the law ‘as it is’ in fact laid down, not as ‘it ought to be’.
4. Law and morality: Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.
5. The theory of law should be uniform: According to Kalsen, the theory of law should be applied at all times and in all places.
6. Static Aspect of Law: Kelsey distinguished the static theory of law from the dynamic theory of law. The static theory of law represented the law as a hierarchy of laws where individual laws were related to each other either being inferior, the one to other, or superior with respect to each other.

Kelsen’s Criticism

• The concept of Grundnorm is vague and creates confusion.
• His theory of him did not give importance to his practicality of it.
• He directly ignored morality and natural law.
• As he says his theory is pure and excludes improper elements in it but the critiques say that it is not possible to maintain purity.

NATURAL LAW THEORY OF JURISPRUDENCE

There is no unanimity about the definition and exact meaning of Natural Law.

In jurisprudence = ‘Natural Law’ = rules and principles which are supposed to have originated from some supreme source other than any political or worldly authority.

It symbolizes Physical Law of Nature based on moral ideals which has universal applicability at all places and terms. It has often been used either to defend a change or to maintain status quo according to needs and requirement of the time.

For example,

Locke used Natural Law as an instrument of change but Hobbes used it to maintain status quo in the society.

The concepts of ‘Rule of Law’ in England and India and ‘due process’ in USA are essentially based on Natural Law.

Natural Law is also the Law of Reason, as being established by that reason by which the world is governed, and also as being addressed to and perceived by the rational of nature of man. It is also the Universal or Common Law as being of universal validity, the same in all places and binding on all peoples, and not one thing at Athens.

Lastly in modern times we find it termed as “moral law” as being the expression of the principles of morality. The Natural Law denies the possibility of any rigid separation of the ‘is’ and ‘ought’ aspect of law and believes that such a separation is unnecessarily causing confusing in the field of law. The supporters of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have been drawn from the nature of man and the Law of Nature and, therefore, this aspect cannot be completely eliminated from the purview of law. It has generally been considered as an ideal source of law with invariant contents.

Features of Natural Law:

• Natural Law is eternal and unalterable, as having existed from the commencement of the world, uncreated and immutable.
• Natural Law is not made by man; it is only discovered by him.
• Natural Law is not enforced by any external agency.
• Natural Law is not promulgated by legislation; it is an outcome of preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law.
• Natural Law has no formal written Code.
• Also there is neither precise penalty for its violation nor any specific reward for abiding by its rules.
• Natural Law has an eternal lasting value which is immutable.
• Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine Law means the command of God imposed upon men.

Evolution, Growth and Decline of Natural Law

The content of ‘Natural Law’ has varied from time to time according to the purpose for which it has been used and the function it is required to perform to suit the needs of the time and circumstances. Therefore, the evolution and development of ‘Natural Law’ has been through various stages which may broadly be studied under the following heads:

(1) Ancient Period

(2) Medieval Period

(3) Renaissance Period

(4) Modern period

Ancient Period

Heraclitus (530 – 470 B.C.)

The concept of Natural Law was developed by Greek philosophers around 4th century B.C. Heraclitus was the first Greek philosopher who pointed at the three main characteristic features of Law of Nature namely,

• destiny,
• order and
• reason.

He stated that nature is not a scattered heap of things but there is a definite relation between the things and a definite order and rhythm of events. According to him, ‘reason’ is one of the essential elements of Natural Law.

Socrates (470 – 399 B.C.)

Socrates said that like Natural Physical Law there is a Natural or Moral Law. ‘Human Insight’ that a man has the capacity to distinguish between good and bad and is able to appreciate the moral values. This human ‘insight’ is the basis to judge the law. Socrates did not deny the authority of the Positive Law. According to him, it was rather the appeal of the ‘insight’ to obey it, and perhaps that was why he preferred to drink poison in obedience to law than to run away from the prison. He pleaded for the necessity of Natural Law for security and stability of the country, which was one of the principal needs of the age.

His pupil Plato supported the same theory. But it is in Aristotle that we find a proper and logical elaboration of the theory.

Aristotle (384 – 322 B.C.)

According to him, man is a part of nature in two ways;

• Firstly , he is the part of the creatures of the God, and
• Secondly, he possesses insight and reason by which he can shape his will.

By his reason man can discover the eternal principle of justice. The man’s reason being the part of the nature, the law discovered by reason is called ‘natural justice’.

Positive Law should try to incorporate in itself the rules of ‘Natural Law’ but it should be obeyed even if it is devoid of the standard principle of Natural Law. The Law should be reformed or amend rather than be broken. He argued that slaves must accept their lot for slavery was a ‘natural’ institution. Aristotle suggested that the ideals of Natural Law have emanated from the human conscience and not from human mind and, therefore, they are far more valuable than the Positive Law which is an outcome of the human mind.

• Natural Law in Roman System

The Romans did not confine their study of ‘Natural Law’ merely to theoretical discussions but carried it further to give it a practical shape by transforming their rigid legal system into cosmopolitan living law.

In this way Natural Law exercised a very constructive influence on the Roman law through division of Roman Law into three distinct divisions namely

• ‘Jus civile’,
• ‘Jus gentium’ and
• ‘Jus naturale’.

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 everyone except a few categories of persons.

Roman lawyers did not bother themselves with the problem 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.

• Natural Law in India

Hindu legal system is perhaps the most ancient legal system of the world. They developed a very logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades the whole body of law. But the frequent changes in the political system and government and numerous foreign invasions, one after the other prevented its systematic and natural growth. Under the foreign rule no proper attention could be paid to the study of this legal system. Many theories and principles of it are still unknown, uninvestigated. However, some principles and provisions can be pointed out in this respect.

According to the Hindu view, Law owes its existence to God. Law is given in ‘Shruti’ and ‘Smritis’. The king is simply to execute that law and he himself is bound by it and if goes against this law he should be disobeyed. Puranas are full of instances where the kings were dethroned and beheaded when they went against the established law.

Medieval Period

Catholic philosophers and Theo logicians of the Middle Ages gave a new theory of ‘Natural Law’. Though they too gave it theological basis, they departed from the orthodoxy of early Christian Fathers. Their views are more logical and systematic.

Thomas Acquinas

His views  may be taken as representative of the new theory. His views about society are similar to that of Aristotle. Social organization and state are natural phenomena.

He defined law as ‘an ordinance of reason for the common good made by him who has the care of the community and promulgated’.

St. Thomas Aquinas gave a fourfold classification of laws, namely,

Law of God or external law,

Natural Law which is revealed through “reason”,

Divine Law or the Law of Scriptures,

Human Laws which we now called ‘Positive law’.

Natural Law is a part of divine law. It is that part which reveals itself in natural reason. Like his predecessors, St. Aquinas agreed that Natural Law emanates from ‘reason’ and is applied by human beings to govern their affairs and relations. This Human Law or ‘Positive Law’, therefore, must remain within the limits of that of which it is a part. It means that Positive Law must conform to the Law of the Scriptures. Positive Law is valid only to the extent to which it is compatible with ‘Natural Law’ and thus in conformity with ‘Eternal Law’.

He regarded Church as the authority to interpret Divine Law. Therefore, it has the authority to give verdict upon the goodness of Positive Law also. Thomas justified possession of individual property which was considered sinful by the early Christian Fathers.

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 rationalism and emergence of new ideas in different fields of knowledge.

Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. His view, in brief, is that political society rests on a ‘social contract’. It is the duty of the sovereign to safeguard the citizens because the former was given power only for that purpose. The sovereign is bound by ‘Natural Law’. The Law of Nature is discoverable by man’s ‘reason’. He departed from St. Thomas Aquinas scholastic concept of Natural Law and ‘reason’ but on ‘right reason’, i.e. ‘self-supporting reason’ of man.

Grotius believed that howsoever bad a ruler may be, it is the duty of the subjects to obey him. He has no right to repudiate the agreement or to take away the power. Although there is apparent inconsistency in the Natural Law propounded by Grotius because on the one hand, he says that the ruler is bound by the ‘Natural Law’, and, on the other hand, he contends that in no case the ruler should be disobeyed, but it appears that Grotius’s main concern was stability of political order and maintenance of international peace which was the need of the time.

Hugo Grotius is rightly considered as the founder of the modern International Law as he deduced a number of principles which paved way for further growth of International Law. He propagated equality of State and their freedom to regulate internal as well as external relations.

Thomas Hobbes (1558 – 1679)

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 that could protect their lives and property. Thus Hobbes was a supporter of absolute power of the ruler and subjects had no rights against the sovereign.

Though he makes a suggestion that the sovereign should be bound by ‘Natural Law’, it is not more than a moral obligation. It would thus be seen that Hobbes used Natural Law theory to support absolute authority of the sovereign. He advocated for an established order.

During the Civil War in Britain, his theory came to support the monarch. In fact, it stood for stable and secure government. Individualism, materialism, utilitarianism and absolutism all are interwoven in the theory of Hobbes.

John Locke (1632 – 1704)

According to Locke, the state of nature was a golden age, only the property was insecure. It was for the purpose of protection of property that men entered into the ‘social contract’. Man, under this contract, did not surrender all his rights but only a part of them, namely, to maintain order and to enforce the law of nature. His Natural Rights as the rights to life, liberty and property he retained with himself.

The purpose of government and law is to uphold and protect the Natural Rights. So long as the government fulfils this purpose, the laws given by it are valid and binding but when it ceases to do that, its laws have no validity and the government may be overthrown. Locke pleaded for a constitutionally limited government.

The 19th century doctrine of ‘laissez faire’ was the result of individual’s freedom in matters relating to economic activities which found support in Locke’s theory. Unlike Hobbes who supported State authority, Locke pleaded for the individual liberty.

Jean Rousseau (1712 – 1778)

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 so called ‘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 named as ‘general will’. Therefore, it is the duty of every individual to obey the ‘general will’ because in doing so he directly obeys his own will.

The existence of the State is for the protection of freedom and equality. The Sate and the laws made by it both are subject to ‘general will’ and if the government and laws do not conform to ‘general will’, they would be discarded. Rousseau favored people’s sovereignty. His ‘Natural Law’ theory is confined to the freedom and equality of the individual. For him, State, law, sovereignty, general will etc. are interchangeable terms.

Immanuel Kant (1724 – 1804)

The Natural Law philosophy and doctrine of social contract was further supported by Kant and Fichte in 18th century.

They emphasized that the basis of social contract was ‘reason’ and it was not a historical fact. Kant drew a distinction between Natural Rights and the Acquired Rights and recognized only the former which were necessary for the freedom of individual. He favored separation of powers and pointed out that function of the State should be to protect the law. He propounded his famous theory of Categorical Imperative in his classic work entitled Critique of Pure Reason.

Kant’s theory of Categorical Imperative was derived from Rousseau’s theory of General Will. It embodies two principles:-

• 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.
• The second principle expounded by Kant was the doctrine of ‘autonomy of the will’ which means an action emanating from reason but it does 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.

Modern Period

The Natural Law theory received a setback in the wake of 19th century pragmatism. The profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on the ground that it was ambiguous and misleading. The doctrines propagated by Austin and Bentham completely divorced morality from law.

In the 19th century, the popularity of Natural Law theories suffered a decline. The ‘Natural Law’ theories reflected, more or less, the great social economic and political changes which had taken place in Europe. ‘Reason’ or rationalism was the spirit of the 18th century thought. A reaction against this abstract thought was overdue. The problems created by the new changes and individualism gave way to a collectivist outlook.

Modern skepticism preached that there are no absolute and unchangeable principles. Priori methods of the natural law philosophers were unacceptable in the emerging age of science. The historical researches concluded that social contract was a myth. All these developments shattered the very foundation of the Natural Law theory in 19th Century. The historical and analytical approaches to the study of law were more realistic and attracted jurists. They heralded a new era in the field of legal thought. In this changed climate of thought it became difficult for the ‘Natural Law’ theories to survive.

Therefore, though solitary voices asserting the superiority of ‘Natural Law’ are still heard, the 19th century was, in general, hostile to the ‘Natural Law’ theories.

• 20th Century Revival of Natural Law

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took place. It was due to many reasons:

• First, a reaction against 19th century legal theories which had exaggerated the importance of ‘positive law’ was due and theories which over-emphasized positivism failed to satisfy the aspirations of the people because of their refusal to accept morality and ‘reason’ as element of law;
• Second, it was realized that abstract thinking or a priori assumptions were not completely futile; Third, the impact of materialism on the society and the changed socio-political conditions compelled the 20th century legal thinkers to look for some value-oriented ideology which could prevent general moral degradation of the people.
• The World War 1 further shattered the western society and there was a search for a value-conscious legal system.

All these factors cumulatively led to revival of Natural Law theory in its modified form different from the earlier one. The main exponents of the new revived Natural Law were Rudolf Stammler, Prof. Rawls, Kohler and others.

Rudolf Stammler (1856 – 1938)

Stammler defined law as, “species of will, others-regarding, self-authoritative and inviolable”. For him, a just law was the highest expression of man’ social life and aims at preservation of freedom of individuals. According to him, the two fundamental principles necessary for a just law were:

• principles of respects, and
  • 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 purposes of all.

Professor Rawls

Professor Rawls made significant contribution to the revival of Natural Law in the 20th century.

He propounded two basic principles of justice, namely,

• equality of right to securing generalized wants including basic liberties, opportunities, power and minimum means of subsistence; and
• 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 morality and culturally in course of evolution. He tried to free the 19th 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.

The approaches of these philosophers are very scientific and logical and are free from the right and a priori principles.

Lon Luvois Fuller (1902 – 1978)

He rejected Christian doctrines of Natural Law and 17th and 18th century rationalist doctrines of Natural Rights. He did not subscribe to a system of absolute values. His principal affinity was, with Aristotle. He found a “family resemblance” in the various Natural Law theories, the search for principles of social order. He believed that in all theories of Natural Law it was assumed that “the process of moral discovery is a social one and that there is something akin to a ‘celebrative articulation of shared purposes’ by which men come to understand better their own ends and to discern more clearly the means for achieving them.”

To fuller, the most fundamental tenet of natural law is an affirmation of the role of reason in legal ordering.

Hart

Hart, the leader of contemporary positivism, though critical of Fuller’s formulation, has attempted to restate a national law position from a semi-sociological point of view. Hart points out that there are certain substantive rules which are essential if human beings are to live continuously together in close proximity.

“These simple facts constitute a case of indisputable truth in the doctrines of natural law”.

Hart places primary emphasis here on an assumption of survival as a principal human goal. “We are concerned”, he says, “with social arrangements for continued existence and not with those of suicide clubs. There are, therefore, certain rules which any social organization must contain and it is these facts of human nature which afford a reason for postulating a ‘minimum content’ of Natural Law”

Finnis

Finnis who in his writing ‘Natural Law and Natural Rights’, restated the importance of natural law. For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquarius, Finnis sets up the proposition that there are certain basic goods for all human beings.

The basic principles of Natural Law are pre-moral. These basic goods are objective values in the sense that every reasonable person must assent to their value as objects of human striving.

HISTORICAL SCHOOL OF JURISPRUDENCE

It may be defined as history of fundamental principles of a legal system. Historical school of Jurisprudence argued that the law is the exaggerative form of social custom, economic needs, conventions religious principles, and relations of the people with society. The historical school follows the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that the law should be according to the changing needs of the people. And everyone understand their own need better than anyone else.

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

Reasons for the Origin of Historical School of Jurisprudence

The Historical School believe that law is made from people according to their changing needs. Habits and customs are the main sources of the Historical School of Jurisprudence. According to Dias, Historical school arose as a reaction against the natural law theories.

• The reasons for the emergence of this school are:
• It’s a reaction against the natural law theories.: Natural school of law believes that the law is originated from some divine power. Natural law is also called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality and intention of God. Indian constitution has some relevance of the natural law in its articles. Historical school of Jurisprudence focuses on the formation of law by people not by some divine origin. 
• It opposes the ideology of the analytical school of jurisprudence. : Analytical school of jurisprudence is also called Austinian School. It is established by John Austin. The subject matter of Analytical school of Jurisprudence is positive law. It focuses on the origin of law the judges, state and legislators. Historical School laid emphasis on the formation of law by people through customs and habits, not by the judges and superior authority.
• Rationalism in Europe: the spread of the spirit of rationalism in European people was the reason for the emergence of this school. This school emphasis on the development of law, take into account the historical facts.

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

Montesquieu

According to Sir Henry Maine, the 1^st Jurist to adopt the historical method of understanding the legal institution was Montesquieu. He laid the foundation of the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of the climate, local situation, accident or imposture”. He was of the view that law must change according to changing needs of the society. He did not establish any theory or philosophy of the relation between the law and society. He suggested that the law should answer the needs of the place and should change according to time, place and needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book, he represents his beliefs in political Enlightenment ideas and suggests how the laws are required to modify according to the needs of people and society.

Savigny (1779-1861)

Savigny is regarded as a father of the Historical school.  He was a German Philosopher, in 1810 he went to work as a professor at the University of Berlin. In 1803 he established his reputation with a book The Jus Possessionis of the Civil Law.

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

• Savigny’s theory is often  summarized as follows:

1. Law is found and not made.
2. According to him, law is Volkesgeist.

Volkesgeist = Volkes + Geist i.e.

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

Therefore, people Consciousness is Law

1. That may be a matter of unconscious and organic growth. No efforts are needed to make the law.
2. Law cannot be of universal validity nor be constructed on the basis of certain rational principles or eternal principles. Savigny argued that law is like the language having its own national character. So, it can’t be universally applied and varies according to the people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the product of general consciousness of the people or will. The concept of Volksgeist was served as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal system. Unless they support the general will of the people.

Basically, Savigny was of the view that law should not be found from deliberate legislation but should be made and arises out of the general consciousness of the people.

Criticism of Savigny’s theory  

1. Inconsistency within the theory: He emphasized the national character of law, but at the equivalent time he recommended a way how the Roman law are often adapted.
2. Customs not always supported on popular consciousness: Savigny’s view is whole not perfectly sound, because many customs originated just for the convenience of a powerful minority. Sometimes, customs completely against one  another exist within the different parts of the country which can’t be reflecting the spirit of the whole community.
3. He ignored other factors that influence law: Another criticism against him was ‘so occupied with the source of law that nearly forgot the stream’. The creative function of the judge was also ignored by the Savigny’s theory.
4. Many things were unexplained: Certain traits, like mode of evolution and development weren’t explained by the Savigny.

Georg Friedrich Puchta (1798-1846)

Puchta, a German jurist, was Savigny’s most popular student. He was convinced that the law was the result of people’s collective consciousness and the manifestation of their spirits. Law will not evolve in this way, according to Puchta, if it is formed without prior considerations of the past, historic culture, and traditional practices. This would have established a clear situation rather than solving an issue.

Puchta’s ideas were acknowledged as more reasonable and enhanced after a period of progress. He began by stating that men have always lived in oneness since the dawn of time. This unity could be physical as well as spiritual, focused on people’s collective will.

Self-interest, according to Puchta, caused conflicts. For the sake of maintaining peace and actual evolution law, he argued that general will should take precedence over individual will.

Furthermore, the state’s position was discussed, which is extremely important. The state prioritized the general will and interest of the people while downplaying individual interests, resulting in a functional system.

“Neither the people nor the state alone can make and formulate laws,” was Puchta’s main thought.

Puchta’s Contribution

He discussed two dimensions of human will, as well as the origins of the state.

Even though Georg Friedrich Puchta was Savigny’s student, Puchta improved Savigny’s views and gave them a better logical interpretation.

Sir Henry Maine (1822-1888)

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

Major Works by Sir Henry Maine

• The first work of Maine ‘Ancient Law’ was published in 1861. 
• He also wrote Village Communities (1871),
• Early History of Institutions (1875) 
• Dissertations of Early Law and Custom (1883). 

Maine studied the Indian legal system deeply as he was law member in the Council of the Governor–General of India b/w 1861 to 1869. Maine’s ideas were incorporated by the best things in the theories of Savigny and Montesquieu and he avoided what was abstract and unreal Romanticism.

Maine favored legislation and codification of law, unlike Savigny.

Maine describes the development of law in four stages:

• Therris stage

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

• Custom

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

• Aristocracy stage

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

• Codification stage

In the fourth and last stage, the law is codified and promulgated.

Static and Progressive Society

• Static societies

Societies which does not progress and develop their legal structure after the fourth stage of development of law are Static society. Static societies don’t progress beyond the era of codes. 

• Progressive Society

Societies which go on progressing after the fourth stage of development of law are Progressive Societies. They develop their laws with the help of these instruments:

1. Legal Fiction: Legal Fiction changes the law according to the needs of the society without making any change in the letters of the law. Legal fiction harmonizes the legal order but made the law difficult to understand. 
   1. Equity: According to Maine, “Equity is a body of rules existing by the side of the original civil law & founded on distinct principles”. Equity helps to remove rigidity and injustice.
   1. Legislation: The legislation is the most effective and desirable method of legal change. Laws will be enacted and became operative officially.

Legislation is made up of 2 words:

LEGISLATION = LOGIS + LATIS i.e.

( Law Making) = (Law) + (Making)

Status to Contract

Maine is known to have commented on “status” and “contract”. He said that “the movement of progressive societies has hitherto been a movement from status to contract”. In explaining this statement, Maine said that in early times an individual’s position in his social group remained fixed; it was imposed, conferred or acquired. He just stepped into it. He accepted such fate as he found it. He could do nothing about it.

Later on, however, there came a time when it was possible for an individual to determine his own destiny through the instrumentality of contract. No longer was anything imposed on him from external forces; he was now in charge: from slavery to serfdom, from status determined at birth, from master-servant relationship to employer – employee contract.

Criticism:

Maine is criticized for oversimplifying the nature and structure of early society for the following reasons: Early society does not show an invariable pattern of movement from the three-stage development of law – from personal commands and judgments of patriarchal rulers through law as custom upheld by judgments to law as code. The so-called rigidity of the law has repeatedly be challenged by contemporary anthropologists who are of the opinion that primitive peoples were adaptable and their laws flexible.

• Return to Status

Also, there were matriarchal societies just as there were patriarchal societies. Furthermore, it has been observed that status does not necessarily gravitate to contract. Rather, the opposite development has been possible. For example, social welfare legislation in advanced countries is status-based. In the U.S., “affirmative action”, a policy that is predicated on Afro-Americanism, is status-based. Also, in Canada and UK, the status of a single mother is recognized in law. Conclusion: Although Maine lived up to his historical commitment, he overlooked the dynamics that have characterized societies across ages.

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as founding the father of the sociological school of law.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the Comte and he described Sociology as a positive science of social facts. He said that Society is like an organism and It could progress when it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which human society maintains itself and progresses.

The main subject matter of sociology is Society. Sociology is the study of society, human behavior, and social changes.  And jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This school laid more emphasis on the legal perspective of every problem and every change that take place in society. Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology. Every problem or concept has two different aspects. One is sociological view and other is a legal aspect. For example Sati.

Background Of Sociological Jurisprudence

The factors which led to the establishment of sociological school are as follows:

• The 19^th century witnessed a shift of emphasis from the individual to the society. This happened as a result of the shocking consequences resulting from the Laissez faire doctrine.
• The Historical  School which was a reaction to the intense individualism of the 19^th century by its emphasis on the Volkgeist spirit of the people – indicated that law and the social environment in which it develops are intimately related. This idea was worked out by the jurists of sociological school.
• Prior to the 19^th Century matters like health, welfare, education etc were not the concern of the state. In the 19^th Century because of the adverse effects of laissez faire doctrine, the state became more and more concerned with numerous matters encompassing almost all aspects of human life and welfare. This implied regulation through law, which compelled legal theory to re-adjust itself so as to take account of social phenomena.
• Also there was a dire need to study law not in near abstraction, but in its functional and practical aspects. By this time the shortcomings of purely formal analysis (as propounded by analytical jurists) were being felt. Therefore the Sociological school of jurisprudence was established as a reaction against too much theorising of the law.
• Prior on account of economic and social conflict towards the beginning of 20^th century led to growing disbelief  in the eternal principles of natural law of which had until now placed an idea of harmony before the individual. To solve and bring harmony between the people, a sociological school of thought was inspired.
• Revolutions and social and social unsettling not only upsetted any complacency (self satisfaction) about social stability, but also provoked anxiety about the shortcomings of the law.  Sociological jurists wanted to overcome these shortcomings.

These factors contributed to the Rise Of The Sociological School.

The main feature of Sociological school of law

• Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content.
• They consider law as a social institution essentially interlinked with other scientists and the direct impact of the law on society with its formation according to social needs.
• Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence.
• Sociological jurists describe the perception of the law in different ways like the functional aspect of law or defining the law in terms of courts rulings and decisions with a realistic approach of law.

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of jurisprudence. He was of the view that the legal process is somehow influenced by the social condition of society. He also recognized the importance of history as a means for understanding the structure of society. And explained the importance of studying the history of society before formulating the law for that society.

In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each soul, to its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”

Eugen Ehrlich (1862-1922)

Ehrlich another eminent jurist of the sociological school primarily expounded the social basis of law. Like Savigny, he believed in the spontaneous evolution of law but he did not hang on to the past but conceived law in the context of existing society and thus evolved his theory of living law.

According to Ehrlich, the institution of marriage, domestic life, heritage, possession, contract, etc. governs society through living law which dominates human life. By living law, he meant the extra-legal control that controls my social reality. The central point of Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law.

He says, “at present as well as at any other time, the center of gravity of legal development lies not in legislation nor in juristic science, nor in judicial decisions, but in the society itself.” Hence the living law is the fact that governs life and a proper study of law requires the study of all the social circumstances in which the law functions in society. A statute that is habitually disregarded is no part of living.

The use of the word ‘sociological jurisprudence’ means that the law should be made in society, and its needs should be given more attention. To achieve this end, a very close study of the social conditions of society, in which law is to be worked, is indispensable.

For example: There may be some enactments enforced in the sense that courts may apply them in the decisions in any issue but a community may ignore the enacted laws and lives according to the rules created by their mutual consent, like dowry system in India.

Inhering (1818-1892)

Inhering was a German jurist and described as ‘the father of modern sociological jurisprudence’.

His main work is ‘The spirit of law’. But he is very well known for his principal:

Wor Der Zweck in Reett (1877-83) = ‘Law as a means to an End’.

He rejected the Analytical and Historical jurisprudence as the jurisprudence of conceptions. He says that the law is coercion organized in Act by the state. It is a way to achieve a proper balance between social and individual interests. It is through two impulses- coercion, and reward that society compels individuals to subordinate selfish individual interests to social purposes and general interests. Thus his insistence on the need to reconcile competing individuals and social interests made him ‘the father of the modern sociological jurisprudence that inspired jurists like Roscoe Pound and others.

• He described the law In following aspects:
• Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society.
• Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, “law is coercion organised in a set form by the state”, which means that he justified coercion by the state for the purpose of social welfare.
• Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that’s the reason that Ihering theory is also known as the theory of “Social Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled by the state by means of coercion, reward and duty for achieving social control for the welfare of society. Friedman said that “Ihering was declared as the father of modern sociological jurisprudence because of his concept of law as one of the important effective factors to control social organisms.”

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. His major works are:

• Spirit of the common law.
• An introduction to the philosophy of law.
• Interpretation of legal history.
• Law and morals.
• The formative era of American law.
• Administrative law.
• Social contract through law.
• The task of law.

He treated law as a means of affecting social control and his contribution to jurisprudence is great.

Theory of Social Engineering

The American Jurist, Roscoe Pound propounded the theory of social engineering. According to him, as Engineers need to use their engineering skills to manufacture new products, Social Engineers too need to develop a type of structure in the society which provides utmost happiness and minimum friction. He said that everyone has their individual interests and consider it to be supreme to all other interest. The law focuses on seeking a balance between the interests of the people.

Article 19(1)(a) of the Constitution of India can help us understand this ‘balancing element’ in a better way. Although, Article 19(1)(a) guarantees the ‘Rights to speech and expression’, it also gives the State the liberty to put reasonable restrictions contained in Article 19(2).

With the help of law, Social Engineering aims at balancing the conflicting interest of the individual and the state. Law helps in solving conflicting interest and problems in the society. This body of knowledge helps carrying out social engineering.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping of the interests, he put boundaries and divide the kinds of interests.

• Classification of Interest

Jural Postulates by Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. He has mentioned five kinds of jural postulates:

• In a civilised society, man must be able to assume that others will not commit any intentional aggression on him.
• In a civilised society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour.
• In a civilised society, man must be able to assume that those with whom they deal as a number of societies will act in good faith.
• In a civilised society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others.
• In a civilised society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilised life and with the changes in society, the jural postulates may emerge or originate in society.

• Criminal: An interest of protection from any intentional aggression. For Example, Assault, Wrongful restraint, Battery, etc.
• Law of Patent: An interest of securing his own created property by his own labour and hard work. E.g. agricultural land, any music or artistic things.
• Contract : The interest in making the contract and getting of reasonable remedy or compensation when his right violate
• Torts: Protection against Defamation and unreasonable injury caused by the negligent act of another person.
• Strict Liability: Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of another person. It is the duty of other people to keep his/her things with his/her boundary and should look after that thing to avoid injury to other people. 

Criticism:

Despite Pound’s great contribution to sociological jurisprudence and his emphasis on studying the actual work of law in society, his theory suffers from some shortcomings. Pound’s theory of social engineering has been criticised on various grounds.

It has been argued that the classification of interests by the Pound is in the nature of a catalog, in which additions and changes must be made continuously that are neutral in relation to the value and priority relative to the neutral value. Pound’s theory of social engineering has been criticized for its use of the term engineering, which equates society to a factory like a mechanism. Law is a social process rather than the result of applied engineering. It is also not right to equate society with a factory because the former is changing and dynamic in nature while the latter is more or less stable. Again, Pound’s emphasis on engineering ignores the fact that law evolves and develops in society according to social needs and wants that for which law can develop in society according to social needs and for which either in law approval or rejection may occur.

A general criticism against Pound’s theory is about his use of the word ‘engineering’ because it suggests a mechanistic application of the theory to social needs, the term “engineering” is used by Pound as a metaphor to indicate the problems that law has to face, the objectives to be met and the method one must adopt for this purpose.

Duguit ( 1859 – 1928)

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law) who made a substantial contribution to sociological jurisprudence in the early twentieth century. He was much influenced by August Comte’s theory of law as a fact that denounced individual rights of men and subordinated them to social interest and Durkheim’s work “Division of Labour in Society”. In this theory, he made a distinction between the two kinds of needs of men in society namely:-

• Common needs of the individuals who are satisfied by mutual assistance,
• Diverse needs of individuals who are satisfied by the exchange of services.

Therefore, the division of labour is the pre-eminent fact that Duguit called “Social Solidarity”. In his theory, he explained the social cooperation between individuals for their needs and existence.

• Theory of Social Solidarity:-

Social Solidarity is the feeling of unity. The term ‘Social Solidarity’ represents the strength, cohesiveness, collective consciousness, and viability of the society. Solidarity is nothing more or less than the fact or interdependence uniting the members of human society, and particularly the members of a social group by reason of the community of needs and the division of labour.

Law is an instrument of social solidarity and cohesion. Because man cannot live apart from society, as a social animal. Law is not a body of rights. The only real right of man in society is to do his duty. All human being’s activities, and organizations should be directed to the end of ensuring the smoother and fuller working of men with men.

This Duguit calls the principle of social solidarity. For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity.  

Implications of Duguit’s Theory

• David attack on sovereignty; Minimization of state functions-: Duguit attacked the myth of state sovereignty. Social solidarity is the touchstone of judging the activities of individuals and all organisations. State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals who govern. Therefore, the state stands in no special position of privilege and it can be justified only so long as it fulfills its duty.

Duguit’s story of minimization of state function leads him to deny any arbitrary power to legislators. According to him “legislator does not create law but merely gives expression to judicial norms formed by the consciousness of the social group”.

• No Distinction Between Public And Private Rights: Duguit’s views on state and its functions led him to deny the distinction between private and public law. According to him both are to serve the same end i.e. ‘Social Solidarity’. Therefore, there is no difference in their nature. Such a division will only elevate the state above the rest of the society which Duguit’s theory never accepts.
• No Private Rights : Another important point in Duguit’s theory is that he denies the existence of private rights. He says that “the only right which any man can possess is the right to always do his duty“. Individuals working in any capacity are the parts of the same social organism and each is to play his part in furtherance of the same end i.e. ‘Social Solidarity’.

Duguit’s Contribution

• His Idea Of Justice Is In Social Terms

Despite defects and weaknesses in Duguit’s theory, his contribution and influence was great. His approach is very comprehensive and sincere. He shaped a theory of justice out of the doctrines of sociology. Many jurists later, proceeding from different premises, reached similar conclusions as Leon Duguit. National socialists and Soviet Jurists  both adopted many of the principles from Duguit’s theory but interpreted it differently so as to suit their purposes.

Inspired by the Duguit’s  emphasis on the importance of ‘Group‘ many later jurists such as Hauriou and Renard propounded Institutional Theory.

ECONOMIC INTERPRETATION OF LAW

By the end of the nineteenth century, economics had established itself as a progressive social science. Legal scholars and progressive economists such as Roscoe Pound criticized the US courts’ assumptions that legislation protecting workers violated a constitutional standard of substantive due process. The philosophy of the Economic School of Jurisprudence dates from the seventeenth century and reflects the connection between law and economy. The legal system and economics of a country, according to Scottish jurists, are inextricably linked. Because the idea of political economics was an important element of Adam Smith’s Jurisprudential philosophy, it was widely acknowledged. Any economic study of a situation yields better outcomes than any other theory in which analytical techniques fail.

• Economics:

Economics, is the science of wealth. Broadly, it deals with the production of wealth and promoting maximisation of wealth. Economics identifies the important factors of production as the source of wealth creation. It explains the necessity and hurdles faced in the society in the proper distribution of wealth on the parameters of utility, optimality and efficiency. Its ultimate end is promoting maximisation of satisfaction. Its ultimate aim, as is the case of all disciplines , is the welfare of the society.

• Jurisprudence

Jurisprudence, on the other hand,  is the science of law. In general, it deals with making of the law, mechanisms for its enforcement and maximisation of justice. Jurisprudence identifies the important sources of law, and examines their relative merits and demerits, the role played and being played by the different sources of law and compares with the reality in the contemporary society. Its ultimate objective is ensuring justice in the society , its realisation and maximization. Jurisprudence is the study of conceptualisation, categorisation and correlation of the legal principles, both ‘is’ as well as ‘ought’ with the ultimate aim of conceiving a legal system that makes justice prevalent in the society. Its aim, ultimately, is the welfare of the society.

Law and Economics are thus interlinked with the end of both the disciplines being “welfare” of the mankind.

• Basis of economic analysis of law

Economic Analysis of law is laid on the foundation that a human being is a rational maximizer of his ends or his satisfactions in life. The human being is driven by his self-interest. Self-interest is different from selfishness. The expression Self-interest is sometimes used to include both one’s own happiness and the other’s misery.

Economic Analysis of Law is grounded on the philosophy of “utilitarianism”.

Utilitarianism – propounded by – Jeremy Bentham.

His general view on utilitarianism is aptly expressed in this classic passage :

“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the other hand the standard of right and wrong , on the other the chain of causes and effects, are fastened to their throne. The principle of utility recognises this subjection and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason , in darkness instead of light”.

Utilitarianism thus looks to the future. Its concern is maximisation of happiness or welfare or something that is good.

 Two forms of utilitarianism

Criticism: Prof. H.L.A. Hart criticised utilitarianism. According to him, utilitarianism treats individual persons equally, but only by effectively treating them as having no worth, for their value is not as persons but as experiences of pleasure or happiness. Separate individuals are important to utilitarians only in so far as they are ‘ the channels where what is of value is to be found’. The analogy used by utilitarians, of a rational single individual prudently sacrificing present happiness for later satisfaction.

Chicago School of Law

The Chicago school of law and economics has long been connected with legal economics. The notion that choices might be based on intuition and imprecise moral convictions or on scientific evidence is the beginning point for economic analysis of legislation. To apply economics to the legal decision-making process, the logic behind the economic study of law is very straightforward. Economic analysis of law is now considered one of the main tendencies in modern jurisprudence. The Chicago method incorporates both positive and normative legal philosophy. It asserts that law is built on the efficiency principle and that judges consider efficiency enhancement as the primary goal of the law, even if they use other terms like justice. Economic analysis of law is now considered one of the main tendencies in modern jurisprudence.

• It implies that individuals are rational and that they maximize their happiness in both non-market and market situations. A utility function might be used to describe their preferences. If it enhances his benefit, the “economic man” may be entirely reasonable despite breaching legal standards.
• The judicial system’s decision-making process should resemble that of the economical market. It implies that the law should be interpreted in terms of economic efficiency.

Teubner’s Theory

According to Teubner, law encodes legality/illegality information, whereas economy encodes utility/non-utility information. Both systems are completely self-contained, yet some intellectual impact is conceivable during the decoding and translation of data.

Sanctioning is an example of such a process of translating legal information into economic language. When such logic is circulated inside the legal system of communication, it results in some sort of “economization” of the legal system. “Doctrine of efficient breach,” according to Teubner, is an instance of such a procedure.

• Efficient breach theory = the idea that parties should feel free to breach a contract and pay damages because doing so is more economically efficient than performing under the contract.

Ronald Coase

The contrast between negotiating and management transactions, as emphasized by Commons, was embraced by Ronald Coase. The former related to market exchanges, while the latter referred to economic organizations such as businesses and governments that “supersede” pricing processes. In actuality, the legislation has a broad impact on transaction costs and their distribution. This is the foundation for the normative Coase theorem, which argues that judges should thoroughly consider all economic issues and their ramifications when making legal judgments.

The use of Zero Transaction Costs (ZTC world) made the initial rights allocations meaningless, according to Coase. However, in the actual world, this idea does not hold true.

Example: One can explain the Coase theorem environmental economics using the Coase theorem graph as shown below. It shows the dispute between the polluter and the victim of pollution.

As per the above figure, one can observe that when there is a pollution dispute between the producer of the pollutant and the victim, then-

• Pollutant gets a marginal benefit represented by line ABC.
• The victim gets a marginal disbenefit, as shown by line OBD.
• To reduce the pollution, victims will have to pay an amount equal to what the triangle ECB shows.
• For the Pollutant to continue polluting, it must pay an amount equal to triangle OBE.

Thus, beneficiaries can see that the theorem helps in the amicable resolution of the pollution problem between the polluter and the victim. Moreover, it resolves in an efficient and optimum manner without caring about the nature of the outcome.

J. R. Commons

J.R. Commons presented one of the most influential and pioneering theories on law and economics. His property theory led to a number of generalized insights on the growth of law and economics. He defined “market” as a process that involves the flow of transactions. In this volumetric context, the pricing system was working, which was defined by the disparities between parties.

This imbalance was due to the unequal distribution of economic power in society. The transactions between legal and economic superior and inferior took place within economic institutions rather than in the market. In turn, economic power affected the legal power of institutions, increasing the gap between rich and poor.

Criticism of Economic Jurisprudence

1. Ronald Dworkin was opposed to the acknowledgment of wealth as a fundamental value in society, as well as the reliance of other values and rights distribution on money maximization. The first distribution of rights, according to Dworkin, cannot be instrumental, i.e. based on the efficiency principle, because the argument is harmed by its circularity.
2. The term “property” is commonly used to refer to the object or thing that is owned, but in law, it refers to the owner’s right to that object.
3. Any individual has the right to possess, use, enjoy, and dispose of property which is overlooked in this approach.
4. Not people or objects, but functions, are considered and classified in the generation and distribution of wealth in social economics. As a result, it states that there are wealth creators and consumers, despite the fact that every man is a consumer and virtually every man is a producer to some extent. As a result, it makes no reference to laws.

CLASSICAL SCHOOL OF JURISPRUDENCE

Introduction of Hindu Law

Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.

Sources of Hindu law

There is the two-fold classification of the sources of the Hindu law

• Ancient sources
• Modern sources

Ancient source

Ancient sources are the source that developed the concept of Hindu law in ancient times. It is further classified into four categories

1. Shruti

The term Shruti means what has been heard. It contains the sacred words of the god. This source is considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and helps him in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source containing the knowledge of the law.

There are four Vedas to be specific,

• Rig Veda (containing psalms in Sanskrit to be discussed by the main cleric),
• Yajurva Veda (containing recipes to be presented by the directing minister),
• Sama Veda (containing sections to be recited by diviners) and
• Atharva Veda (containing an assortment of spells and chants, stories, forecasts, apotropaic charms and some theoretical songs).

Every Veda has three sections viz.

• Sanhita (which comprises for the most part of the songs),
• Brahmin (discloses to us our obligations and methods for performing them) and
• Upanishad (containing the quintessence of these obligations).

The shrutis incorporate the Vedas alongside their parts.

1. Smriti

The word smriti derived from smri which has significance to remember, They are utterance and precepts of almighty which have been heard and remembered by rishis from generation to generation. The smrities are divided into

• Dharma sutra (prose) and
• Dharmashatras

The exact number of smritis is not defined but Manusmriti is the earliest one. The rules laid down in Smritis can be divided into three categories viz.

• Achar (relating to morality),
• Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and
• Prayaschit (signifying the penal provision for commission of a wrong).

1. Digest and Commentaries

After smriti’s the next step in the development of Hindu law was the number of commentaries and digest based upon smritis. The commentaries is to interpret the law as laid down in the smriti’s. So a writing of a particular smriti is called commentaries while writing on different smrities is called Digest

They are number of commentaries but main commentaries are

• Daya Bhaga by jimutavahana and
• Mitakshara by Vijanamshwara

Custom

Custom is viewed as the third wellspring of Hindu law. From the soonest period custom (‘achara’) is viewed as the most noteworthy ‘dharma’. As characterized by the Judicial Committee custom connotes a standard which in a specific family or in a specific class or region has from long use gotten the power of law.

Custom is a rule source and its position is close to the Shrutis and Smritis yet utilization of custom beats the Smritis. It is better than composed law. There are sure qualities which should be satisfied for announcing custom to be a legitimate one. They are:-

1. A customs must be continuous in practice
2. A custom should not be vague or ambiguous
3. A  custom must have time antiquity
4. There must be a complete observation of the custom
5. It should be certain and clear
6. A custom must not oppose the public policy which will affect the interest of the general public.
7. Deivanai Achi v. chidambaram (1954) Mad. 667.

In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well established public policy. A customary rule must be in the complete observation of society.

• Laxmi v. bhagwantbuva AIR 2013 SC 1204

In the instant case, the supreme court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.

Onus : Generally when a custom attains the judicial recognition no further proof is required, however in certain cases where the customary practices do not attain the judicial recognition, the burden of proving lies on the person who alleges its existence.

• Munna lal v. Raj Kumar AIR 1972 SC 1493

In the instant case the supreme court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.

Further, the customs have been classified into two categories-

Legal customs

Legal custom is those customs which are enforceable or sanctioned by law. It can’t be deemed invalid until the law itself declares it invalid. There are two types of legal customs.

• Local customs : Local customs are the customs that are practiced in a local area. This type of custom is not highly recognized.
• General customs: General customs are the customs or traditions which are practiced in a large area. This type of custom is highly recognized by people.
• Conventional customs

Conventional customs are customs that are related to the incorporation of an agreement and it is conditional.

Modern Sources of Hindu Law

• Justice, Equity – Equity and Good Conscience

Once in a while it may happen that a question precedes a Court which can’t be settled by the utilization of any current principle in any of the sources accessible. Such a circumstance might be uncommon however it is conceivable on the grounds that few out of every odd sort of certainty circumstance which emerges can have a comparing law administering it.

The ’courts can’t decline to settle the debate without law and they are under a commitment to choose such a case moreover. For deciding such cases, the Courts depend upon the essential qualities, standards and guidelines of fairplay and respectability.

In phrasing, this is known as standards of equity, value and great heart. They may likewise be named as Natural law. This guideline in our nation has delighted in the status of a wellspring of law since the eighteenth century when the British organization clarified that without a standard, the above rule will be applied.

• Legislations

Enactments are Acts of Parliament which have been assuming a significant job in the development of Hindu law. After India accomplished freedom, some significant parts of Hindu Law have been arranged. Not many instances of significant Statutes are

• The Hindu Marriage Act, 1955,
• The Hindu Adoptions and Maintenance Act, 1956,
• The Hindu Succession Act, 1956,
• The Hindu Minority and Guardianship Act, 1956, and so on.

After codification, any point managed by the arranged law is conclusive. The institution abrogates all earlier law, regardless of whether dependent on custom or in any case except if an express sparing is accommodated in the order itself. In issues not explicitly secured by the classified law, the old printed law contains an application.

• Precedents

After the foundation of British principle, the chain of importance of Courts was built up. The tenet of point of reference dependent on the standard of rewarding like cases the same was set up. Today, the choices of Privy Council are official on all the lower Courts in India aside from where they have been changed or adjusted by the Supreme Court whose choices are authoritative on all the Courts with the exception of itself.

Schools of Hindu law

Schools of Hindu law are considered to are the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.

The two major schools of Hindu law are as follows-

• Mitakshara
• Daya Bhaga

1. Mitakshara

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.

Mitakshara is further divided  into five sub-schools namely

• Benaras law school

This law school comes under the authority of the Mitakshara law school and covers  Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.

• Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

• Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where there is the Marathi language is proficiently spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

• Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authorities under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

• Punjab law school

This law school was predominantly established in east Punjab. It had established its own customs and traditions. The main commentaries of this school are viramitrodaya and it established customs.

• Dayabhaga school

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs,  which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• Dattaka chandrika

Who are Hindus?

A person can be called as a Hindu ( Sec 2 of Hindu Marriage Act, 1955), who:

• Is a Hindu by religion in any form.
• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
• Lodge in India.

The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’.

This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from entering the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they originated under Hindu philosophy.

• Hindu by Religion: If any person follows the religion by practising it or by claiming it can be called as a Hindu.
• Conversion and Reconversion to Hinduism: Under the codified Hindu law, any person converted to Hinduism, Buddhism, Jainism or Sikhism can be called a Hindu.

In Perumal vs ponnuswami, explains a person can be called a Hindu by conversion.

In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.

• For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.

Introduction to Muslim Law

• Believes in Unity of God i.e. ‘One God’ Allah
• Messenger of this God is Prophet Muhammad

Sources of Muslim Law

• Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are classified as:

1. Quran

It is the original or primary source of Muslim Law. It is the name of the holy book of the Muslims containing the direct revelations from God through Prophet. The direct express or manifest revelations consist of the communications which were made by the angel, Gabriel, under directions from God, to Mohammed, either in the very words of God or by hints and of such knowledge which the Prophet has acquired through the inspiration (Ilham) of God. All the principles, ordinances, teachings and the practices of Islam are drawn from Quran.  The contents of Quran were not written during the lifetime of the Prophet, but these were presented during the lifetime of Prophet, in the memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are scattered throughout the text. It contains the fundamental principles which regulate the human life. The major portion of the Quran deals with theological and moral reflections. The Quran consists of communications of God; it is believed to be of divine origin having no earthly source. It is the first and the original legislative code of Islam. It is the final and supreme authority.

1. Sunna or Ahadis

The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some practice and precedents of the Prophet, whatever the Prophet said or did without reference to God, and is treated as his traditions. It is the second source of Muslim law. Traditions are injunctions of Allah in the words of the prophet. Where the words of Allah could not supply an authority for a given rule of law, Prophet’s words were treated as an authority because it is believed that even his sayings derived inspiration from Allah.

According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of Allah and came to the Prophet through the angel Gabriel. Such revelations became part of the Quran. On the other hand, the internal revelations were those which were the ‘Prophet’s words’ & did not come through Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations formed part of Sunna. Traditions, therefore, differ from Quran in the sense that Quran consists of the very words of God whereas a Sunna is in the language of Prophet.

Sunna or traditions consists of:

• Sunnat-ul-Qual (word spoken)
• Sunnat-ul-Fail (conduct)
• Sunnat-ul-Tahrir (silence)
• Ijma (Consensus)

With the death of the prophet, the original law-making process ended, so the questions, which could not be solved either by the principles of the Quran or the Sunna, were decided by the Jurists with the introduction of the institution of Ijma. Ijma means agreement of the Muslim Jurists of a particular age on a particular question of law, in other words, it is the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When Quran and traditions could not supply any rule of law for a fresh problem, the jurists unanimously gave their common opinion or a unanimous decision and it was termed as Ijma. Not each and every Muslim was competent to participate in the formation of Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

• Ijma of Companions: The concurrent opinion of the companions of Prophet was considered most authoritative and could not be overruled or modified.
• Ijma of the Jurists: This was the unanimous decision of the jurists (other than companion).
• Ijma of the people or masses: It is the opinion of the majority of the Muslims which was accepted as law. But this kind of Ijma has little value.

Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding on people. Without Ijma, these rules of Islamic law would have been diffused and incomplete. Its principles cover the vast subject. Ijma authenticated the right interpretation of the Quran and the Sunna.

1. Qiyas (Analogical deductions)

The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it means measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’ If the matters which have not been covered by Quran, Sunna or Ijma, the law may be deducted from what has been already laid down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to establish a new law. Its main function is to extend the law of the text, to cases which do not fall within the purview of the text. For  valid Qiyas, the following conditions must be fulfilled:

• The process of the Qiyas can be applied only to those texts which are capable of being extended. The texts should not be confined to a particular state of facts or rules having a specific reference.
• The analogy deduced should not be inconsistent with the dictates of the Quran and authority of Sunna.
• The Qiyas should be applied to discover a point of law and not to determine the meanings of the words used in the text.
• It must not bring a change in the law embodied.
• If there is a conflict between two deductions, a jurist is free to accept any one of the deductions from a text. Hence one analogy cannot abrogate the other.

Like Hindu law secondary sources or modern sources of Muslims laws are

• Judicial decisions
• Legislation
• Justice equity and good conscience

Schools of Muslim law

Schools have no territory or regional like Hindu law. The schools of Muslim law can be extensively ordered into two classifications:

• Sunni Schools
• Shia Schools

1. Sunni Schools

In Sunni group, there are four significant schools of Muslim law which are as per the following;

1. Hanafi School

Hanafi School is the first and the most well known schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which depended on the name of the city of Koofa in Iraq. Afterward, this school was renamed as Hanafi School dependent on the name of its organizer Abu Hanafee.

The Prophet had not permitted his words and conventions from being composed, the Hanafi School depended on the traditions and choices of the Muslim people group. In this way, Hanafi School classified the point of reference which in predominance during that time among the Muslim people group.

The originator of this school Abu Hanafee had not recorded any book for laying the standards of this school and hence this school had developed through his two supporters Imam Muhammed and Imam Abu Yousuf. Them two provided for the Juristic inclination (Isthi Hasan) and arranged the Ijma’s of that period.

This school turned out to be generally spread in different regions, thus, most of Muslims in nations, for example, India, Pakistan, Syria, and Turkey have a place with Hanafi School. In India, since most of Muslims are from Hanafi School, the Courts choose the instance of a Sunni Muslim according to the Hanafi School except if it is indicated that they have a place with different schools.

In Hanafi School, Hedaya is the most significant and definitive book which was made over a time of 13 years by Ali receptacle Abu Baker al Marghinani. This book gives laws on different angles aside from the law of legacy. Ruler Warren Hasting attempts to make an interpretation of the Hedaya to English. He named numerous Muslim Scholars to interpret the book.

In any case, the Sirajiyya is considered as the legitimate book of the Hanafi Law of Inheritance. The book is composed by Sheik Sirajddin, and the principal English interpretation is composed by Sir William Jones.

• Maliki School

This school gets its name from Malik-receptacle Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his devotees prospered with Hanafi Schools. He found around 8000 customs of the Prophet however went along just around 2000 of them. At the point when the supporters of Imam Abu Haneefa classified their law dependent on Ijma’a and Isthihsan.

The maliki school gives the significance to the Sunna and Hadis while the Hanafi school gives the significance to the individuals and Isthihsan. According to Maliki School and Law, they infrequently acknowledge the Ijma’a. According to the Law, the individual gave Fatwa testing the sovereign authority of Khaleefa, he confronted ill will and of absence of help from Muslim governments. Accordingly, this Maliki school didn’t get a lot of prevalence.

In India, there are no adherents of this school however when the Dissolution of Muslim marriage act 1939 came in the image, a portion of the laws and arrangement of this school was considered as they are giving a bigger number of rights to the ladies than some other school. In Hanafi School, if the ladies do not get any updates on her better half, she needs to hang tight work 7 years for Dissolution of the marriage, while in Maliki School the ladies need to sit tight 2 years for Dissolution of the Marriage.

Mu-atha of Imam Malik is considered as the most definitive book of the Maliki School. This book is additionally the main book composed on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

• Shaffie School

The Shaffie School gets its name on the name of Muhammad canister Idris Shaffie, his period was between 767 AD to 820 AD. He was the understudy of Imam Malik of Madeena. At that point he began working with the supporters of Imam Abu Haneefa and went to Khoofa.

He finishes up the thought’s and the hypotheses of Hanafi School and Maliki School in an amicable way. The Imam Shaffie was considered as one of the best legal scholar of Islam. He made the old style hypothesis of the Shaffie Islamic Jurisprudence.

As indicated by this school, they considered Ijma’a as the significant wellspring of the Muslim law and give legitimacy to the traditions of the Islamic individuals and follows more techniques for Hanafi School. The fundamental commitment of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the main definitive book of Islamic Jurisprudence. In that book they talk about and decipher the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal thinking) Isthihsan (Juristic inclination) and Ikhthilaf (Disagreement) in isolated part in his book Risala. His other book Al-Umm is the expert on Fiqh (study of lifestyle).

The devotees of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

• Hanbali School

The Ahmad receptacle Hanbal is the author of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the pupil of Imam Shaffie and supports Hadis. He unequivocally restricted the Ijthihad strategies. He presented the hypothesis of following the foundation of Sunna and Hadis and attempt to find the solution all his inquiry. His hypothesis was to come back to the Sunna of the Prophet. At the point when the Imam Shafie left for Baghdad, he proclaimed that the Ahmad container Hanbal was the just one after him who is the better law specialist after him. The adherents of Hanbali school found in Syria, Phalastine and Saudi Arabia.

• Shia Schools

According to Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They appreciate the political force just in Iran however they don’t have the larger part in that state moreover.

1. Ithna-Asharis

These schools depend on the accompanying of Ithna-Ashari laws. The supporters of these schools are for the most part found in Iraq and Iran. In India likewise there is most of the shia muslim who follows the standards of the Ithna-Asharis School. They are viewed as political quietists. This school is considered as the most predominant school of the shia muslims. The ja’fari fiqh of the shias much of the time indistinct from at least one of the four sunni madhahib, with the exception of mutah is considered as the legitimate marriage. The individuals who follow the Ithna Asharis school accept that the remainder of the Imams vanished and to be returning as Mehdi(Messiah).

• The Ismailis

As per Ismailis school, in India there are two gatherings, the Khojas or Western Ismailis speaks to the adherents of the current Aga Khan, who they considered as the 49^th Imam in this line of Prophet, and the Bohoras for example the Western Ismailis are isolated into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the devotees of this school. It is viewed as that the supporters of these schools have unique information on strict tenet.

• Zaidy

The adherents of this school are not found in India however are most extreme in number in South Arabia. This faction. Of the Shia school is the most predominant among all in Yemen. The devotees of these schools are considered as political activism. They regularly dismiss the twelve Shia school ways of thinking.