Analytical School of Jurisprudence

1. Jeremy Bentham:
   John Austin propounded the theory of positive law but the establishment was laid by Jeremy Bentham, which is why he can be said to be the author of the analytical school of law. He believed in testing law on the basis of utility principle and how legal actions should be approved or disapproved based on their effect on the maximization or minimization of happiness of the people. He considered people to be governed and ruled by the principles of pleasure and pain.
   
   He claimed that if people had the liberty of choosing what they desire, they will attain the maximum possible happiness and consequentially deliver the best possible results to the society and the state, owing to which he propounded the idea of a Laissez-Faire kind of state where the man has complete liberty over his actions without any hurdles obstructing him.
   
   Moreover, he divided jurisprudence into two kinds:
   
   1. Expository Jurisprudence: which deals with the law as it is
   2. Censorial Jurisprudence: which deals with law as it ought to be
      
      His examination of censorial jurisprudence is indicative of the fact that natural law has not yet completely disappeared and which is why he proffered utility as the primary governing principle.
      
      Praise
      Bentham has provided a vast number of contributions due to which his ear is also known as the Benthanite Era in the legal history of England. Furthermore, his philosophy that:
      Justice is nothing by social happiness or the happiness of the majority of people seems like a great moral of ideal for the welfare of states. He also moved on to introduce legal positivism and treated the study of law as a science of investigation in itself through scientific methods of reasoning and experimenting.
      
      Criticism
      Many claim that his approach fails to balance the individual interests of the people with the collective interests of the society and that the concept of pleasure and pain cannot be the final test as these two are not the final goals of laws and legislations. He also faced criticism on his propagation of the concept of Laissez-Faire to provide complete freedom to individuals in the process of development was not actually correct and that even in later times legislations were in fact used to restrict individuals in economic matters.
       
2. Hans Kelson:
   Kelson gave the Pure Theory of Law which suggests that law must remain free from the influence of all social sciences, such as psychology, sociology etc. he aimed at establishing a science of law which will be pure in the sense that it shall shun all ethical, moral, metaphysical, psychological and sociological elements and factors; he tried to altogether exclude such factors from the study of law. He too constantly criticized the ideas and principles of natural law.
   
   Kelson defined law as an order of human behaviour and it being coercive in nature, owing its coercive powers being derived directly from the sanction attached to it. 
   Essential Foundations of Kelson�s System:
   
   1. Aim of this theory of law, like any science is to reduce chaos and bring unity
   2. Legal theory is the knowledge of what law is and not what law ought to be
   3. Law is a normative science and not a natural one
   4. The theory of norms Is not concerned with the effectiveness of legal order
      
      The most distinguishing feature of his pure theory of law was the Grundnorm and the hierarchy of all norms. The grundnorm as the fundamental norm is the starting point in any legal system from which the legal system slowly broadens and progresses.
      
      Praise
      He is considered to be one of the most prominent and important jurists of the 20th century and someone who has had influential effects on many law scholars.
      
      Criticism
      His theory of the grundnorm has been observed to be vague by Freidman and has been claimed to be fictitious as it is something which cannot be traced into legal reality. Every norm or law derives its efficacy from some other norm or law standing behind it but the grundnorm has no rule or norm standing behind it. 

Sociological School of Jurisprudence

• Reasons for the Emergence of the Sociological School of Law:
  The school emerged in the late 19th and early 20th century, around the same time when the Laissez-Faire state was first introduced, following which the individual interests of the society started to evolve. Laissez-Faire is a policy of minimum governmental control or interference in the economic affairs of its individuals and the society at large. It guarantees unrestricted freedom of individuals in all economic matters. Due to this, the individual interests of the people gained greater importance against the larger welfare of the entire society.
  
  The sociological school was a reaction against this policy of Laissez-Faire as the school advocates a balance between the two factors. It believed in studying sociology from a legal point of view and as a subdiscipline of sociology which talks about interdependence of society and law.
  
  Four Functions of Podgorecki:
  
  1. Aims to grasp law in its actual working
  2. Provides expert advice for social engineering
  3. The school struggles with reality
  4. The school attempts to shape its studies to make them useful for practical applications
      
• Proponents of the Sociological School of Jurisprudence
  
  1. Roscoe Pound:
     He was an American legal scholar who claimed that law should be studied as in its actual working and not as it stands in the textbooks. He also gave the infamous theory of Social Engineering which compares lawyers to engineers who use their skills to develop and manufacture new products. Similarly, as a social engineer, it is the duty of the lawyers to build a structure in the society that provides maximum happiness and minimum possible friction.
     
     According to his interest's theory, the balancing of all conflicts of interests is a supreme over all individual interests:
     
     1. Individual Interest: These interests are demand from the viewpoint of individual life, interest such as personality and domestic relationships etc.
     2. Public Interest: These are asserted by individuals from the viewpoint of political life and claims that everyone has a responsibility to make use of resources open to public use within the interest of the preservation of state.
     3. Social Interest: These are in terms of social means to fulfil the needs of the society for better functioning and maintenance.
     4. Pound's Jural Postulates: The interests highlighted in these postulates are to be safeguarded:
        
        1. Criminal: It is the interest of protection from any internal aggression
        2. Law of Patent: Aims at securing one's own created property by one's own labour and hard work
        3. Law of Contract: Interests in making the contract and getting reasonable remedy or compensation when his right is violated
        4. Law of Torts: Interest in protection against defamation and unreasonable injury caused by the negligent act of another.
        5. Strict Liability: Duty of other people to keep their things within their own boundaries and to look after them in order to avoid injury to another
           
           Praise
           His idea of Social Engineering is followed universally for dispute resolution. Moreover, Pound has confessed that his postulates are not absolute and have relative value, but give ideal standards which the law should pursue in the society.
           
           Criticism
           His use of the term engineers for lawyers has been criticized by many, claiming that it equates society to a factory like mechanism.
            
  2. Leon Duguit:
     He was a French jurist and a leading jurist of droit public i.e., public law. He was greatly influenced by Auguste Comte and Emile Durkheim. Duguit proposed the theory of Social Solidarity which explains the cooperation between individuals needs and their existence. Social Solidarity literally means a feeling of oneness; it represents strength, cohesiveness, collective consciousness and viability of the society as well as the interdependence of human beings in a society. Duguit was of a belief that mean cannot exist without interdependence and that cooperation is an essential factor in a cohesive society.
     
     He considered any law to be bad law that does not promote social solidarity. He made the claim that it is a man's duty as an individual of the society to follow and promote the approach of social solidarity.
     
     Praise
     He discarded the traditional theories that considered law to be deriving from the authority of the monarch or the state. He instead found the basis of law in the fact that humans are social animals endowed with a universal sense of instinct of solidarity and social interdependence.
     
     Criticism
     Many consider his theory of social solidarity to be vague and that a deeper analysis would reveal that it is not very different from the metaphysical notions that he very strongly rejected. Also, it was criticized how it was the duty of a judge to decide whether an act or rule is advancing social solidarity which some claim might deem dangerous as judges have their own limitations and that such a process might lead to judicial dictatorship.
      

Realist School of Jurisprudence:

• American Realism
  John Chipman Gray and Oliver Wendell Holmes are together regarded as the fathers of American realism. The ultimate aim of this school is to reform the law and the claim that it cannot be done without understanding the law first. They attempt to study the law as it is and not as it ought to be, which is something that they have in common with the Positivists.
  
  The school believes in understanding the law while taking into consideration the sociological factors involved in it. They undertake an empirical approach to study the law and draw emphasis on the role of judges in law.
   
• Proponents of Realistic School of Jurisprudence (American Realists)
  
  1. Oliver Wendell Holmes:
     Holmes is considered famous for his Bad Man's Theory which looks at law from a criminal's perspective. According to him, the law is meant for potential criminals or the bad men. Oliver Holmes rejected all definitions of law based on morality, ethics and natural law. He claimed that the bad man only cares about the actions of the courts if he commits an act and that such predictions regarding the court's actions against a criminal is what the law really is. His definition of law as prediction resulted in an increase in the prominence of litigation and lawyers.
     
     He advocates a complete separation of law and morals and claimed that legal history is to be studied only in order to analyse the relevance of certain historical laws on the contemporary laws. His approach towards was empirical and pragmatic.
     
     According to him, Law is the thing that the courts do; it isn't simply what the courts state. His emphasis is on the activity and the life of law has not been rational but rather it has been involvement. He stated that law isn't just logic or facts but the collected experience to deliver a prudent judgement.
     
     He threw light upon the question as to Why people understand the law?, to which he answered that they do so in order to discern between the right and the wrong.
     
     Praise
     His writings on jurisprudence have shaped discussions on the nature of law and his court opinions have been studied as much for their style as for their intellectual content. Furthermore, he had a profound effect on the development of sociological jurisprudence and legal realism.
     
     Criticism
     His jurisprudence eventually led to the conclusion that the judges first come up with or make legal decisions and then come up with reasons to explain to them which was widely criticized. Moreover, he paid too much deference to the power of the state to control individual freedom.
      
  2. Jerome Frank:
     Frank insisted upon two groups of realists, namely:
     
     1. Legal/Rule Sceptic: Realists who were sceptic about legal rules and them providing uniformity to law
         
     2. Fact Sceptic: Realists who were sceptic about the establishment of facts before the trial courts, in addition to legal rules
        
        He considered himself to be a Constructive Legal Sceptic belonging to the second group of realists. According to him, law involves the application of rules of law to case facts by the judges. He was sceptic about the accuracy of those facts being presented to the judge, with the claim that if facts prove to be wrong then so does the judgement.
        
        He drew emphasis on the uncertainty of law and that precedents and laws are made under the false belief of them being certain and that lawyers and judges shouldn't strictly adhere to them. He claimed that such a dependence on precedents and laws provides a false sense of security which can prove to be dangerous and harmful.
        
        He moved on to say that legal certainty is a myth and that there is no certainty their outcome due to a multitude of constants and variables. In his belief, Law is a constructive work in the hands of lawyers and judges, and that it is their duty to follow the background and do it independently and without any imposition.
        
        Praise
        He urged judges and legal scholars to acknowledge openly the gaps and the uncertainties in the law and to think of law pragmatically as a tool for human betterment.
        
        Criticism
        He never attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform, although, he also did not entirely deny the possibility of rational-legal decision-making.
         
• Scandinavian Realism
  Many scholars claim that the jurists belonging to this school have certain differences amongst themselves. They have abstract and philosophical beliefs and strongly criticize the metaphysical ideas of law. They play an important role in rejecting the ideas of the natural school of law. The school overall denotes the legal philosophies of a group of scholars and denies the possibility of a science of justice or values.
  
  The school has made the claim that law cannot be explained simply by the facts alone and it exists by the psychological effects on it caused by certain factors. The jurists of this school laid emphasis on law as fact and created a climate conductive to the sociological study of law.
   
• Proponents of Realistic School of Jurisprudence (Scandinavian Realists)
  
  1. Axel Hagerstorm:
     He is regarded as the spiritual father of the Scandinavian realists and has strongly criticized the metaphysical foundations of law. He was a strong critique of the errors in juristic thought and writing. He believed in conceptual analysis, as well as historical and psychological but never empirical unlike the American realists.
     
     Hagerstorm rejected the attempts of various jurists to find the empirical foundation of rights
     He profoundly studied Greek and Roman law in his quest for historical basis of rights and claimed that One fights better if one believes that one has right on one's side.
     
     He stated that the relation between law and ritual is like that between liquor and its bottle. He strongly rejected the ideas of good and bad and denied the existence of such objective values.
     
     Praise
     Hagerstorm's importance for the development of his approach to legal philosophy generally and to international law is widely credited. Moreover, he claimed that there is no factual continuity, coherence or unity in legal rules other than what is actually stated by the judges.
     
     Criticism
     He was of the opinion that words such as right and duty were basically meaningless as they could not be scientifically verified or proven. He stated that they may somehow influence or direct individuals but if they could not stand the factual test, then they were mere fantasies. He also attacked various other such words claiming that they could not stand up to their scientific application.
      
  2. Karl Olivecrona:
     According to Olivecrona, law does not require a specific definition which is why he sought to investigate law and not its nature because such an examination would demand certain assumptions to be made and Karl believed in examining facts rather than making assumptions. He rejected the idea of a binding force behind law or the binding force of law and claimed that law has a binding force as long as its valid and that if law loses its validity, it will consequentially lose its binding force. He stated that such a force is not vested in the will of the state or the consequences if the law is broken, rather it is present in validity.
     
     He was of the belief that the term right is actually hollow and that legal problems can be solved without using the concept of rights.
     
     He made the claim that law influences morality and not otherwise, and advocated the correlation of law and morality. He made the claim that the morality of an individual is from a pre-existing law i.e., his moral compass forms due to the laws in action from when he was born.
     
     Praise
     His writings put emphasis on the psychological significance of legal ideas. He implied that anything can be made of importance by adding a psychological effect to it.
     
     Criticism
     The distinction espoused by Olivecrona between the truth and the correctness of legal statements is actually considered to be problematic but is not considered being needed in this legal philosophy. Furthermore, his thoughts on judicial law-making are somewhat considered being confused.

Philosophical School of Jurisprudence

• Proponents of the Philosophical School of Jurisprudence
  
  1. Hugo Grotius:
     Grotius is regarded as the father of the philosophical school of law as he demarcated the philosophical school from natural school and one of the first ones to do so. He dwelled upon the idea of reason and logic as the bases for the origin of any law not through some divine entity or origin. Prior to his theory, people strongly associated law to god and the divine. He also stated that:
     Natural law springs from the social nature of man and the natural law as well as a positive morality, both are based on the notion of righteousness.
     
     He accredited that humans came into existence, and continue to exist in a society collectively while maintaining a level of interaction owing only to the social contract theory, which says that people live together in a society in accordance with an agreement that establishes moral and political rules of behaviour. He was of the view that the agreement of mankind concerning certain rules of conduct is an indication that those rules originate in the right reason.
     
     He also stated that it is the duty of the sovereign who is bound by the principles of natural law, to protect the people of the state and safeguard their rights as he has been handed over the power to do so. However, Grotius also explicitly pointed to the fact that in case the ruler does not remain in conformity of the principles of natural law and isn't the perfect or desirable sovereign capable of safeguarding the people's rights, it still remains the duty of the citizens to obey him.
     
     He is also regarded as the father of International law, and he gave the One Nation Theory, which means that the whole world is one and is governed not by force or warfare but by actual laws and mutual agreement to enforce those laws. He additionally advanced the idea of Just War as a war that was required by natural, national and celestial law in specific situations. He developed a series of rules for the right conduct of war, based on the principle that actions in war should serve the right.
     
     Praise
     He was the first one to demarcate the philosophical school of law from the natural school of law. Furthermore, he also defended the idea of free access to the ocean s for all nations which was appreciated by many at the time.
     
     Criticism
     He claimed that it was the duty of the citizens to obey the orders of even a bad sovereign and such a claim created an inconsistency in his theory as on the one hand; he is of the view that the ruler is bound by the just principles of natural law but on the other hand he also claims that in no situation can the sovereign be disobeyed.
      
  2. Immanuel Kant:
     According to Kant, The freedom of man to act according to his will and the ethical postulates are mutually correlative because no ethical postulate is possible without man's freedom of self-determination. He called the substance of the ethical postulate categorical imperative, which is the basis of his moral and legal theory.
     Kant deeply relied on the concept of united will of the people and made the claim that an individual is required to act in such a manner that the maxim of your action will become the maxim of a general action of the society. In other words, he saw the law as an instrument through which the individual will of the people can be harmonized with the general will of the society.
     
     Praise
     He was forward looking as he had challenged the 18th-century convention of social discrimination by creating a system of ethics in which morality is reason-based and impartial as well as egalitarian.
     
     Criticism
     Hegel argued that Kant's ethics force humans into an internal conflict between reason and desire. For Hegel, it is unnatural for humans to suppress their desire and subordinate it to reason completely.
      

Historical School of Jurisprudence

• Reasons for the Emergence of the Historical School of Law:
  The primary reason for the origin of the historical school of law is that it rejects the idea of formulation of law by judges or some divine relevance
  
  1. Rejects the ideas proposed by the analytical school of law which states that law is the command of the sovereign. Historical school is of the claim that formulation of law is by the people's customs, habits and not by precedents and interpretations of the judges or legislation.
      
  2. Secondly, it is in the opposition of natural law which claims that law has been present ever since the the inception of society and is given to us by some divine power or relevance, in disagreement to which the historical school states that formulation of law is by the people and not some divine origin.
      
• Proponents of Historical School of Jurisprudence
  
  1. Friedrich Carl von Savigny:
     Von Savigny was a German Scholar and is regarded as the father of the historical school of law. He argued that the main source of law is the consciousness of the people and that it rather originates in the behavioural pattern of the society and cannot be artificially fashioned or created. He compared law to language and culture, something which cannot be applied universally and neither can be created based on a rational or eternal principle as different societies have different needs everywhere. Based on such an observation, he also noted that like language and culture, law is born, is found as well as it grows in the society and will die with the society.
     
     He claimed that state law grows side by side with the strength of the state's collective nationality and ceases to exist if or when nationality loses its charm in the society. He stated that law has its very own national character which gives rise to the concept of Savigny's Volksgeist which means law is the general product of people's consciousness or will. He made the claim that law should support the will of the people and legislation should not be forced on the society unless they're worked upon accordingly with the will of the society.
     
     Praise
     Von Savigny is considered to be one of the greatest jurists of the 19th century. Jurists claim that with the publication of many of his early works, modern jurisprudence was born.
     
     Criticism
     Although, Savigny's theory of Volksgeist was a revolution and his contributions were appreciated by many, he ruined the very concept of the theory through exaggeration and overemphasis. The theory was criticized for its lack of precision and even though it contains some amount of truth, Savigny took it to far to develop some of its ideas.
     
     The theory in itself has limited applicability which he rather tried to deem universal. The theory was also criticized as all the customs cannot be of the common conscience. Many believe that the theory is a direct product of the growing spirit of nationhood and nationalism prevalent in Europe during the era.
     
     He was also criticized largely based upon the idea that he overlooked the impact of almost all other sources of law.
      
  2. Sir Henry Maine:
     Henry Maine is regarded as the founder of the English Historical School of Law, he carried forward Von Savigny's work and views in English. Maine studied the Indian Legal System in-depth and was a law member in the council of the Governor-General of India between 1861-1869. Unlike Savigny, he was in favour of codified laws and legislations.
     
     Maine's development of law in four stages:
     
     1. First Stage: (Law by the Ruler)
        Rulers act under the influence of divine inspirations and the laws are made on the command of the ruler thereafter. Such a judgement was believed and interpreted to be the judgement of some divine origin. The ruler was not a lawmaker but rather, he was simply an executor of the will of the god
         
     2. Second Stage: (Customary Laws)
        The commands of the king are then translated into customary laws which prevail with the ruler or the majority class.
         
     3. Third Stage: (Law under Priests)
        The knowledge of the customs soon shifts on to the minority class due to a lack of power in the hands of the original law-making authority like priests and soon the minority class supersedes the authority of the kind and obtains control over the law.
         
     4. Fourth Stage: (Codification)
        In the fourth and final stage, the law is codified and legislated.

• Legal Fiction: It means to change the law with the changing needs of the people without making any amendments to the written code. Although it makes the law more inclusive and improves legal order, it makes the law harder to understand.
   
• Equity: It helps remove rigidity and injustice.
  Maine suggested that:
  Equity is a body of rules existing by the side of the original civil law and founded on distinct principles.
   
• Legislation: It is the most effective and desirable method as laws will be enacted and will become operative officially.