UNIT - II. He ana lysed rights and duties which were adopted and improved upon by late jurists like Austin and by many, even in the 20th century.

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1 trictly for Internal Circulation - KCL UNIT - II CHOOL OF JURIPRUDENCE - I Bentham: Austin is considered to be the father of analytical or positivist thought. However, Jeremy Bentham whose many works have lately come to light appears to be the founder of this approach. Austin owes much to Bentham and on many points his propositions are not more than a 'paraphrasing of Bentham's theory. Jeremy Bentham ( ) heralded a new era in the history of legal thought. He laid the foundation of positivism in the modern sense of the term. Bentham's Definition of Law: He defined law as follows "A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question." He ana lysed rights and duties which were adopted and improved upon by late jurists like Austin and by many, even in the 20th century. The purpose of law is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on which a law should be judged. All considerations of justice and morality disappear from this approach. For Bentham the right relationship between positive law and morality or moral criticism was expressed in the maxim" 'Obey punctually censure freely.' Bentham's Contribution: Bentham's contribution to legal theory is the epoch making transition from the peculiar brand of natural law doctrine in the work of Blackstone to a rigorous positivism. If represents one of the major developments in the history of modern legal theory. He gave new directions for law making and legal research. "With Bentham came the advent of legal positivism and with it the establishment of legal theory as a science of investigation as distinct from the art of rational conjecture. Bentham laid the foundations of this new approach, but, far from containing the solution to problems involving the nature of positive law, his work was only the beginning of a very long and varied series of debates, which are still going on today. Criticism Against Bentham: Bentham's theory has its weaknesses. "The main weakness of Bentham's work" says Friedman, "derives from two shortcomings". One is Bentham's abstract and doctrinaire rationalism which prevents him from seeing man in all his complexity, in his blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This 24

2 trictly for Internal Circulation - KCL leads Bentham to an overestimate of the power of the legislator and an underestimate of the need for individual discretion and feasibility in the application of law. The second fundamental weakness stems from Bentham's failure to develop clearly his own conception of the balance between individual and community interests." Many of his propositions are neither convincing nor prove true in practical application. John Austin: ( ) he is the father of English Jurisprudence and the founder of the Analytical chool of Jurisprudence. He was elected to the Chair of Jurisprudence in the University of London in Then he proceeded to Germany and devoted some time to the study of Roman Law as it was taken in Germany. The scientific treatment of Roman Law there made him aware of the chaotic legal exposition of law in his own country. He took inspiration from it and proceeded to make a scientific arrangement of English Law. The method which he applied was essentially of English origin. He avoided metaphysical method which is a German characteristic. John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions of what it ought to be. According to Austin, positive law consists of commands, set as rules of conduct, by a overeign member(s) of the independent political society wherein the author of the law is supreme and opposed to model and natural law. Every law properly so called, must have three elements of Command, anction and overeign. It emanates from overeign and has binding force and is authoritative. The law is command of overeign Commands employees' duty and sanction. Command and duty are correlative terms anction an enforcement of obedience. Further it shall be convenient to discuss Austin's theory under two main heads- 1) Austin's conception of law. 2) His method. 1. Austin's Conception Law: Law in the common use means and includes things which cannot be properly called 'law'. Austin defined. law as 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.' Law of two kinds- i) Law of God, and ii) Human Laws This may be divided into two parts- i) Law of God-Laws set by God for men. ii) Human Laws-laws set by men for men. Two Kinds of Human Laws: Human Laws may be divided into two classesa) Positive Law: These are the laws set by political superiors as such, or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject-matter of jurisprudence. 25

3 trictly for Internal Circulation - KCL b) Other Laws: Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors or by men in pursuance of legal rights) Analogous to the laws of the latter class are a number of rules to which the name of law is improperly given. They are opinions or sentiments of an under-terminate body of men, as laws of fashion or honour. Austin places International Law under this class. In the same way there are certain other rules which are called law metaphorically. They too are laws improperly so called. A chart presenting this division clearly is given below: LAW Law of God Law properly so called Positive laws (or laws trictly so called) et by political uperior to political inferior or by private Persons in pursuance of a legal right Human Lws Laws not set by men, as political superior, or in pursuance of a legal right Positive morality Laws by analog As laws of fashion "Laws proper, or property so called, are commands; laws which are not commands, are laws improper or improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into the following four kinds: 1) The divine laws, or the laws of God; that is to say, the laws which are set by God to his human creatures. 2) Positives laws; that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. 3) Positive morality, rules of positive morality or positive moral rules. 4) Laws metaphorical or figurative, or merely metaphorical or figurative. Law improperly so called Law by metaphor, i.e., laws of gravity Criticism against Austin's Theory: Austin's theory has been criticized by a number of jurists and by some of them very bitterly, Bryce went to the extent of saying that 'his contributions to juristic science are so scanty and so much entangled in error that his book ought no longer to find a place among those prescribed for students. However, this is an extreme view. The main points of criticism against Austin's are as follows- a) Customs Ignored: 'Law is the command of sovereign', as Austin says, is not warranted by 26

4 trictly for Internal Circulation - KCL historical facts. In the early times, not the command of any superior, but customs regulated the conduct of the people. Even after coming of state into existence customs continued to regulate the conduct. Therefore, customs should also be included in the study of jurisprudence, but Austin ignored them. b) Law Conferring Privileges : The law which is purely of a permissive character and confers only privileges, as the Wills Act, which lays down the method of drawing a testamentary document so that it may have legal effect, is not covered by Austin's definition of law. c) Judge-made Law: In Austin's theory there is no place for judge-made law. In the course of their duty judges (in applying precedents and in interpreting the law) make law. Though an Austinian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign. Nobody, in modern times, will deny that judges perform a creative function and Austin's definition of law does not include it. d) Conventions: Conventions of the constitution, which operate imperatively, though not enforceable by court, shall not be called law, according to Austin's definition, although they are law and are a subjectmatter of a study in jurisprudence. e) Rules et by Private Persons: Austin's view that 'positive law' includes within itself set by private persons in pursuance of legal rights is an undue extension because their nature is very vague and indefinite. f) International Law: Austin put International Law under positive morality along with the law of honour and the law of fashion. "The so called law of nations consists of opinions or sentiments current among nations generally. It, therefore, -is not law properly so called." The main ingredient of law lacking in International law is sanction but this alone will not deprive it from being called law. Now nobody will accept that International law is not law. Therefore, according to Austin's definitiol1, a very important branch of law shall be excluded from the study. g) Command Theory Untenable: A modern theorist, Prof. Olivecrona from weden has denied the applicability of the idea of command to law. He says that a command and not identical with a declaration of will. There is a difference between a command had the statement or declaration of a will. A command is always an act through which one person seeks to influence the will of another. Command presupposes some determinate person who commands and another to whom the command is addressed. In modern times, the machinery of state remains always changing and it is run by a multitude of persons. Therefore, the idea of command does not apply in such systems. h) It is Artificial: The view that law is 'command of the sovereign' suggests as if the sovereign is standing just above and not as part of the community giving his arbitrary commands. This view treats law as artificial and ignores its character of spontaneous growth. The sovereign is an integral part of the community or state and his commands are the commands of the organized community. Most of the theories regarding state, in modern times, say that the sovereignty does not remain in the shape in which it was conceived by the writers of past ages. They say that state itself is sovereign and law is nothing but the general will of the people. Therefore, the law cannot be said to be a command. i) anction is not the Only Means to Induce Obedience: According to Austin's view, it is the sanction alone which induces man to obey law. It is submitted that it is not a correct view. Lord Bryce has summed up the motives as indolence, deference, sympathy, fear, and reason that induce a man to obey 27

5 trictly for Internal Circulation - KCL law. The power of the state is ratio ultima- the force which is the last resort to secure obedience. j) Relation of Law and Morals Overlooked: According to Austin, the science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness. In other words, Law is not concerned with morals. But this is not a correct proposition. The origin of the words 'right' 'wrong' and 'duty' etc. owe their origin to certain ethical notions. Austin overlooked this aspect of the law. Austin's Contribution: Opening a new era of approach: These are the weaknesses of Austin's theory pointed out by his critices. Every theory has its limitations. Moreover, Austin laid down many of his propositions as deducted from English law as it was during his time. The credit goes to Austin for opening an era of new approach to law. He was intimate to great thinkers and philosophers of his time like Bentham and Mill and he was greatly praised by Mill. Austin wiped out many false notions which had obscured the true meaning of law and legal terms. His stand was to expel from the mind all ethical notions while considering the nature of 'positive law'. He gave a death blow to the theory of natural law. Austin's Influence: The influence of Austin's theory was great due to its simplicity, consistency and clarity of exposition. That is why Gray remarked: 'If Austin went too far in considering the law as always proceeding from the state, he conferred a great benefit on jurisprudence by bringing out clearly that the law is at the mercy of the state.' Austin's method is described as characteristic of English Jurisprudence. Prof. Allen says: 'For a systematic exposition of the methods of English jurisprudence we will have to turn to Austin'. The same is true about America also because Austin's method was greatly adopted there. almond and Gray further improved upon it and considerably modified the analytical positivist approach. They differ from Austin in his emphasis on sovereign as law giver. According to almond, the law consists of the rules recognized and acted on by the courts of justice. Gray defines law as what has been laid down as a rule of conduct by the persons acting as judicial organs of the state. This emphasis on the personal factor in law, later on, caused the emergence of the 'Realist' school of law. The Pure Theory of Law: Hans Kelson of Viena chool erects an independent self-supporting structure of law. According to him, theory of law should be universally applicable in all times and in all places. His idea of 'Grundnorm' which may be said to be the foundation stone of the 'Pure Theory'. 'Pure Theory is Close to ome Other Theories': Kelsen's theory is in some respects close to the theory of Austin. Both point out the coercive character of law and both are positivists. In one respect it is close to Realists as it too wants to remove all illusions and distractions from law. ome of the Kelsen's conclusions, though reached from different premises, bring him close to sociologists and specially to Duguit. But the main point of his theory is that it proceeds to free "the law from the metaphysical mist with which it has been covered at all time by the speculations on justice or by the doctrine of 'jus naturalie'. Therefore, his theory is called the "Pure Theory of Law" and his theory contains many elements- ethics, sociology, politics and history and it claims to be pure. These elements are known Extra Legal Considerations. 'Pure Theory of Law': Law is a Normative cience; Law Norms are 'Ought' Norms: According to Kelsen, law is a 'normative science.' But law norms have a distinctive feature. They may be distinguished from science norms on the ground that norms of science are norms of being or I' (ein), while the law norms are 'Ought' (ollen) norms. Law does not attempt to describe what actually occurs but only prescribes certain rules. It says, 'if one breaks the law, then he ought to be punished.' These legal 'Ought' norms differ from 'morality' norms in this respect that the former are backed by physical compulsion which the latter back, but 28

6 trictly for Internal Circulation - KCL Kelsen does not admit the command theory of Austin as it itroduces a psychological element into the definition of law which Kelsen avoids. Hierarchy of Normative Relations: The science of law to Kelsen is the knowledge of hierarchy of normative relations. He builds on Kant's theory of knowledge and extends this theoretical knowledge to law also. He does not want to include in his theory 'what the law ought to be and speaks of his theory of law as a structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or political judgements of value.' The task of legal theory is to clarify the relations between the fundamental and all lower norms, but not to say whether this fundamental norm itself is good or bad. That is the task of political science, or of ethics, or of religion. It represents within the realm of legal theory the quest for pure knowledge in its most uncompromising sense, for knowledge free from instinct, volition, desire. Thus the 'Pure Theory' on the one hand, avoids any discussion of ethics or natural law, and, on the other hand, it reacts against the modern sociological approaches which go to widen the boundaries of jurisprudence to a very large extent. Kelsen attempts to establish universal principles in his legal theory, and, therefore, he may be said to be in favour of general jurisprudence. Validity of Legal Norm; 'Grundnorm'; Dynamics Process: Now coming back to the 'norm', we should understand its practical working in a legal system. Every legal act relates to a norm which gives legal validity to it. The legal norm derives its validity from an external source, that is, from a particular 'ought norm' or sanction. Here, Kelsen comes near Austin (that is, from a particular 'ought norm' or sanction. Here, Kelsen comes near Austin (that the sanction is the necessary element of law), but he differs from him about the conception of the sanction. Austin's idea of sanction implies as if it is something standing outside the rule of law, but Kelsen's sanction is itself another norm not different in nature from the norm which it supports. In this way every legal norm gains its force from more general norm which backs it, 'Grundnorm', and it is from this norm that all inferior norms derive their force. The 'Grundnorm' is the starting point in a legal system. From this base a legal system broadens down in gradation, becoming more and more detailed and specific as it progresses. Kelsen calls this process 'gradual concretization' of 'Grundnorm' or the basic norm-thus focusing the law to specific situations. This is a dynamic process. The Test of 'Grundnorm' - 'Minimum Effectiveness'; Jurist not Concerned with the Nature and Origin of 'Grundnorm' : In every legal system there is always a 'Grund norm' although its forms are different in different legal systems. For example, in Britain the 'Grund norm' is Crown in Parliament' and in U..A. it is the 'Constitution'. The 'Grundnorm' can be recognised by the minimum effectiveness which it possesses. But any discussion about the nature and origin of the 'Grund norm' is not within the province of the 'Pure Theory of Law'. These are pre-legal questions in relations between 'Grundnorm' and all other inferior norms and not to enter into other questions as goodness or badness of 'Grundnorm'. Any discussion of such questions may involve the study of things and subjects which may adulterate the theory. But before applying Kelsen's theory to any legal system one must discover the 'Grundnorm'. Essential Foundations of Kelsen's Theory: To summarise, the essential foundations of Kelsen's system have been enumerated as follows- 1) The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity. 2) Legal theory is science, not volition. It is knowledge of what the law is, not of what the law ought to 29

7 trictly for Internal Circulation - KCL be. 3) Legal theory as a theory of norms is nor concerned with the effectiveness of legal norms. 4) A theory of law is formal, a theory of way of ordering, changing contents in a specific way. 5) The relation of legal theory to a particular system of positive law is that of possible to actual law. Criticism Against Kelsen's Theory Criticism Against Kelsen's Theory His Grundnorm' Vague and Confusing: The first point in Kelsen's theory which is greatly criticized is his conception of 'Grundnorm'. Though Kelsen has given its characteristic as possessing 'minimum effectiveness', it is very vague and confusing and it is difficult to trace it out in every legal system. But its discovery is a condition precedent for a successful application of Kelsen's theory to a legal system. Kelsen seems to have given his thesis on the basis of the written constitutions as Austin created his 'overeign' on the basis of the English system of government but even in written constitutions, 'Grund norm' is made up of many elements and anyone of these elements alone cannot have the title of 'Grundnorm'. Another criticism against the conception of 'Grundnorm' is from the point of view of the Historical school. It says that the origin of law is in customs and 'Volkgeist' and not in any other source, such as 'Grund norm'. The Purity of Norms cannot be Maintained: Kelsen is criticized, again, for his theory about the purity of norms. The purity of norms cannot be maintained due to two reasons. First, for a proper analysis of legal norms one will have to go to the 'Grundnorm'. In tracing the 'Grundnorm' by applying the test laid down by Kelsen himself-" minimum effectiveness", one will have to look into political and social facts. It will cause adulteration in the 'Pure Theory' because the impurity of 'Grundnorm' would infect the legal norms also which emerge out of it. Prof. tone observes: The social effects and questions of justice excluded, though from all the side-doors and backdoors of his pyramid of norms, the front-door is wide open to both'. econd, the task of deriving legal norm from'. No Practical ignificance: ociological jurists criticize it on the ground that it lacks practical significance. Prof. Laski says" 'Granted its postulates, I believe the pure theory to be unanswerable but I believe also that its substance is an exercise in logic and not in life.' ome see Kelsen as 'beating his luminous wings in vain within his ivory tower." Criticism not Well Directed: o far as the criticism against Kelsen's view about the purity of legal norms is concerned, it has some truth but in no way it impairs the initial thesis of the theory, namely, the hierarchy of norms. The factors on which the 'Grundnorm' is founded are pre-legal and hence they are outside the study of law. Even if we recognize the fact that the purity of legal norms cannot be maintained, the theory is not materially affected. Kelsen develops his theory from the philosophical premises of Kant and aims at establishing a universal theory of law. 'Natural Law' Ignored: ome criticize Kelsen's theory for its excluding 'natural law' from law. 'Natural law' considerably affects legal concepts and operates in the society, and is incorporated in positive law also. But, as said earlier, Kelsen presents a very scientific analysis of legal order, therefore, he could not take these extra legal norms into consideration. It does not mean that the he denies the existence of 'natural law'. If 'natural law' is incorporated in the positive law, it stands in the hierarchy of norms and is validly within the field of study. International Law-Weakest Point of the Theory: A more potent and substantial criticism is put forward 30

8 trictly for Internal Circulation - KCL against Kelsen's view of International law. Kelsen in his attempt to apply his theory on International law runs into a number of inconsistencies and artificiality of the approach is exposed. His comparison of International law with primitive law is artificiality and no juristic conclusions can be based upon it. He attempts to prove the existence of 'Grund norm' in International law also. He says that one legal system, in practice, recognizes the equality of other legal systems and it implies the recognition of a 'Grundnorm'. This equality is not possible without the 'Grundnorm'. He finds this 'Grundnorm' in the principle 'pacta sunt servanda'. On the question whether this 'Grundnorm' comes into existence on the formation of an association of states or states derive their validity and force from the 'Grundnorm'. Kelsen leaves both the possibilities open as it is not within the province of the 'Pure Theory' to investigate into it, but his line of approach seems to be favouring the latter view. If his zeal for establishing the primacy of International law, Kelsen goes on forwarding arguments, but on the point of 'Grund norm' his arguments explode and he is thrown on the horns of a dilemma. Prof. Jone remarks: "It is difficult to see what pure theory of law contributes to a system which it assumes to be law, but which it derives from a basic norm which it cannot find." econdly, Kelsen says that sanctions of International law are war and reprisal. The whole difficulty is that the International law does not fit in his 'Pure Theory' and it should be taken as a limitation of the theory. His arguments are based on 'Natural law' principles on which Prof. Lauterpacht observes that 'by a backdoor, as it were, crept into the cast iron logic of the system, the ghost of natural law'. In present times, a greater appreciation and understanding of Kelsen's theory has appeared. The great jurists like tone and Friedmann have very stoutly defended Kelsen's theory. The 'Pure Theory' is mainly concerned with a theoretical analysis of legal norms within a state and there it is very easily applicable. The application of the theory on International law (as the founder of the theory claims it to be of universal application) exposes the limitations of the theory or a causual leakage in it. In his effort to establish the primacy of International law, Kelsen applies the theory on it also, but it gives only ridiculous results. He represents a picture of International law as what it ought to be and not what it is. Though his theory is called pure, once it is associated with Extra Legal Consideration with the Grundnormhis theory ceases to be pure. His conception of Grundnorm is vague and confusing. It is difficult to trace it out in every legal system. No criterion has been given by him through which the minimum effectiveness of Grundnorm is to be measured. His Grundnorm seems to be little more than Austin's in a new guise. Kelsen's Contribution His Analysis of Legal Concepts; Positivist; His Logic and Precision cientific; Practical Value: Kelsen has made an original, striking and greatly valuable contribution to jurisprudence. He has considerably influenced the modern legal thought. His views regarding right, personality, state, and public and private law have received great support from various quarters and they require a very close study. The theory very forcefully suggests a revaluation of these concepts. Pruning away the abstract notions which covered the law, Kelsen took positive law as the subject matter of his study. With his scientific precision and mighty and unparallel logical subtlety he analysed the legal order in a most convincing way. uch criticism as "in the anxiety to keep his theory 'pure', he raises it to such a remote and inaccessible altitude that it has difficulty in drawing the breath of life" which means that theory gives no practical guidance is out of point. Kelsen himself never intended his theory for this purpose and it is not at all concerned with this end. This criticism merely points out a limitation of the theory which the founder himself would acknowledge. The practical value of the theory for a lawyer is that at least it clears mind and after that he is free to make a 31

9 trictly for Internal Circulation - KCL choice of an ideology. H.L.A. HART Reformulation of Analytical Positivism His Theory Bridges Age-Old Gap: A very comprehensive reformulation of analytical positivism has been done by Hart in his 'Concept of law'. His theory, on the one hand, builds on and, on the other hand, makes important modifications in the theories of Austen and Kelsen. "Two aspects of Hart's analysis of the concept of law are of special importance: in the first place, he bridges the age-old conflict between the theories of law emphasizing recognition and social obedience as the essential characteristic of a legal norm, and secondly those that see the distinctive characteristic of law in the correlated elements of authority, command, and sanction." The former approach is that of avigny, Ehrlich and others. The latter is that of Austin, Kelsen and their followers. Primary Rules of Obligation and econdary Rules of Recognition: ocial acceptance predominates in primitive societies and organized authority predominates in more developed societies. This distinction is expressed in terms of contrast between primary rules of obligation and secondary rules of recognition. Primary Rules Give Way to econdary Rules: Both historically and logically, the primary rules of obligation generally give way to secondary rules, in which the forms of recognition, change and adjudication are systematized, usually through the centralization of authority, the articulation of definite procedures for the making application and execution of law, and a system of official sanction. Conditions Necessary for the Existence of a Legal ystem: Hart says that for the existence of a legal system, two minimum conditions are necessary- There are therefore two necessary minimum conditions- "There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system's ultimate criteria a validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy: they may obey each 'for his part only' and from any motive whatever; though in a healthy society they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trance this obligation to a more general obligation to respect the constitution. The second condition must also be satisfied by the officials of the system. They must regard these as common standards of official behaviour and appraise critically their own and each others' deviations and lapses. Of course it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only obey". International Law: According to Hart, in the contemporary world international law is the conspicuous illustration of a system of primary rules. "Again once we emancipate ourselves from the assumption that international law must contain a basic rule, the question to be faced is one of fact. What is the actual character of the rules as they function in relations between states? Different interpretations of the phenomena to be observed are of course possible; but it is submitted that there is no basic rule providing general criteria of validity for the rules of international law, and 32

10 trictly for Internal Circulation - KCL that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties. It is true that, on many important matters, the relations between states are regulated by multilateral treaties, and it is sometimes argued that these may bind states that are not parties. If this were generally recognized, such treaties would in fact be legislative enactments and international law would have distinct criteria of validity for its rules. This approach to international law is possible by detaching the concept of law from the punitive sanction regarded as essential characteristic of the legal norms as asserted by Austin and Kelsen. Hart's Contribution: Hart is one of the great jurists of our time. He makes considerable improvement on analytical positivism. His treatment of the subject is very comprehensive and constructive. In him we find a subtle analysis of concept of law. He presents a clarification of the general framework of legal thought. His approach though not much original, is important for its emphasis on the socially constructive function of law. The demotion of he punitive sanction has great importance for contemporary international law. He has greatly influenced the legal thought in modern times. The chief supporters of this school are- avigny, Cartar, Puchta, Henary Maine and G.C. Lee. In this school the study of mutual relations of state and law is made in historical perspective. According to the view of Historical chool law is found, not made. Law is based on customs and usages. One of the main exponents of this school is avigny ( ). German jurist Fredrich Karl Von avigny is known as the founder of Historical chool of Jurisprudence. He was a teacher in the University of Berlin. His study and scholarship of Roman law was profound. His work- (1) The Law of Possession, (2) The History of Roman Law in Middle Ages (in 6 volumes), and (3) The ystem of Modern Roman Law-testify his genius. He attacked the idea of codification in Germany as he knew the defects of the contemporary codes. According to him, code was not a suitable instrument for the development of German law at that time. Law is a product of the people's life as a manifestation of its spirit. The main propositions of his theory of law are as under- ource of Law is Volksgeist: avingny was of the opinion that law is a product of the people's life- it is a manifestation of its spirit. Law has its source in the general consciousness (Volksgeist) of the people. According to avigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion than solve the problems because law is not an "artificial lifeless mechanical device." Thus, the origin of law lies in the popular sprit of the people which avigny termed as Volksgeist. Law Develops Like Language and has a National Character: avigny remarked that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs, and convictions. He pointed out that "law grows with the growth of the society and gains its strength from the society itself and finally it dies away as the nation loses its nationality." Law, language, customs and government have no separate existence from the people who follow them. Common conviction of the people makes all these as a single whole. The central theme of avigny's historical jurisprudence may be summarized as under- 33

11 trictly for Internal Circulation - KCL "The organic evolution of Law with the life and character of the people develops with the ages, and in this it resembles language. As in the latter, as in Law, there can be no instant of rest, there is always movement, and development of Law is governed by the same power of internal necessity as simple phenomena. Law grows with a nation, increases with it, and dies at its dissolution and is a characteristic of it." Early Development of Law is pontaneous Later on it is Developed by Jurists: About the development of law, avigny says that in the earlier stages law develops spontaneously according to the principle of internal necessity. After the society has reached a certain stage of civilization, the different sides of national activities, hitherto developing as a whole, divide in different branches and are taken up by specialists as jurists, linguists and scientists. In the hands of specialists, these subjects, become richer in ideas, more complete and technical. Law, like other subjects now assumes a double existence- "on the one side a general national life, on the other the distinct science, of jurists. The relation of law to the general life of the people might be called its political elements, its connection with the juristic science its technical element. The correlation of these two elements varies with the elements of life of the people but both participate more or less in the development of law." 1) Law is a matter of unconscious and organic growth. Therefore, law is found and not made. 2) Law is not universal in its nature. Like language, it varies with people and age. 3) Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness. 4) As laws grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and, therefore, the lawyer or the jurist is more important than the legislator. Criticism of avigny's Theory: avigny's thesis has been criticized on a number of grounds- 1) Inconsistency in the Theory: He emphasized the national character of law but at the same time he recommended a method by which the Roman law could be adapted to modern conditions and advocated for the acceptance of Roman law as the law of Germany. 2) 'Volksgeist' not the Exclusive ource of Law: avigny's view that popular consciousness is the source of all law is not true. ometimes, an alien legal system is successfully transplanted in another country. ometimes, a single personality greatly influences a legal system, who, in no way, can be said to be a representative of popular consciousness. There are many technical legal rules which never existed in nor have any connection with popular consciousness. 3) Customs not Always Based on Popular Consciousness: avigny's view that customs are based on the popular consciousness of community as a whole is also not perfectly sound. Many customs originated only for the convenience of a powerful minority, as slavery. Many customs are adopted due to imitation and not on the ground of their righteousness or any conviction of the community. ometimes, customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community. 4) He Ignored other Factors that Influence Law: Another criticism against avigny is that he was "so 34

12 trictly for Internal Circulation - KCL occupied with the source of the law that he almost forgot the stream". He overlooked the forces and factors which influence life. Many rules, in modern time, are the result of a conscious effort. For example, the law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society. 5) Juristic Pessimism: According to Pound, avigny encouraged 'juristic pessimism.' According to his theory, legislation must accord with popular consciousness. uch a view will not find favour in modern times. No legal system would like to make compromise with abuses only because people are accustomed to it. It is rightly said that avigny's theory tended to hang traditions like fetters upon the hands of reformative enterprise. It discouraged creative activity and legal reform. His statement was simply to watch the unfolding of laws from popular consciousness with folded hands. avigny's Contribution His Theory, a Reaction Against Natural Law Theories: Historical Development of Law: His theory came as a powerful reaction against 18th century 'rationalism and principles of natural law', the advocates of which tried of establish a legal theory of universal application without any consideration of time and place. The great truth that the theory of Volksgeist contains is that a nation's legal system is greatly influenced by the culture and character of the people. avigny was mainly occupied with how law becomes and whether it tends, or what the conscious effort can make it to tend, and his thesis in this respect still substantially holds good. Influence of avigny: The theory of historical school, later on, influenced many jurists. It was after avigny that the value of the historical method was fully understood. Apart from his followers in his own country and in the Continent, his method was followed in England by Maine, Vinogradoff, Lord Bryce, and many others who made studies of various legal systems on historical lines and purged off many of the exaggerations of avigny's theory and traced the course of evolution of law in various societies. Pollock, Maitland, Holdsworth and Holmes in their works pointed out that the course of development of Common Law was determined by social and political conditions of particular time. Maine ( ): Maine made very valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. He started his career as Regius Professor of Civil Law in the University of Cambridge at an early age of twenty-five. He was Law Member in the Council of the Governor General of India between 1861 and This provided him an opportunity for the study of Indian Legal ystem. From 1869 to 1877 he occupied the chair of Historical and Comparative Jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the Master of Trinity Hall Cambridge. 'Ancient Law,' 'Village Communities', 'Early History of Institutions, 'Dissertation of Early Law and Customs', are the important contributions made by him to legal thought and legal philosophy. tages of Development of Law 1) Law made by the ruler under divine inspiration: In the beginning law was made by the commands of the ruler believed to be acting under the divine inspiration, as the inspiration by Themistes in the Homeric poems. 2) Customary Law: In the second stage the commands crystallize into customary law. 35

13 trictly for Internal Circulation - KCL 3) Knowledge of Law in the Hands of Priests: The knowledge and administration of customs goes into the hands of a minority, usually of a religious nature, due to the weakening of the power of original law-makers. This is the third stage. tatic and Progressive ocieties Further Development by Legal Fiction, Equity and Legislation: The societies which do not progress beyond the fourth stage which closes the era of spontaneous legal development are static societies (as Maine calls them). The societies which go on developing their law by new methods are called progressive. Progressive societies develop their laws by three methods: legal fiction, equity and legislation. Legal fictions change the law according to the changing needs of the society without making any change in the letter of the law. There are innumerable examples of it in English and Roman law. Equity consists of those principles which are considered to be invested with a higher sacredness than those of the positive law. It is used to modify the rigor of law. Legislation comes in the last which is most direct and systematic method of law making. tatus Disintegrated: As to the legal conditions prevailing at the end of general course of evolution, i.e., of static societies, Maine calls them 'status.' The rights and liabilities of a member of the community depend on his belonging to a particular group in the community. Maine's Thesis True in his Time: Maine was perfectly right when he propounded this thesis. Apart from the instances from ancient Roman law, during his own time he saw the emancipation of individual from statutes in England and in the Continent. In England, the position of married women improved. Manya civic disabilities on the ground of religion were removed by statutes. More freedom was given to servants to make contracts. Theory no Longer Holds Good: Individual freedom of contract was curtailed. But then there came a counter-move the signs of which were apparent in the time of Maine himself. It was realized that the idea of freedom of contract between a powerful capitalist and a starving workman was ridiculous and hollow. The organizations to protect the workmen came into existence. The employers too formed their associations. Now, in place of individual freedom of contract there came a group bargaining. Changes in the Concept and Functions of the tate: Now, there have been great changes in the concept and functions of the tate which have caused a growing interference into the activities of the individual by the tate. Even the contracts, which an individual enters into in every day life, have been standardized, as contract for water, or electricity supply, or contract for a carriage with a railway company. Individuals cannot change any of the terms of these contracts. Parties enter into these contracts as members of social class and not as individuals. In modern times, contracts between government departments and private firms have become important which also are standard contracts and the terms are fixed before hand. No Place for the Theory in Totalitarian tates Maine himself Qualified his Theory: In totalitarian tates there has been a strong shift to the status again. In these countries no contract is allowed which is in any way not in consonance with the tate plan, or, is otherwise harmful to the society. From these observations and examples one may gather that the societies have not remained progressive (according to Maine's thesis), but have become retrogressive. But Maine 36

14 trictly for Internal Circulation - KCL himself qualified his statement by the use of the word 'hitherto'. His theory was true during his time, and it was rather an echo of the individual's development and the formation of a capitalist class which demanded freedom of contract and labour. Another limitation of Maine's theory which he himself mentioned is that it was not meant 'to apply to personal conditions imposed otherwise than by natural incapacity. Contribution of Maine Maine Improved Upon the Theory of Historical chool: In Maine we find a very balanced view of history. avigny explained the relation between community and the law but Maine went further and pointed out the link between the developments of both and purged out many of the exaggerations which avigny had made. Most of the historical jurists of the Continent confined their studies only to Roman law but Maine studied the legal systems of various communities and by their analysis laid down a comprehensive theory of the development of law. On the one hand, differing from avigny, Maine recognized legislation as a very potent source of law, and on the other hand, he avoided the excesses of philosophical school of Germany. He inspired later jurists. Maine's theory preaches a belief in progress and it contained the germs of sociological approach. Jurists like Maitland, Vinogradoff and Bryce were inspired by Maine and they applied his historical and comparative method to the study of law. NATURAL LAW CHOOL The natural law being co-existent with mankind and emanating from God Himself, is superior to all other laws. It is binding over all the countries at all the times and no man-made law will be valid if it is contrary to the law of nature. Dr. Freedmann has stated that the history of natural law is a tale of the search of mankind for absolute justice and its failure. Therefore, with the changes in social and political conditions, the notions about natural law have also been changing. The natural law philosophy dominated in Greece during 5th B.C. when it was believed that it is something external to man. ophists called it as an order of things which embodies reason. ocrates, Plato and Aristotle also accepted that postulates of reason have a universal force and men and endowed with reason irrespective of race or nationality. In the ancient societies, natural law was believed to have a divine origin. During the medieval period it had a religious and super natural basis but in modern times it has a strong political and legal mooring. It has found expression in modern legal systems in the form of socio-economic justice. The natural law theory acts as a catalyst to social transformation thus saving the society from stagnation. Definition of Natural Law: There is no unanimity about the definition and exact meaning of natural law and the term 'natural law theory' has been interpreted differently at different times depending on the needs of the developing legal thought. From the jurisprudential point of view, natural law means those rules and principles which are supposed to have originated from some supreme source other than any political or wordly authority. ome thinkers believe that these rules have a divine origin, some find their source in nature while others hold that they are the product of reason. 37

15 trictly for Internal Circulation - KCL The natural law denies the possibility of any rigid separation of the 'is' and ought' aspect of law and belives that such a separation is unnecessarily causing confusion in the field of law. The supporters of naturalla theory argue that the notions of 'justice', 'right' or 'reason' have been drawn from the nature of man and the law of nature and, therefore, this aspect cannot be completely eliminated from the purview of law. 1) Natural law is eternal and unalterable. 2) Natural law is not made by man, it is only discovered by him. 3) Natural law is not enforced by any external agency. 4) natural law is not promulgated by legislation, it is an outcome of preachings of philosophers, Prophets, saints etc, and thus in a sense, it is a higher form of law to which all forms of manmade laws should pay due obedience. 5) Natural law has no formal written code. Also there is no precise penalty for its violation nor any specific reward for abiding by its rules. 6) Natural law has an eternal lasting value which is immutable. The Evolution and Development of Natural Law Theory: From the point of view of convenience, the evolution and development of natural law theory may be studied under the following broad heads: Ancient Period: Heraclitus was the first Greek philosopher who pointed at the there main characteristic features of law of nature, namely, (i) destiny (ii) order and (iii) reason. He stated that nature is not a scattered heap of things but there is a definite relation between the things and a definite order and rhythm of events. According to him' reason' is one of the essential elements of natural law. ocrates ( B.C.): The name of ocrates argued that like natural physical law, there is a natural moral law. It is because of the 'human insight' that a man has the capacity to distinguish between good and bad and he is able to appreciate the moral values. thus according to ocrates, 'virtue is knowledge' and 'whatever is not virtuous is sin'. To him, justice may be of two kinds, namely, (i) natural justice; and (ii) legal justice. The rules of natural justice are uniformly applicable to all the places but the notion of legal justice may differ from place to place depending on the existing statutory law and social conditions of the place. It is a variable content which changes with time and place. Thus natural law is a specie of law which is universal and immutable and uniformally applicable to all the persons at all the places and times. Plato ( B.C.): 'ocrates' disciple, Plato carried further the natural law philosophy through his concept of ideal tate which he termed as Republic. In his Republic, Plato emphasised the need for perfect division of labour and held "each man ought to do his work to which he is called upon by his capacities. Aristotle ( B.C.): Aristotle came out with a more logical interpretation of the natural law theory According to him, a man is a part of nature in two ways. Firstly, he is a creation of God, and secondly, he possesses insight and reason to which enable him to articulate his actions. He defined natural law as 'reason unaffected by desires. He said, "Positive law should try to incorporate within it, the fine principles of natural law but it should be 38