Schools of Jurisprudence: Analytical and Historical notes — Unit 2

Throughout history, jurists have attempted to answer the fundamental question: 'What is law?' Because law is a complex phenomenon influenced by politics, history, morality, and sociology, no single definition can capture its entirety.

To study these differing perspectives systematically, jurists are grouped into different 'Schools of Jurisprudence' based on their core philosophy.

⇒1.1 The Two Fundamental Approaches

This unit focuses on two completely opposing schools that formed the bedrock of 19th-century legal thought:

Jeremy Bentham (1748–1832) is widely regarded as the founder of the Analytical School (often called the father of modern jurisprudence). Living during an era when English Common Law was chaotic, uncodified, and heavily reliant on judicial whims, Bentham advocated for a clear, logical, and codified legal system.

⇒2.1 Expository vs. Censorial Jurisprudence

Bentham was the first to draw a strict line between studying what the law is and what the law ought to be. He classified jurisprudence into two branches:

• Expository Jurisprudence: The objective study of the law as it currently exists in reality, without questioning its moral validity. (What the law is).
• Censorial Jurisprudence (Art of Legislation): The critical evaluation of the law to determine if it is good or bad, based on a specific standard. (What the law ought to be).

⇒2.2 The Theory of Utilitarianism

To conduct 'Censorial Jurisprudence' and judge whether a law is good or bad, Bentham needed a standard. He rejected 'divine law' and 'natural justice' as vague nonsense. Instead, he introduced the principle of Utilitarianism.

According to Bentham, the only purpose of law is to maximize the overall pleasure (utility) of the community and minimize pain. If a law increases happiness for the majority, it is a 'good' law. If it causes more pain than happiness, it must be repealed.

While Bentham's utilitarianism was revolutionary and led to massive legal reforms in England (including the modernization of the penal code), it faced severe criticism from later jurists and philosophers.

• Tyranny of the Majority: The biggest flaw in 'the greatest happiness of the greatest number' is that it can justify the extreme oppression of a minority. If 90% of a society derives 'pleasure' from enslaving or discriminating against the remaining 10%, utilitarianism technically justifies it. Modern constitutional law specifically protects minority rights against the majority's will.
• Immeasurability of Pleasure and Pain: Bentham proposed a 'Felicific Calculus' to mathematically calculate pleasure and pain. However, pleasure is subjective. The pleasure a wealthy person gets from an extra hundred dollars is vastly different from the relief a starving person gets from it.
• Ignores Motive: Utilitarianism only looks at the consequence of the act (did it increase happiness?), completely ignoring the moral intent behind the act.

Despite these flaws, Bentham's insistence on separating 'law as it is' from 'law as it ought to be' laid the groundwork for his disciple, John Austin, to build the Analytical School.

John Austin (1790–1859) took Bentham's 'Expository Jurisprudence' and built an entire school around it. Austin ruthlessly purged law of all morality, ethics, religion, and history. He believed jurisprudence should solely concern itself with Positive Law (Jus Positivum).

⇒4.1 The Imperative Theory (Command Theory of Law)

Austin famously defined law as: 'The command of the sovereign, backed by a sanction.'

This definition rests on three indispensable pillars. If any of these three elements are missing, it is not a 'law' in Austin's eyes:

Austin's theory dominated English jurisprudence for a century due to its logical simplicity. However, in the 20th century, jurists (especially Salmond and H.L.A. Hart) dismantled it point by point.

• 1. Ignores Customary Law: According to Austin, only the sovereign makes law. But in reality, customs (like Hindu undivided family rules or merchant usages) existed and were obeyed as law long before any sovereign 'commanded' them. Historical jurists heavily attacked Austin on this point.
• 2. Ignores Judge-Made Law: Austin's model struggles to explain common law, where judges make law through precedents (Stare Decisis). Austin weakly argued that what the sovereign permits, the sovereign commands (tacit command), but this is logically strained.
• 3. Sanction is Not the Only Motive: Austin believed people obey law out of fear. But people obey laws (like stopping at a red light on an empty street) out of habit, respect for the system, and social utility.
• 4. Inapplicability to Modern Constitutional Law: Austin's sovereign is absolute and above the law. In modern democracies like India, the 'sovereign' Parliament is restricted by the Constitution. If Parliament passes an unconstitutional law, the Supreme Court strikes it down. Thus, the sovereign is not absolute.
• 5. Rejection of International Law: Because International Law lacks a global sovereign and a global police force (sanction), Austin refused to call it 'law'. He termed it mere 'positive morality'. Today, international law is universally recognized.

H.L.A. Hart, a 20th-century Oxford philosopher, rescued the Analytical School from Austin's rigid flaws. In his seminal book The Concept of Law (1961), Hart argued that Austin's model of a sovereign issuing commands backed by threats resembles a 'gunman situation' (a bank robber holding a gun to your head). A true legal system is far more complex.

⇒6.1 Primary and Secondary Rules

Hart replaced the idea of 'commands' with the idea of 'rules'. He posited that a legal system is a union of Primary and Secondary rules.

⇒6.2 The Three Types of Secondary Rules

• The Rule of Recognition: Solves Uncertainty. It is the ultimate criteria used to identify whether a primary rule is valid or not. (e.g., In the UK, whatever the Queen in Parliament enacts is law. In India, the Constitution is the ultimate rule of recognition).
• The Rule of Change: Solves the Static nature of law. It empowers bodies (like Parliament) to introduce new primary rules or repeal old ones.
• The Rule of Adjudication: Solves Inefficiency. It empowers individuals (judges/courts) to authoritatively determine whether a primary rule has been broken.

Hans Kelsen (1881–1973) sought to create a 'Pure' science of law. He wanted to cleanse jurisprudence of all 'impurities'—meaning psychology, sociology, politics, and morality. He argued that law must be studied purely as a system of norms.

⇒7.1 Law as a Normative Science

Kelsen distinguished between Natural Sciences (based on cause and effect: 'If X happens, Y will happen') and Normative Sciences (based on imputation: 'If X happens, Y ought to happen'). Law is a normative science. It doesn't guarantee a thief will be jailed, but states that a thief ought to be jailed.

⇒7.2 The Hierarchy of Norms and the Grundnorm

According to Kelsen, a legal system is not a collection of commands, but a strict hierarchy of norms. A lower norm derives its legal validity from a higher norm. But where does the highest norm get its validity?

• The Grundnorm (Basic Norm): At the absolute apex of the legal system sits the Grundnorm. It is the initial, fundamental hypothesis upon which the entire system rests.
• The Grundnorm is not enacted by any parliament; it is legally presupposed.
• Every other law (Constitution, Statutes, Bye-laws) traces its validity back to this Grundnorm.

The Historical School emerged in Germany in the early 19th century as a direct reaction against both the Analytical School (which ignored the past) and the Natural Law School (which believed in universal, unchanging moral laws).

⇒8.1 Core Philosophy

The Historical School argues that law cannot be arbitrarily created by a sovereign (like a factory producing goods), nor is it a set of universal divine rules. Instead, law is a product of evolutionary social forces. It grows organically with the people, just like their language or culture.

⇒8.2 Friedrich Karl von Savigny (1779–1861)

Savigny is the undisputed founder of the Historical School. During his time, there was a massive movement to impose a unified French-style Civil Code on the fragmented German states. Savigny fiercely opposed this, arguing that you cannot impose a foreign code on a people because law must reflect the 'spirit of the people'.

⇒9.1 Savigny's Main Propositions

• Law is found, not made: Law exists in the customs of the people. A sovereign does not invent law; he merely discovers it and gives it formal recognition.
• Law develops like language: Just as a language develops over centuries through the habits of speakers, law develops through the habits and traditions of the society. Neither can be invented overnight by a committee.
• Custom is superior to Legislation: Custom is the true voice of the Volksgeist. Legislation should only be used to resolve conflicts in custom or declare it formally. If a statute contradicts the Volksgeist, it will fail.
• Role of Jurists: In ancient times, law is simple. As society becomes complex, the common people cannot understand technical legal nuances. Jurists and lawyers emerge as the representatives of the Volksgeist to articulate the law.

⇒9.2 Criticisms of Savigny

While Savigny rightly highlighted the importance of custom, his theory suffered from romanticism and practical flaws:

• Inconsistency with Social Evils: Some customs (like Sati, untouchability, or slavery) were deeply rooted in the 'Volksgeist' of societies for centuries. They were inherently unjust and could only be eradicated by abrupt, forceful legislation. Savigny's theory would oppose such progressive legislation.
• Vagueness of Volksgeist: In modern, multicultural societies like India or the USA, it is impossible to identify a single, unified 'spirit of the people'.
• Ignores Legal Transplants: Savigny argued law cannot be transplanted from outside. However, the Indian Penal Code (drafted by a British Lord) and the Japanese Civil Code (borrowed from Europe) have been incredibly successful, proving that foreign laws can be adapted effectively.

Sir Henry Maine (1822–1888) was the pioneer of the English Historical School. Unlike Savigny, who relied on the mystical concept of 'Volksgeist', Maine adopted a strict comparative and anthropological approach. He studied ancient Roman, Hindu, and Irish legal systems to trace the actual historical patterns of legal evolution.

⇒10.1 Maine's Four Stages of Legal Development

Maine observed that all progressive societies go through four distinct stages of legal development:

• Stage 1: Law by Divine Dictate (Themistes): In primitive societies, the King is the absolute judge. His decisions (Themistes) are believed to be directly inspired by God. There are no general rules, only case-by-case divine judgments.
• Stage 2: Customary Law: The King's divine judgments are repeated over time and crystallize into unwritten customs. The power shifts from the King to an oligarchy (usually priests or nobles) who become the exclusive guardians and interpreters of these customs.
• Stage 3: Era of Codes: With the invention of writing, the common people demand that the laws be written down to prevent the elite oligarchy from manipulating unwritten customs. This leads to ancient codes (e.g., The Twelve Tables of Rome, The Code of Manu).
• Stage 4: Modification of Codes (Progressive Societies): Static societies stop at Stage 3. However, 'Progressive Societies' realize that society changes faster than the written code. They adapt their law using three tools, in this exact historical sequence:
  1. Legal Fictions: Pretending the law remains the same while altering its operation.
  2. Equity: Principles of fairness that override strict law.
  3. Legislation: Deliberate, conscious law-making.

Maine's most celebrated contribution to jurisprudence is his observation regarding the shift in the legal condition of individuals in society.

⇒11.1 Understanding the Shift

⇒11.2 The Reversal (From Contract back to Status?)

Interestingly, 20th-century jurists noted that modern welfare states are partially reversing Maine's dictum. To protect weaker parties from exploitation (due to unequal bargaining power in contracts), the State imposes a new 'Status' on them (e.g., 'Employee', 'Consumer', 'Tenant'). Minimum wage laws and rent control acts restrict the freedom of contract to protect these newly defined statuses.