Major Schools of Jurisprudence: Explained with Key Thinkers and Concepts
Jurisprudence is the theoretical study of law, helping us understand its purpose, nature, and functioning in society. Several schools of jurisprudence have emerged over time, each with a different approach to how law should be interpreted. Here’s an overview of six major schools of jurisprudence with important thinkers and principles.
1. Analytical School (Legal Positivism)
Also known as Imperative School, Positive Law School, English School, or Austinian School, this school focuses on the logical structure and analysis of law, rather than its moral content.
🔹 Key Idea:
Law = Command of the sovereign backed by sanction.
Jeremy Bentham, the founder of utilitarianism, believed that the purpose of law is to ensure the greatest happiness for the greatest number. He rejected natural rights and disliked judge-made law, advocating for codification. His famous book: The Limits of Jurisprudence Defined.
John Austin, often regarded as the father of English jurisprudence, emphasized that only laws made by the sovereign and backed by sanctions are “laws properly so called”. His work Province of Jurisprudence Determined (1832) divided laws into:
• Laws properly so called: Commands from a sovereign (e.g., IPC).
• Laws improperly so called: Customs, moral rules, scientific laws.
H.L.A. Hart refined Austin’s theory with his book The Concept of Law. He introduced:
• Primary rules: Substantive obligations (e.g., do not steal).
• Secondary rules: Rules about making and interpreting laws (e.g., Constitution).
Hans Kelsen, through his Pure Theory of Law, emphasized that law is a hierarchy of norms, and its ultimate source is a Grundnorm (Basic Norm), like “The Constitution must be obeyed”.
🔻 Criticism of Analytical School:
1. Ignored customs and moral foundations.
2. Overemphasis on command and sanction.
3. Dismissed international law.
4. Neglected the role of judiciary and permissive laws.
2. Historical School
This school believes law is not created but evolves with society through customs, traditions, and national spirit (Volksgeist).
Friedrich Karl von Savigny, the father of this school, argued that law grows organically from the people’s beliefs, not from rulers. Henry Maine, in his book Ancient Law, observed the evolution of law from status to contract. Puchta and Hugo further emphasized that law is shaped by collective consciousness.
Example:
The Hindu Marriage Act, 1955 formalized customs that already existed.
3. Sociological School
This school sees law as a tool for social engineering, focusing on how law affects people’s lives and promotes justice, equality, and social welfare.
Roscoe Pound, the most influential figure, said:
“Law is social engineering”—it should fix societal problems like an engineer repairs machinery.
Other notable thinkers:
• Eugen Ehrlich: Introduced the concept of “Living Law”, found in people’s actual behavior.
• Leon Duguit: Emphasized social solidarity over state sovereignty.
• Ihering: Believed law exists to protect social interests, not just individual rights.
Example:
Child Labour Laws protect vulnerable children, reflecting law’s role in solving social issues.
4. Realist School
This school asserts that law is what the courts do, not just what is written in statutes. It focuses on judicial behavior, real-life application of laws, and how judges’ personal views and facts influence decisions.
Oliver Wendell Holmes Jr. said:
“The life of the law has not been logic; it has been experience.”
Jerome Frank introduced “Fact Skepticism”, saying that judges are influenced by their backgrounds.
Karl Llewellyn stressed the difference between “law in books” and “law in action”.
Example:
Different judgments for the same crime reveal how judicial discretion shapes the law.
5. Philosophical (Natural Law) School
This school holds that law must be rooted in morality, ethics, and justice. It connects law with what is right, not just what is written.
🔹 Key Idea:
Law = Morality + Justice
Socrates, Plato, and Aristotle laid early foundations. Plato said that justice is the highest aim of the state. St. Thomas Aquinas argued that law must reflect God’s will and moral values.
Immanuel Kant emphasized law should protect freedom and human dignity, while Rudolf Stammler believed justice is the purpose behind all laws.
Example:
Laws against slavery or racial discrimination reflect moral truth, even if such practices were once legal.
• Landmark judgements
1. Analytical School (Legal Positivism)
This school focuses on law as it is (not what it ought to be), emphasizing sovereign authority and codified law.
ADM Jabalpur v. Shivkant Shukla (1976) — Habeas Corpus Case
• Facts: During Emergency, right to life under Article 21 was suspended.
• Relevance: The majority judgment reflected legal positivism, stating that if law permits detention, courts cannot interfere, even if it seems unjust.
• Criticism: Later overruled in Puttaswamy case; criticized for ignoring natural rights.
State of Andhra Pradesh v. McDowell & Co. (1996)
• The Supreme Court held that a law cannot be struck down merely because it is unjust, reaffirming Austinian positivism.
2. Historical School
This school values customs, traditions, and the spirit of the people (Volksgeist).
M. Ismail Faruqui v. Union of India (1994)
• Context: Ram Janmabhoomi-Babri Masjid dispute.
• Relevance: Court considered the historical and customary significance of the site to the Hindu community.
Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) (Privy Council)
• Recognized customary Hindu law, showing that law derives authority from age-old customs.
3. Sociological School
This school focuses on law as a tool for social change and welfare.
Vishaka v. State of Rajasthan (1997)
• Relevance: Court laid down guidelines to prevent sexual harassment at workplace.
• Reflection: Shows law evolving to meet social needs, even without specific legislation — Roscoe Pound’s theory of law as social engineering.
Joseph Shine v. Union of India (2018)
• Issue: Decriminalization of adultery.
• Relevance: Reflected changing societal values, and the Court emphasized individual dignity over archaic morality.
4. Realist School
Focuses on what courts actually do rather than what laws say.
Indira Nehru Gandhi v. Raj Narain (1975)
• Relevance: Reflected the practical realities of political influence, and judicial discretion.
State of Punjab v. Gurmit Singh (1996)
• The Court emphasized sensitivity to victims in rape cases, departing from strict procedural norms — reflecting law in action, not just law in books.
5. Philosophical / Natural Law School
Focuses on morality, justice, and natural rights.
Kesavananda Bharati v. State of Kerala (1973)
• Relevance: Supreme Court upheld the Basic Structure Doctrine, stating that certain fundamental principles like justice and liberty cannot be destroyed even by Parliament.
• Reflects natural law philosophy — some rights and principles are beyond legislative control.
Maneka Gandhi v. Union of India (1978)
• Expanded Article 21: “Right to life and personal liberty” includes due process of law.
• Recognized human dignity and justice — aligning with natural law principles.
√ While case laws do not directly declare allegiance to a school, their reasoning and approach often reflect jurisprudential ideologies. Knowing which theory a case supports can help you connect practical application to legal philosophy — which is vital for judiciary exams and legal analysis.
Conclusion
Each school of jurisprudence brings a unique lens to understanding law:
• Analytical School prioritizes structure and sovereignty.
• Historical School values tradition and evolution.
• Sociological School sees law as a force for societal change.
• Realist School emphasizes practical functioning of courts.
• Philosophical School ties law to ethics and justice.
✓ For judiciary aspirants, understanding these schools is crucial to grasp the foundations of legal thought and interpretation. Together, they shape how we see, apply, and evolve the law in society.
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