Schools of jurisprudence/ School of thoughts
Over the years, five schools of jurisprudence have emerged, each with its own unique perspective on the nature of law and its application. These schools of thought have contributed significantly to the development of legal theory and have provided important insights into how the law should be interpreted and applied in different contexts. These schools are as follows:
- ANALYTICAL SCHOOL
- HISTORICAL SCHOOL
- PHILOSOPHICAL SCHOOL
- SOCIOLOGICAL SCHOOL
- REALIST SCHOOL
Analytical school
During the 19th century, the analytical school of jurisprudence gained prominence as a dominant force in legal theory, ultimately supplanting the natural law school and relegating it to a secondary position. Analytical jurists believe that the most important aspect of law is its relation to the state, and they view law as a command of the sovereign.This school is also known as the imperative or positive school. According to this school, law is viewed as a command of the sovereign. This idea reflected the imperative school of thought. The positive school, on the other hand, emphasizes on the analysis of positive law, which means law as it exists, rather than law as it ought to be.
This school is led by two main jurists - John Austin and Jeremy Bentham. Interestingly, John Austin, who is referred to as the father of analytical jurisprudence, was a student of Bentham.
The analytical school has also produced other prominent legal scholars such as Kelsen, Hart, and Salmond. Through their work, these jurists have contributed significantly to our understanding of the law and its relationship to the state. The analytical school's emphasis on positive law and the role of the state in shaping legal systems continues to be an important area of study in contemporary legal theory.
Historical school
The Historical School is one of the major schools of
jurisprudence. The fundamental ideology of this school is that law is not
created but rather discovered and recognized. The main jurists of this school
are Savigny, who is often referred to as the father of the Historical School,
and Puchta. Other prominent jurists of this school include Montesquieu
(founder), Hugo, and Burk.
The Historical School rejected the idea that law is based on
abstract reasoning or moral principles. Instead, it emphasized on the importance
of historical, cultural, and social factors in shaping the law. This school of
thought views the law as an expression of the collective consciousness of a
society, and it emphasizes on the need to understand the historical and cultural
context in which the law develops.
Historical legal advisors sought to distance themselves from
moral philosophy and imaginative thinking in law. They rejected the idea that
judges or law specialists should play an active role in shaping the law,
preferring instead to see the law as something that develops organically over
time.
Philosophical school
The Philosophical School, also known as the Moral, Natural,
Divine, or Metaphysical School, is another significant school of jurisprudence.
This school emphasizes that law must not only be derived from divine sources or
natural principles, but also from reason. In other words, the law must be fair,
just, and reasonable. This school of thought has its roots in the modern concept
of the Historical School of jurisprudence. Hugo Grotius, a Dutch jurist, is referred
to as the father of the Philosophical School. Other prominent jurists of this
school include Hegel and Maine.
The Philosophical School views the law as an embodiment of
moral principles and values, and it emphasizes on the need for the law to be
grounded in a sense of justice and morality. This school of thought asserts
that the law should promote the common good and ensure that individuals are
treated with dignity and respect.
Sociological school
The Sociological School of jurisprudence is one of the most influential schools of thought and it was adopted by all. This school believes that law and society have a reciprocal relationship, with each influencing the other. In other words, the law is viewed as an instrument of social progress, helping to shape and improve society.
The Sociological School has its roots in both the Historical
and Philosophical Schools of jurisprudence. Due to revolts and political developments
during the 19th and 20th centuries, there was a need to establish a balance in
society for the betterment and welfare of its citizens. This led to the
development of the Sociological School, which emphasized the importance of
understanding the social and economic context in which the law operates.
Auguste Comte is often considered the father of the Sociological School, and other prominent jurists of this school include Duguit, Inhering, Ehrlich, Pound, and Spencer.
Realist school
Realist School of jurisprudence emphasizes on the importance of
understanding the practical implications of the law, rather than focusing
solely on abstract legal concepts. According to this school of thought, the law
should be based on sanctions and punishments, and believed that the law must be
the orders passed by judges, and that these orders must be followed, otherwise
it would be considered contempt of court and subject to punishment.
The Realist School is divided into two groups: the American
and the Swedish schools. The American Realist School includes prominent legal
scholars such as Gray and Holmes (considered the father of this school), Frank,
and Llewellyn. These scholars believed that law should be based on empirical
evidence and the practical consequences of legal decisions, rather than
abstract legal principles.
The Swedish Realist School, on the other hand, includes scholars such as Allen, Olivecrona, Ross, and Hägerström. They focused on the role of language and communication in legal reasoning and decision-making, arguing that legal concepts are socially constructed and therefore can change over time. The Realist School of jurisprudence challenged traditional legal theories and emphasized the importance of understanding the practical implications of legal decisions.
Conclusion
Jurisprudence is the systematic and scientific study of law. The five schools of jurisprudence that have emerged over time each provide unique
perspectives on the nature of law and its application. The Analytical School
emphasizes on the relationship between law and the state, viewing law as a command
of the sovereign. The Historical School emphasizes on the importance of
historical, cultural, and social factors in shaping the law. The Philosophical
School asserts that the law must be grounded in a sense of justice and
morality. The Sociological School emphasizes on the reciprocal relationship
between law and society, with each influencing the other. Finally, the Realist
School emphasizes on the importance of understanding the practical implications of
the law, rather than focusing solely on abstract legal concepts. The
development of these schools of thought has contributed significantly to the
development of legal theory, enhancing our understanding of the law and its
role in society.
References
Lec 3-Jurisprudence(3rdSem) by Neelam Kumari.pdf (patnalawcollege.ac.in)
Meaning, Scope and Nature of Jurisprudence - Indian Law Portal
Schools of Jurisprudence - An Overview | Law column
Schools of Jurisprudence along with Eminent Thinkers- iPleaders
B.N. MANI TRIPATHI- JURISPRUDENCE THE LEGAL THEORY
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