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URISPRUDENCE-I

1ST SEMESTER (of Ist YEAR),


CCS UNIVERSITY, MEERUT
Sent by Abhishek Raj Singh
WHAT IS LAW?
KINDS/CLASSIFICATION OF LAW
MEANING AND IMPORTANCE OF JURISPRUDENCE
NATURE AND SCOPE OF JURISPRUDENCE
WHAT IS LAW?
Difficulties in defining law:
It is said that to explain a thing is easier than to define it. For the study of subject, its definition
plays an important role because the beginning and in one sense, the end of the study also
depends on its definition.
To give a definition of term law is comparatively more difficult task due to various reasons
Firstlyin all societies from primitive to the present day of highest peak of civilization-in one or
other from, there is law. The difficulties not only lie in the fact of development rather in
characteristics also. In different societies, law means and includes different things.
Under Hindu DharmaIt is Dharma
Under IslamicIt is Hukum
Under RomanIt is Jus
Under FrenchIt is Droit.
Secondly--Different definitions of same thing may be given if it is viewed from different angles.
Thus, the definition given by a lawyer, a philosopher would greatly differ. Even different schools of
law defined this word on the basis of different bases. Such as, some defines law on the basis of
its sources. Some defines it on the basis of its nature.
ThirdlyWe all know that, law is a social science. It grows and develops with the society. The
fast social and scientific development of modern era has created new problem. To keep pace
with the society, the function and scope of law remains always changing. Therefore, it is difficult
for a given definition of law at a particular time to remain valid for all times(National Textiles
Works Union Vs. P.Ramakrishna, 1983 SC)Law is a gradual process scheme.
There have been many attempts to produce a universally acceptable definition of law
By 1972, one sources indicated that no such definition could be produced (Lord Hampstead in
Introduction to Jurisprudence)
McBrey and White said that the question what is law has no simple answer.
Glaville Williams said that the meaning of the word law depends on context in which that word is
used.

Proposed Definition:According to New International DictionaryWebster:Law is a binding custom or practice of community. A rule prescribed and recognized by Supreme
controlling authority, made obligations by sanction i.e. order, ordinance, statutes etc. and is
enforced by controlling authority.
One definition is that the Law is a system of rules and guidelines which are enforced through
social institution to govern behaviour.
J.L.Hort in concept of law argued Law is a system of rules.
Austin said Law is command of sovereign backed by the threat of sanctions
J.Raj argues Law is an authority, which mediate peoples interest.
So overall study of the definition of law lies in the fact of balancing of interest between just and
unjust.
Several cases:1. Maneka Gandhi Vs. Union of India, 1979 SC
2. National Legal Services Authority Vs. Union of India
However, we can see definition of law in three broad classes:(i) Idealistic
(ii) Positivistic
(iii) Sociological
IDEALISTIC:Most of the ancient definition of Roman and other ancient jurists come under this heading, like,
Roman defines Justice as the main element of law, is the view of all ancient Roman definition
i.e. Ulpian, Ciero etc. Ancient Hindu view was that law is the command of God and not of any
political superior (i.e. sovereign). Then, According to Jurisprudence, law is a part of Dharma.
However, in modern idealistic definition of law justice; still plays a vital role, but their concept of
justice is not same as that of ancient time. Justice in modern time means legal justice and not
an abstract justice. It is because of taking justice as grand of law. These jurists are called
Idealistic.
POSITIVISTIC:John Austin is considered to be main propounder of the Analytical School and is known as the
father of English Jurisprudence.
He says law is a command of sovereign. It obliges certain conduct and is backed by a sanction.
Thus, the command, duty and sanction are the three elements of law. The law which has three
elements is called positive law.
Kelson was also from this class who argues, law as depsychologized command. However, the
sense of defining law is different from those of Austin. By command, means impose a duty.
Austin sovereignty does not come into picture in definition of Kelsen.
SOCIOLOGICAL DEFINITION:Sociological definition defines law in terms of its relation with the society.
Duguit, Ihering, Pound were considered to be main pioneer of this thought. But, Professor D.R.

Pound was considered to be leader of this approach. He defines law as a social institution to
satisfy social wants. This definition is very valuable and directed towards new field of study of law
in context of social problem.
As we sturdy other school, which talks about other associated factor, but left the value of direct
study of society, which was taken into consideration by sociological jurists.
But, as we know, every definition of law has its shortcoming. Sociological thinker does not pay
proper attention to the nature and characteristic of law. What is the function of law, they mainly
focussed on purpose i.e. to do social welfare.
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KINDS/CLASSIFICATION OF LAW:
Different between kinds of classification:Under the heading kinds of law, we discussed the various senses in which the term law is
used, like scientific, natural, moral, conventional, customary etc.
Classification becomes necessary for logical understanding, because it makes clear the inter
relation of rules and their effect on each other.
KINDS OF LAW:
Scientific Law Actions of human being which are uniform such as sleep. Uniformities which are
observable in nature as the laws of light/heat.
Natural LawIt has various names like moral laws, divine laws, law of God, law of reason etc. It
mainly defines principles of right and wrong. Its central theme of study is justice.
Conventional law--Those rules or set of rules which are the outcome of an agreement between
the persons. They agree to observe these rules in the regulation of their conduct towards each
other.
Customary Law--Those rules and principles, which are observed in a particular community in
actual practice for a long time, like customs, general uses and practice, they got status of law
because of their continuous practice by society. But, here, customs, practices should not be
opposed to public policy, existing statutes, not declared to be void by a competent court etc.
CLASSIFICTION OF LAW:
The idea of classification and the and the credit of classification of law should go to Romans as
well as the Hindu jurists.
The ancient Hindu jurist laid down titles of Vyawahara (civil law). They distinguish civil and
criminal law and classified criminal law under various heads. Law may be broadly divided into two
classes:(i) International law
(ii) Municipal or National law
(1) International LawPresent form of International Law is of new origin. Earlier, jurists were of
the view that International Law is not a law. Austin was supporter of this view. He says
International Law lacked many of the elements which a law should have. Like, sovereignties,
command etc. On the other hand, Kelson was of the view that International Law is law and it is

superior to Municipal Law.


Now, the point whether International Law is law or not is no longer under controversy and it has
been recognised by all jurists and nations as an important branch of law.
Again, International Law is divided into two classes(i) Public International Law.
(ii) Private International Law.
Public International Law that body of rules which governs the conduct and relationship of States
with other. Really speaking, the term International Law is used for this class of law.
Private International Law - means the rules and principles by which the cases having foreign
elements are decided. For example If a contract is made between Indian versus Pakistani
person and it is to be performed in London, the rules and principles on which the rights and
liabilities of parties would be determined would be called Private International Law.
(2) Municipal Law/National Law that applies within a State is divided into two classes.
(1) Public Law (2) Private Law
(Constitutional, Administrative, Criminal) Between the parties with each
other like
Contract, Tort etc.
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DEFINITION AND SCOPE OF JURISPRUDENCE
The word Jurisprudence is taken from Latin word JurisprudentiaKnowledge of Law. But this
meaning of Jurisprudence is vague in itself. The meaning which the word Jurisprudence
conveys in modern times is the result of a course of evolution. Jurisprudence is the name given
to a certain type of investigation, into law, which seeks to establish certain types of principles of
legal system.
In Jurisprudence, we are not concerned to derive rules from authority and apply them
accordingly, we are concerned with the nature of that legal rules and its underlying meaning. In
this way, we can say that Jurisprudence is the Philosophy of Law which object is yet to discover
rules rather to justify their rules which is already known. The ---- of jurisprudence to law depends
not upon what law is treated but how law is treated.
Now, we will take some important definition of jurists:According to Benthem Jurisprudence is an analysis of formal structure of law and its concept.
According to Stone It is nothing but lawyers extraversion. It is the lawyers examination of
precepts ideals of law in light of observations derived from present knowledge in discipline other
than law.
According to Austin The science of jurisprudence is concerned with positive law, with law
strictly so called. It has nothing to do with goodness or badness of law. Here positive law means
its positivitys, that is law laid down by political superior for commanding obedience from subject.
Nature of Jurisprudence:Jurisprudence in its nature is entirely a different subject from other social science.

The reasons for that differences are:(1) It is unmodified law


(2) Ever growing subject
(3) Science of Law
(4) Philosophical aspect etc.
Use of Jurisprudence:
(1) It gives an understanding of the nature of law. It helps in the study of actual rules and taking
out principles underlying therein.
(2) Helps in making scientific development of law.
(3) Develops critical faculties of mind and given proper understanding of legal expression and
terminologies.
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ANALYTICAL SCHOOL + PURE THEORY OF LAW


Introduction:- Analytical school is positive in its approach to the legal problems in the society. It
concentrates on thing or they are not as they ought to be. The main concern of the positives is
law that is actually found and not the ideal law.
The most important legal sources are to analytical schools are legislation, judicial precedents and
customary law.
The motto of a school is Ubi Civitas Ibi Lex i.e. where there is state there will not be anarchy.
The main proponents of this school are :Benthem, Holland, Austin, Salmond etc.
(A) BENTHAMS CONCEPT OF LAW:
J.Bentham, the founder of positivism, should be considered the Father of analytical positivism
and not Austin, as it is commonly believed Bentham was a champion of codified law
(legislation).
Bentham distinguished positorial jurisprudence ( i.e. what the law is ) from censorial
jurisprudence (i.e. what the law ought to be).
While supporting the economic principle of Laissez Faire
(minimum interference of State in the economic activities of individuals), he propounded the
principle of Utilitarianism (i.e. the end of law should be greatest happiness of the greatest
number i.e. Om, Sarve bhavantu sukhina Sarve santu nirmay Sarve bhadri payantu M
kashchit dukha bhgbhavet
Benthams doctrine of hedonism on theory of Pain & Pleasure is pain alone cannot be the final
test of adequacy of law.
(B) AUSTINIAN CONCEPT OF LAW:J.Austin was lecturer in London University. He applied analytical method- Law should be

carefully studies and analysed and the principle underlying the therein should be found out.
Austin confined his field of study only to positive law Justin positivism i.e. law set by political
superior to political inferior.
Therefore the school founded by him is called by various names i.e. Analytical, positivism.
Austin was considered to be Father of English Jurisprudence. He defined law a rule laid down for
the guidance of an intelligent being by an intelligent being having power over him.
We can easily understood, classification of law made of Austin :LAW
Law Properly so called Law improperly so called
Law of God Law of Human Law by analogy Law by metaphor
as law of fashion or law of gravity
Positive law i.e. by Law not set by men, Int. law or law of honour
political superior to as political superior
political inferior
Positive morality
CRITICISM OF AUSTIN THEORY:(1) Custom Ignored because according to Austin Law is a command of sovereign. But in early
time there was no command of political power rather society regulated by the customs.
(2) Ignorance of Judge made law
(3) Austins sanction is not only means to obedience law is obeyed being of its acceptance by
community.
(C) HARTS CONCEPT OF LAW:Leading contemporary representative of British positivism. He wrote an influential book The
concept of law.
According to Hart, Law is a system of social rules which acquires the character of legal rules.
So, law according to Hart is equivalent to a legal system. A legal rule can be defined as are
which prescribes a code of conduct, which is done with the feeling that such conduct is
obligatory. He criticized Austins theory by saying Law prescribes not a command but a standard
of conduct.
According to Hart, there are two types of rules: Primary and Secondary. Primary rules lays down
standard of behavior or imposed duties (viz international law). Secondary rule are those by which
the primary rules are ascertained, introduced, eliminated etc. Ex-public or private ( i.e. Statute &
Constitution). From this, Rule of recognition derives which provide criteria for identifying primary
rules of obligation. The ultimate rule of recognition is the ultimate criterion of validity of a legal
order.
(D) KELSENS CONCEPT OF LAW:
Propounded pure theory of law i.e. law should be free from social, historical, political etc.

influence.
He defined law as an order of human behaviour. According to Kelsen, laws are ought
propositions i.e. norms, if X happens, they Y ought to happen. Thus, if a person commits theft,
he ought to be punished.
Kelson talks about the idea of grundnorm or basic norm from which legal system derive their
existence. The grundnorm must be efficacious i.e people must believe in it, otherwise there will
be a revolution. In every legal system, there will be some kind of grundnorm, whether it is in the
form of constitution or in the form of will of dictator. Where there is grundnorm in the form of
constitution it must be obeyed, if it is not written like UK one must look to social behavior for the
grundnorm. Under Indian Law, the grundnorm is the principle Palta Sunt servanda (Treaty
obligations are binding on parties).
Kelsons pure theory of law owns to Austins theory. However, the two differ in many respects:(i) For Austin law is command of sovereign. For Kelson Law is not the command of a personal
sovereign but a hypothetical judgment, which visits with a situation for non-observance of the
conduct prescribed.
(ii) In Austanian sense, the sanction was something outside a law imparting validity to it. While
according to Kelson, a sanction is in-built in every legal system.
(iii) Austin did not regard International law on a positive law. Kelson, on the other hand, accepted
the primacy of International law over national law.
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HISTORICAL SCHOOL
(Savigny, Montesano, Huga, Maine etc.)
Law touches actual life so intimately that it is only natural to view operations of law in their social
setting. The functional approach of law emphasizes support of society having law and legal
institutions, and is concerned with may not as an individual but with may in association.
The Historical School emerged as a reaction to legal theories propounded by analytical positivists
( as they failed to meet the need of the people) and the natural law thinkers. The motto of the
schools is Ubi Societies Ibi lex i.e. where there is society there is law.
The Historical School emphasizes that the historical factors influenced the origin, formation and
development of laws. Law is found not made. Laws are not of universal application or traditions
and customs determines the law. Germany was the cradle of this school of this school and
Savigny its main exponent.
SAVIGNY:According to Savigny, LAW IS NOT AN ARTIFICIAL, LIFELESS MACHANICAL DEVICE. His
work on Law of Possession is said to be the starting point of this historical jurisprudence. He
was of the view that law is closely connected with the people and it closely contained the germs
of future sociological theory. That is why Savigny is called Darwinian before Darwin and
sociological before sociologist.

The core of Savignys theory is to be formed in his essay On the Vocation Vom Beruf. He said
that the nature of cry particular system of law a reflection of spirit of the people who evolved it.
Law is product of peoples life. Law is the result of the genius of the people. Law has its source in
the common consciousness (Volkgeist) of the people.
Savigny while discussing the nature and meaning of law in his historical approach, points out two
important lines, which reflect the relationship of society, individual and the law: (a) Law grows with the growth, strengthens with the strength of people, and finally dies away as
the nation loses its nationality. Thus, law has a national character.
(b) The law, like language, grows with the growth of social consciousness and organization: the
law can only be revolutionary and not revolutionary. Because law is a matter of organic growth
i.e. not made suddenly and deliberately.
He said that any reform should follow the course of historical development. He thus opposed the
codification of law. However, he was not totally against the codification, he only opposes the
codification of Germany Law on the pattern of French (Napoleon Code), because at that time
Germany was divided into several parts and was quite immature.
CRITICISM OF SAVIGNY
(i) The crucial weakness of Savignys approach was that he depends his study on the tradition,
customs without regard to their suitability to the present. Savignys theory aimed to hang
traditions like fetters upon the hands of reformative enterprise.
(ii) Volksgeist not the exclusive source of law- not necessary that always common consciences
form the basis of law. For example an alien legal system is successfully transplanted in another
country, sometimes an individual greatly influence a legal system, who in no way can be said to
be representative of people.
MAINE:Unlike Savigny, he favoured legislation and codification of law. He is labelled as Social
Darwinist because he envisaged a social order wherein the individual is finally liberated from the
feudalistic primitive bondage.
According to Maine there are four stages of development of law:(i) Law made by the command of ruler.
(ii) Crystallization of command into customary law.
(iii) Administration of customary law by Priests.
(iv) Codification of law
The society which do not progress beyond fourth stage are static society and societies which go
on developing law by new method are called progressive society which develop their law by
three method
(i) Legal Fiction (ii) Equity (iii) Legislation.
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NATURAL LAW
In jurisprudence, natural law means those rules and principles which are considered to have
emanated from some supreme sources (other than any political and worldly authority). Various
theories have been propounded since very early times about the source, authority and relations
of natural law i.e. rules and those of law i.e. positive law.
Some says that these rules have come from God, some find their source in nature, others says
that they are product of reason, therefore these rules have been given different names by
different jurists on the basis of their source or Divine law, Moral Law of nature, natural law, law of
God etc. The natural law theories reflect a perpetual quest for absolute justice. It is a rule
something higher than positive law.
The theories propounded by natural law jurists support existing authority, but it should not be
presumed that the natural law is only of limited use. It is the influence of natural law. This Civile of
Roman was transformed into a very comprehensive system. In medieval times the Church and
the Germany Emperor in their fight against each other supported their case by natural law theory.
After the French revolution, the right of individual given in the constitution as inalienable were
said to be based on natural law. The American constitution also incorporated many principles of
natural law. Even the validity of international law has been asserted by many jurists on the basis
of observation taken from natural law.
The natural law school jurists insist that no social norm can be called law unless it satisfies a
criterion of intrinsic worth which may be either religion or ethics or moral or social good.
Otherwise there will be no difference between the kinds of social norms which a tyrant like Hitler
may law down. Therefore satisfaction of criteria which goes to the quality of law is inherent in the
idea of law (unjust law is no law).
According to Salmond, Natural or moral law means the principles of natural right and wrong.
According to Blackstone Natural law being co-existing with mankind and emanating from God
himself is superior to all other laws.
Natural law theories may be divided into following heads:(i) Ancient Theory
(ii) Medieval Theory
(iii) Renaissance Theory
(iv) Modern Theory.
According to Aristotle Law is either universal or special and perfect law is inherent in the nature
of man and is capable of growth
According to Grotious- No law is immutable which cannot be changed by God himself. He
considered divine law as the grandfather, natural law as parent and positive law as the child.
REVIVAL OF NATURAL LAW:Towards the end of 19th century a revival of the natural law theories took place. The pure
positivists approach failed to solve the problem created by changed social conditions. The
unprecedented progress and its effect on the society made the thinker to look for some values
and standards, the world war of both century and the general moral degeneration which the world

is facing in modern times compelled the people to re-look at present legal system. The
emergence of ideologies such as Fascism and Marxism caused development of counter
ideologies and thus contributing to the revival of natural law theories.
The new approach of natural law is concerned with the practical problems and not with abstract
ideas. It attempts to take help from new legal theories putting emphasis on societies. Among the
philosopher who gave their theories in the present century were Stammler, Kohler.
Stammler- Stammler says that All positive law is an attempt at just law and that is justice within
the framework of the social life. The Harmony and wills and purposes varies according to the
time and place. For the knowledge of wills and purpose one must come in actual contact of living
social world. This will enable the person to differentiate between just and unjust. The law is valid
even if it does not according to this just but attempt should be made to bring it near its aim.
This concept has been called by Stammler as a natural law with a variable content.
Kohler: He gives a new interpretation to legal history. He says that legal interpretation should not
be materialistic. The society in the course of evolution advances morally and culturally as well.
Taking the requirement of culture into considerable law can serve its purpose better. He says that
there is no eternal law.
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SOCIOLOGICAL SCHOOL
(Roscoe Pound (1870-1964)
Introduction:
With the advent of twentieth century, her legal thought emerged as the sociological school.
Nineteenth Century positivist jurisprudence regarded law as a set of rules enforced by the State.
This was a correct view of law, since law has a narrative structure, but the defect in it was that it
refused to consider the social and economic circumstances which gave rise to their rules.
Sociological jurisprudence arose as a reaction to positivism and its main contribution was
broadening the scope of jurisprudence. According to sociological jurisprudence law is not an
isolated phenomenon but is a part of the social creativity. Hence law can only be correctly
understood in its socio-economic background.
Sociological school includes a number of approaches made since the end of the last century.
There approaches are more diverse than uniform. The common field of study in the joints who
made such approach is the effect of law and society on each other.
Relations between Individual State and Society:In the beginning, society was governed by the custom which had only social sanction. Then there
came the supremacy of priests. Afterwards the secular State emerged and it dominated all
institutions. How the necessity of balancing the welfare of the society and the individual was
realised. Then there came a tendency of socialization and it leads the emergency of sociological
school.
Powers of the sociological thought:
(a) August comtes Scientific Positivism - He was the first to use the term Sociology. He

stressed on the application of scientific method to the science of sociology so that it can progress
with the help of scientific principles.
(b) Herbet Spencers Organic theory of the society Professor Allen has summarized this
concept as a mutual relation of all members of civilized society and the distribution of a sense of
responsibility far wider that can be compromised within the formula Sovereign and Subject.
(c) Duguit- He made a distribution between two kinds of need of men in society.
Firstly, there are common need of individuals which are satisfied by mutual assistance.
Secondly, there are diverse needs of individuals which are satisfied by exchange of service.
Therefore, the division of labour is the most important fact of social cohesion. He named it
social solidarity.
Roscoe Pound
Pound is considered to be the father of sociological jurisprudence in America. He comes from
Harvard Law School and has a great academic favour. He is the most systematic writer on
sociological jurisprudence. Pound concentrates more on the functional aspect or law and for him
the end of law should be to satisfy a maximum of wants with a minimum of friction. So the
meaning, interpretation and application of law take account of social facts.
Doctrine of Social Engineering:According to Pound law is not a set of rules but is a method or technique for harmoning
conflicting social interests. Law should be to harmonize their interests so as to satisfy the
maximum of wants, and eliminate friction and waste. This, by social engineering, Pound means a
balance between the competing interests in the society. For example, if a factory is polluting the
environment and an injunction suit is filed for the closing of the factory, the court may balance
various claims and interests, example, the claim of the owner of factory to do his business, the
claim of the workers to retain their jobs and the claim of the local residents to have a clear
environment.
Pound lays down a method which a jurist should follow for social engineering. He should study
the actual social effects of legal institutions, study the means making legal rules effective,
sociological study in preparation of law making. Thus, a jurist must take help of social
investigation which making law.
Interests as the main subject matter of law:In short, Pounds theory is that the interests are the main subject matter of law and the task of
law is the satisfaction of human wants and desire. It is the duty of law to make a valuation of law
i.e. to select most valuable objectives of society and to secure them.
He divided interest into three categories:(a) Individual interest.
(b) Public interest.
(c) Social interest.
Criticism against Pounds Theory:A general criticism against Pounds theory is regarding his use of the word engineering because
it suggests a mechanical application of the principles to social needs. He does not give an ideal

scale of values with reference to interests. In fact, Pound himself has admitted that philosophy
has failed to provide an ideal scale of values and that the best that jurist can do is to proceed with
the task of adapting law to the need of his generation.
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THE REALIST SCHOOL
(AMERICAN REALISM)
Llewellyn says that Realism is not a school of jurisprudence. At the best it may be called a
branch of sociological jurisprudence. They is why sometimes it is called the left wing of the
functional school. It differs from the sociological school in this respect that it is little concerned
with the ends of law. It concentrates on a scientific observation of law in its making and working.
This is called realist because this approach studies law as it is the actual working and its effect.
They reject the traditional definition of law that it is body of rules and principles that courts
enforce.
Factors responsible for this approach:This first is Influence of Pragmatic philosophyRealistic approach turns away from abstraction and insufficiencies and turns towards
completeness and adequacy, it means that the practical temper was adopted and the rationalist
temper was given up. That is from the age of dogmas they entered into the world of reality and its
welfare.
The second and most important fact which led to the foundation of realistic school is the
organisation of judiciary in that country. The America S.C. has the final authority to interpret the
law and to judge its validity. The existence of separate State jurisdiction has caused multiplicity of
law and decisions. These all made some jurist to concentrate on court to know the actual working
of law and to study those factors which influence it. As their jurists made a actual working and
effect of law, the subject matter of their study they were called Realist.
Origin of Realist School/Approach:Two great jurist are regarded as the pioneer of Realistic Approach, they are, Gray and O.W.
Holmes. Among these, Holmes is regarded as the spiritual father of this school.
Gray defined law as what the judges declare. He emphasised the fact that the personality and
the personal views of judge play an important role in decisions.
Holmes stated that to tell it as it really is or to find the truth or law, we must look at law in
action as opposed to the doctrinal approach. For Holmes the theory is the most important part of
the principle of law and therefore he stressed the need for a legal theory.
Jerome Frank made a very close examination of judicial process with practical utility. He says
Law is what the court has decided in respect of any particular set of facts prior to such a
decision. The opinion of lawyer is only a guess as to what the courts will decide and this court be
treated a Law unless the court decides by its judicial pronouncement. He says certainty of law is
myth.

Characteristics of Realist School:According to Llewellyn a Law is a tool to social ands and any part of it needs constant
examination for its purpose and effect. It implies the conception of society which changes faster
than the law. Therefore, it is the duty of the jurists to examine how the law meets contemporary
social problems. Realism distrusts traditional legal rules and concepts and more concentrates
on what courts and people actually doing. Realism defines rules on generalized prediction of
what the court will do.
Wilhelm, a Scandinavian jurists of Realist School says law is nothing but the very lite of
mankind in organised groups and the foundation which make possible co-existence of masses of
individuals. According to him the great mistake of traditional jurisprudence is to have regard for
the justice, whereas the feeling of justice is guided by the law as it is enforced.
The American realists, like all Anglo-American Lawyers, are inclined to place the decision of the
law courts in the centre of the law and they concentrate the law on the decision of the courts.
Criticism against this approach:The realists have undermined the importance of legal principles and rules and regard law as a
composition of unconnected decisions for them law is not predictable at all but it is only a series
of applications and executions. But their own phraseology fails to support their contention. They
were talking about application of rules but forget to tell application of What? and it itself indicates
the pre-existence of principle and rules.
They emphasised the human factor in judicial decisions. Undoubtedly, it plays an important roe
but it does not mean that judicial determination are the result only of the personality of judge.
The Realist approach of American jurist is based on and is concerned with their own local judicial
setting, and therefore it does not given a universal method. It can be applied only in the society
where the social forces have had their role/influence in the law-making as in common law
systems.
Contribution to Realist Approach:The Realist school has made some valuable contribution to the jurisprudence. They were also
positivist in their approach and are not concerned with any theory of justice or natural law. They
emphasised on the comprehensive approach and examination of all factors that lead in reaching
a decision.
Professor Friedman says that this approach in its true perspective is an attempt to nationalize
and modernise the law by utilizing scientific methods.
Julius stone thinks that Realist movement is a floss on the sociological approach. What is
needed is that this approach should taken a more balanced view and then it can be of great help
in studying the legal problems. In recent days the realist writers have tried to follow the
importance of principles and rules.
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MARXIST APPROACH ON LAW AND STATE


(ECONOMIC APPROACH OF LAW)
The economic approach of law having its origin in the words of Marx and Engles is called the
Communist Theory of Law. The economic approach as envisaged in the work of Marx has
mainly flourished in the Soviet Union, and that is why sometimes it is called as Soviet Legal
Theory.
Karl Heinrich Marx was a German philosopher, economist, historian and revolutionary socialist.
His ideal played a significant role in the development of social science and the socialist political
movement. He published various books during this lifetime with the most notable being The
Communist Manifesto and Dass Capital. Some of his works were co-written with his friend
Friedrich Engles, a German revolutionary socialist.
K. Marx is generally regarded as the Father of Economic and Communist approach of law. The
historical book The Communist Manifesto written by Marx got importance in the development of
socialist and communist legal theory. The core area of Marxs work is that history in all existing
societies is the history of class struggle. Class struggle lies at the base of social conflict and the
social and economic development.
To illustrate in theory of class conflict, Marx listed the different stages of community development.
In the primitive stage of the exploitation of men by men there is a slavery. There is complete
exploitation of slaves by dominant classes.
The Second Stage in the social development is the feudal system. It is based on land holding
and property. The landlord exploits the workers.
Then there comes the third stage when there is rise of a merchant middle class. It marks the
beginning of a Capitalist Society. At this stage, domination passes from feudal to capitalist.
Marx envisages the final stage of development of the socialisation of society leading to the stage
of perfect communism, when all capitalists and feudal elements have been eliminated either by
evolution and revolution.
Law as an instrument of suppression:The peculiar nature of Marxs study of law and its relation with the State is that he was not
concerned with giving definition of law. Rather he was interested to study how law is created.
According to him, one of the main functions of law is to secure power relationship.
According to Marx, law represents what he calls superstructure. Law is a tool which is used in
order to further the end of economically dominant and exploiting class at the expense of the
proletariat i.e. the suppressed class.
Marxs Fundamental approach to law:In Marxs study we find three fundamental approaches to law:
a) Law is either coercion and therefore treats man as an animal, to be determined from without
and not by inner universal rules of his being or it is the systemisation of freedom, of the inner
rules of human activities, losing any independent or external force;
b) Law is a form of human alienation, which tears the judicial subject out of its human and social
context, which abstract and mystifies and rests on illusion made possible by such abstraction

the illusion of free-will and autonomy, the illusion of autonomy;


c) Law is the reflection and protector of specific modes of production, forms of economic
organisation and of class domination. Law in the crudest version to be found in the works of Marx
and Engles, is simply the will of ruling class.
State and the Law to wither away:According to Marx, State and the law are temporary phenomena. Revolution is inevitable. This
will break the power of State, with the abolition of classes, the power of the State would
disappear and governmental functions will be transformed into simple one. In a perfect
communist society three will be no state because there will be no need for one and the existence
of law and state will come to an end. The concept of State shall come to an end. The
Government over persons is replaced by the administration of things and the direction of
process of production. The State is not abolished (as anarchists demand), it wither away.
Pashukaniss contribution to Economic Approach:Pashukanis is the leading exponent of Marxist jurisprudence from Soviet Russia. His maker
concerns is that the law like the State is a tool of oppression in a capitalist societies. He states
that law would ultimately vanished to give place to administration. In a socialist community, the
public sector becomes the ruling factor. There will be no fixed rules but only a guides to
administrative direction.
Concluding remarks:Marxist views about the State and law have been criticised mainly on two grounds:(i) that Marx analysis of society and his predictions are what a revolution would achieve.
(ii) Non-applicability of theory to contemporary society, whether of East or West.
Marxism conceives law and state as tools of exploitation of capitalist suppression. It is to be
wither away after the proletariat have assumed power. However, it has not come true. It is to be
stated that all the legal thinkers talk of law and differ only in respect of its contents and purpose.
The nature of law, whether it be that of a capitalist or a socialist community, that of a State or a
semi-State, remains and always will remain normative. The content of law will vary with time and
place and the ideology, but, the character of law will remain constant to say that law is always
directed towards an undesirable socio-economic end and is therefore undesirable.