LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY

Subject: JURISPRUDENCE-1 (LEGAL THEORY)
Class: LL.B. I-SEMESTER
Jurisprudence and Legal Theory
Definition, nature, importance and Scope of “jurisprudence”
- Dhananjay Kr. Mishra1
Meaning:-
“Jurisprudence” is mainly the subject matter of the legal world. Etymologically it derives
from the Latin word “jurisprudentia” juris + prudential = juris - law, prudential –skill or
science therefore it is a skill or science of law.
Introduction:
The study of jurisprudence started with the Romans. The definition given by the Roman
jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has

its own notion of the subject matter and the proper limits of jurisprudence depend upon his
ideology and the nature of society. The word jurisprudence is used in different languages
with different senses. In French it refers “case law”. These have been a shift during the last
one century and jurisprudence today is envisaged in more broad sense than it had understood
in Australia.
Definition of Jurisprudence:-
It is definition to give a universal and uniform definition of jurisprudence. Following
definitions have been given by the leading jurists.

Austin’s Definition:-
Austin defines jurisprudence as “the philosophy of positive law” positive law laid down by a
political superior for controlling the conduct of those subjects to his authority.
Divisions Of Jurisprudence By Austin:
Austin divided the jurisprudence into following category:
(i) General Jurisprudence
(ii) Particular Jurisprudence
(i) General Jurisprudence:
General Jurisprudence includes such subject or ends of law as are common to all systems. It
generally accepted by the people.
(ii) Particular Jurisprudence:
Particular Jurisprudence is the science of any actual system of law or any portion of it. It’s a
specific and particular.
Criticism On Austin’s Definition:
Salmond’s criticism:
The error in Austin’s idea of general jurisprudence lies in the fact that he assumes that unless
a legal principal is common to many legal systems, it cannot be dealt within general
jurisprudence. There may be many schools of jurisprudence but not different kinds of it.
Holland’s Criticism
Holland points out that it is only the material which is particular and not the science itself.
Holland’s Definition of Jurisprudence:-
Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”.
Analysis of Holland’s Definition:-
According to Holland, Jurisprudence is not a material science. There are three essential
requisites of this definition.
1) Formal
2) Science and
3) Positive Law
1). Formal:-It is derived from the word “form” which means “outer -structure. Therefore it is
an outer-structure of material thing of positive law. All the material things are within this

formal structure. If you look to a structure, then jurisprudence is the formal science of
positive law. Such as many material things, it may be principles which are material element
in the form of law. Jurisprudence is the study of those materials of outer-structure. Material
factor gives the outer-structure of law. For instances :- 1) If you look through the eye of
environmentalist then you look the materials thing like jungle or forest.
2) Doctor is not interested in your outer-structure that how beautiful you are looking? or how
you are looking viz. handsome or slim? Rather, he interested to check your nerves and so on.
He is interested in the material things. This means here you should look the outer-structure of
materials. So that materials which material factor in the science of this outer-structure of law
is jurisprudence.
This means concern with social factors which are inherited in law. In law what is the material
logic or material things in which the outer-structure is designed. If material factor is narrow
or large then outer-structure become narrow or broad respectively therefore it depends upon
the nature of material or nature or characteristic of law. This means according to Holland
there are certain material things which are formal included in the field of law. That material
thing which is formal of the outer-structure, these are the point of commonality or common
element is the part of the formal science of positive law.
Common material which is available in all laws in the world that is the general in scope
therefore he follows the general jurisprudence. Holland follows the Austin’s definition but he
adds the term “formal” means “it is concerned the form only and not the essence”. He says
that jurisprudence is only a formal science.
2). Science:- Science is the special knowledge, it has three main methods involve in the
science as following below :-
1) Identification 2) Classification 3) Systematisation
3) Positive Law:- According to Holland “positive law” is that law which is given by
sovereign or political authority and it regulates the relationship of individuals inter se.
Regulation with regard to contract, or tort, or Administration, or labour law. This positive law
indicates the relationship of one individual with another or it regulates also the relationship of
state. The second definition of positive law i.e. it is the existing law which is available in the
concrete and written form or visible form.
Third definition of positive law i.e. this positive law is distinguished from hypothetical, ideal
and abstract law. Positive law should not be based upon imagination.

Criticism:-
By Gray:-
The real relation of jurisprudence to law is treated but how law is treated
- By Dr. Jenks:
He observed that jurist can only recognize a law by its form, for it is the form which causes
the manifold matter of the phenomena to be perceived but having got the form as it were, on
the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with
means rather than with ends, though some of its means are ends in themselves.
Salmond’s Definition:
Salmond defines Jurisprudence as “Jurisprudence is the science of the first principle of civil
law”.
From the entire domain of the positive law Salmond selects civil law only. Therefore he
belongs to particular stream of jurisprudence.
There are three essential requisites lies in the definition given by Salmond as following below
:-
1) Science (Identification, systematisation and classification)
2) First Principle
3) Civil Law
2) First Principle:- It is a hierarchical order like first, second and third. In this numerical
order it is a number one principle not a number two or third system .Therefore once he uses
first principle means it is the most important and all others are less important. So
jurisprudence is the first or fundamental or basic or cardinal principle among all other
principles. Salmond uses it as a matter of degree of importance.
3) Civil Law :- According to Salmond “civil law” is the part of positive law or integral part
of positive law. Civil law is that law which is applied by the court of law for the purpose of
Administration of justice in the society. The civil law must be included three things as
following below:-
1) Statutory Law
2) Customary Law 3)
Judicial Legislation
1). Statutory Law:- The enacted legislation available in the form of the statute and enacted
law which is available in the written form.
2) Customary Law:- This law has been continuing in our society but it is not available in the

written form. Although it is not available in the concrete form but it is applied by the court of
Law because it is an integral part of our society. why customary laws are included in the civil
law according to Salmond because it is applied by the court of law for the administration of
justice.
3) Judicial Legislation:- the law which is made by court or creating by court of law is
known as judicial legislation. It is also the part of the positive law because the court of law
applied it. Therefore the control point of civil law according to Salmond is application of law
in the society or application of law by the court for the administration of justice
“Jurisprudence is the science of the first principal of the Civil Law.”
In this sense, he divides the subject into 3 branches:
(a) Analytical Jurisprudence
(b) Historical Jurisprudence
(c) Ethical Jurisprudence
a) Analytical Jurisprudence:- The main purpose of analytical jurisprudence is the legal
exposition. It exposes the identity and the content of law at present or past. Here legal
exposition is the methodology. That identify the law in the present time of it is the use
of public matter or not.
b) Historical Jurisprudence: - The main purpose of historical Jurisprudence is the
exposition of legal history this means it exposes the historical development of law
within the society, It is equally important because if we are in the 21 century but there
is historical development of law. It has past experience, or number of difficulties.
How law faced struggle and how it came into picture at this stage. it is also peculiar to
note for the administration of justice. According to Salmond it is also the subject
matter of historical jurisprudence.
c) Ethical Jurisprudence
Salmond uses the term Jurisprudence is two senses.
(i) Generic sense:
Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence
is of 3 kinds.
(a) Expository or Systematic Jurisprudence:
It deals with the contents of an actual legal system as existing law at any time, whether in
past or in presents.
(b) Legal History:

It deals with the history of development of law.
(c) Science of legislation:
The purpose of the science of legislation is to set forth law as it be. It deals with the ideal of
the legal system and the purpose for which it exists.
(ii) Specific Sense:
Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is
also called theoretical or general jurisprudence. It is also defined as
A. Criticism:
It is submitted that Salmond had failed to give an accurate and scientific and also the
divisions made by him of jurisprudence into general and particular raises a great deal of
criticism as the Holland observes that these expressions should be discarded, as the science
should be treated as incapable of being divided into these two branches.
IV. Definition Of Jurisprudence At Present Juncture:
The term jurisprudence may tentatively be described as any thought or writing about law and
its relation to other disciplines such as philosophy, economics, anthropology and money.
Scope of Jurisprudence:-
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed
under the following three heads.
I. Early Period:
In the early period, jurisprudence has been so defined as to cover moral and religious percept
also and that has created confusion.
II. Austinian Period:-
It was the Austin, who distinguished law form morality and theology and restricted the term
to the body of rules set and enforced by the sovereign or supreme law-making authority
within the realm. So the scope of jurisprudence was limited to the study of the concept of
positive law only.
III. Modern Period:
At present, there is a tendency to widen the scope of jurisprudence. The present view is that
the limited. It includes all concepts human order and human conduct is state and society.
View of P.B. Mukherji :-
Jurisprudence includes political social, economic and cultural ideas. It covers the study of
man in relation to state and society.
View of Lord Redcliffe:-
Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a

philosophy of life.
Importance and Utility of Jurisprudence:-
Jurisprudence in basically a theoretical subject but it has a practical and educational value
also. It is enumerated as under.
(i) Remove the complexities of law:-
One of the tasks of jurisprudence is to construct concepts and make law more manageable
and rational.
(ii) Answers the new problems:-
Jurisprudence can teach people to look around them and realize that answers to new legal
problems must be found by a consideration of the present social needs and not in the wisdom
of the past.
(iii) Grammar of Law:-
Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental
principles of law e.g., negligence, liability etc.
(iv) Training of Mind:-
Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
(v) Grasp on the subject:-
It helps is knowing and grasping the language, grammar, the basis of treatment and
assumption upon which subject rests.
(vi) Useful in Art of pleading and legislation:
It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the
both the creation of defining again and again certain expressions e.g., right, duty etc.
(vii) To Interpret law:
It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the
legislatures by providing the rules of interpretation.
(viii) To study foreign law.
It enables a lawyer to study foreign law because the fundamental principal is generally
common to all systems of law.
(ix) Importance under the light of different jurists:-
By Dr. M.J. Sethna:-
The value of jurisprudence lies in examining the consequences of law and its administration
on social welfare and suggesting changes for the betterment of the superstructure of laws.
According to Dais The study of jurisprudence is an opportunity for the lawyer to bring theory

and life into focus, for it concerns human thought in relation to social existence
Natural Law
Traditional Natural Law Theory
As Salmond has noted, the central idea of the traditional natural law theory is that ‘there are
objective moral principles, which depend upon the essential nature of the universe and which
can be discovered by human reason’.
The corollary to this understanding of natural law is les injusta non est lex, which means that
‘unjust law is no law’. This inference of the traditional version of natural law has been
severely diluted by later proponents such as Lon Fuller.
• The rules must be understandable;
• Rules must not be contradictory;
• Rules must not be impossible to obey;
• The rules should remain relatively constant through time; and
• There should be congruence between rules as announced and as applied Fuller is unclear
whether these eight principles of legality make a legal system an ‘all-or-nothing affair”. Is
adherence to these principles a question of degree? Adherence to the inner morality of law
would, nevertheless, create a prima facie obligation to obey the law. And, in the case of
unjust laws, the prima facie obligations may be overridden.
Ronald Dworkin’s theory can be best understood through an illustration of what he termed as
the ‘Original Problem’. This is based upon the case of Riggs v. Palmer, 115 NY 506, where a
person sought to bequeath the property of a person who he himself had killed. Denying the
benefit to him, the court used the principle of ‘no person should benefit from her own wrong’.
Dworkin suggests that the principle used in Riggs indicates that law is not merely a system of
rules. There are also ‘principles, policies and other sort of standards’ that govern the legal
system. According to Dworkin, the application of the Riggs principle was justified owing to
its content - the moral requirement of fairness.
Dworkin’s Interpretative Theory
Professor Lon Fuller, while truncating the expansionist claim of the traditional natural law
theory, introduced the idea that moral principles will continue to be of foremost consideration
in any genuine legal system. He spoke of an inner morality of law that ought to govern legal
systems. The eight principles that Lon Fuller emphasized are as follows:

• The rules must be general;
• The rules must be promulgated;
• Retroactive rulemaking and application must be minimized; It must be noted, however, that
Dworkin does not necessarily concede his points of view to be that dictated by the ‘natural
law theory’.
There is just one article where he has reluctantly suggested that ‘if the crude description of
natural law I just gave is correct, that any theory that makes the content of law sometimes
depend on the correct answer to some moral question is a natural theory, then I am guilty of
natural law’.2
What is Social Contract Theory? The concept of social contract theory is that in the
beginning man lived in the state of nature. They had no government and there was no law to
regulate them. There were hardships and oppression on the sections of the society. To
overcome from these hardships they entered into two agreements which are:- 1. Pactum
Unionis; and 2. Pactum Subjectionis. By the first pact of unionis, people sought protection of
their lives and property. As, a result of it a society was formed where people undertook to
respect each other and live in peace and harmony. By the second pact of subjectionis, people
united together and pledged to obey an authority and surrendered the whole or part of their
freedom and rights to an authority. The authority guaranteed everyone protection of life,
property and to a certain extent liberty. Thus, they must agree to establish society by
collectively and reciprocally renouncing the rights they had against one another in the State
of Nature and they must imbue some one person or assembly of persons with the authority
and power to enforce the initial contract. In other words, to ensure their escape from the State
of Nature, they must both agree to live together under common laws, and create an
enforcement mechanism for the social contract and the laws that constitute it. Thus, the
authority or the government or the sovereign or the state came into being because of the two
agreements. Analysis of the theory of Social Contract by Thomas Hobbes  Thomas Hobbes
theory of Social Contract appeared for the first time in Leviathan published in the year 1651
during the Civil War in Britain. Thomas Hobbes legal theory is based on Social contract.
According to him, prior to Social Contract, man lived in the State of Nature. Man’s life in the
State of NATURE was one of fear and selfishness. Man lived in chaotic condition of constant
2
(Ronald Dworkin, “‘Natural’ Law Revisited’, 34 University of Florida Law Review 165 (1982).

fear. Life in the State of Nature was solitary, poor, nasty, brutish, and short. Man has a
natural desire for security and order. In order to secure self protection and self-preservation,
and to avoid misery and pain, man entered into a contract. This idea of self-preservation and
self-protection are inherent in man’s nature and in order to achieve this, they voluntarily
surrendered all their rights and freedoms to some authority by this contract who must
command obedience. As a result of this contract, the mightiest authority is to protect and
preserve their lives and property. This led to the emergence of the institution of the ruler or
monarch, who shall be the absolute head. Subjects had no rights against the absolute authority
or the sovereign and he is to be obeyed in all situations however bad or unworthy he might
be. However, Hobbes placed moral obligations on the sovereign who shall be bound by
natural law. Hence, it can be deduced that, Hobbes was the supporter of absolutism. In the
opinion of Hobbes, law is dependent upon the sanction of the sovereign and the Government
without sword are but words and of no strength to secure a man at all. He therefore, reiterated
that civil law is the real law because it is commanded and enforced by the sovereign. Thus, he
upheld the principle of Might is always Right. Hobbes thus infers from his mechanistic
theory of human nature that humans are necessarily and exclusively self-interested. All men
pursue only what they perceive to be in their own individually considered best interests. They
respond mechanistically by being drawn to that which they desire and repelled by that to
which they are averse. In addition to being exclusively self-interested, Hobbes also argues
that human beings are reasonable. They have in them the rational capacity to pursue their
desires as efficiently and maximally as possible. From these premises of human nature,
Hobbes goes on to construct a provocative and compelling argument for which they ought to
be willing to submit themselves to political authority. He did this by imagining persons in a
situation prior to the establishment of society, the State of Nature. Hobbes impels subjects to
surrender all their rights and vest all liberties in the sovereign for preservation of peace, life
and prosperity of the subjects. It is in this way the natural law became a moral guide or
directive to the sovereign for preservation of the natural rights of the subjects. For Hobbes all
law is dependent upon the sanction of the sovereign. All real law is civil law, the law
commanded and enforced by the sovereign and is brought into the world for nothing else but
to limit the natural liberty of particular men, in such a manner, as they might not hurt but to
assist one another and join together against a common enemy. He advocated for an
established order. Hence, Individualism, materialism, utilitarianism and absolutions are inter-
woven in the theory of Hobbes. Analysis of the theory of Social Contract by John Locke 

John Locke theory of Social Contract is different than that of Hobbes. According to him, man
lived in the State of Nature, but his concept of the State of Nature is different as contemplated
by Hobbesian theory. Locke’s view about the state of nature is not as miserable as that of
Hobbes. It was reasonably good and enjoyable, but the property was not secure. He
considered State of Nature as a Golden Age. It was a state of peace, goodwill, mutual
assistance, and preservation. In that state of nature, men had all the rights which nature could
give them. Locke justifies this by saying that in the State of Nature, the natural condition of
mankind was a state of perfect and complete liberty to conduct one’s life as one best sees fit.
It was free from the interference of others. In that state of nature, all were equal and
independent. This does not mean, however, that it was a state of license. It was one not free to
do anything at all one pleases, or even anything that one judges to be in one’s interest. The
State of Nature, although a state wherein there was no civil authority or government to punish
people for transgressions against laws, was not a state without morality. The State of Nature
was pre-political, but it was not premoral. Persons are assumed to be equal to one another in
such a state, and therefore equally capable of discovering and being bound by the Law of
Nature. So, the State of Nature was a state of liberty, where persons are free to pursue their
own interests and plans, free from interference and, because of the Law of Nature and the
restrictions that it imposes upon persons, it is relatively peaceful. Property plays an essential
role in Locke’s argument for civil government and the contract that establishes it. According
to Locke, private property is created when a person mixes his labour with the raw materials
of nature. Given the implications of the Law of Nature, there are limits as to how much
property one can own: one is not allowed to take so more from nature than oneself can use,
thereby leaving others without enough for themselves, because nature is given to all of
mankind for its common subsistence. One cannot take more than his own fair share. Property
is the linchpin of Locke’s argument for the social contract and civil government because it is
the protection of their property, including their property in their own bodies, that men seek
when they decide to abandon the State of Nature. John Locke considered property in the
State of Nature as insecure because of three conditions; they are:-
1. Absence of established law;
2. Absence of impartial Judge; and
3. Absence of natural power to execute natural laws.
Thus, man in the State of Nature felt need to protect their property and for the purpose of
protection of their property, men entered into the Social Contract. Under the contract, man
did not surrender all their rights to one single individual, but they surrendered only the right

to preserve / maintain order and enforce the law of nature. The individual retained with them
the other rights, i.e., right to life, liberty and estate because these rights were considered
natural and inalienable rights of men. Having created a political society and government
through their consent, men then gained three things which they lacked in the State of Nature:
laws, judges to adjudicate laws, and the executive power necessary to enforce these laws.
Each man therefore gives over the power to protect himself and punish transgressors of the
Law of Nature to the government that he has created through the compact. According to
Locke, the purpose of the Government and law is to uphold and protect the natural rights of
men. So long as the Government fulfils this purpose, the laws given by it are valid and
binding but, when it ceases to fulfil it, then the laws would have no validity and the
Government can be thrown out of power. In Locke’s view, unlimited sovereignty is contrary
to natural law. Hence, John Locke advocated the principle of -a state of liberty; not of license.
Locke advocated a state for the general good of people. He pleaded for a constitutionally
limited government. Locke, in fact made life, liberty and property, his three cardinal rights,
which greatly dominated and influenced the Declaration of American Independence, 1776.
Analysis of the theory of Social Contract by Jean Jacques Rousseau  Jean Jacques Rousseau
was a French philosopher who gave a new interpretation to the theory of Social Contract in
his work “The Social Contract” and “ Emile”. According to him, social contract is not a
historical fact but a hypothetical construction of reason. Prior to the Social Contract, the life
in the State of Nature was happy and there was equality among men. As time passed,
however, humanity faced certain changes. As the overall population increased, the means by
which people could satisfy their needs had to change. People slowly began to live together in
small families, and then in small communities. Divisions of labour were introduced, both
within and between families, and discoveries and inventions made life easier, giving rise to
leisure time. Such leisure time inevitably led people to make comparisons between
themselves and others, resulting in public values, leading to shame and envy, pride and
contempt. Most importantly however, according to Rousseau, was the invention of private
property, which constituted the pivotal moment in humanitys evolution out of a simple, pure
state into one, characterized by greed, competition, vanity, inequality, and vice. For Rousseau
the invention of property constitutes humanity’s fall from grace out of the State of Nature.
For this purpose, they surrendered their rights not to a single individual but to the community
as a whole which Rousseau termed as general will. According to Rousseau, the original
freedom, happiness, equality and liberty which existed in primitive societies prior to the

social contract was lost in the modern civilisation. Through Social Contract, a new form of
social organisation- the state was formed to assure and guarantee rights, liberties freedom and
equality. The essence of the Rousseau’s theory of General Will is that State and Law were the
product of General Will of the people. State and the Laws are made by it and if the
government and laws do not conform to general will, they would be discarded. While the
individual parts with his natural rights, in return he gets civil liberties such as freedom of
speech, equality, assembly, etc. The General Will, therefore, for all purposes, was the will of
majority citizens to which blind obedience was to be given. The majority was accepted on the
belief that majority view is right than minority view. Each individual is not subject to any
other individual but to the general will and to obey this is to obey himself. His sovereignty is
infallible, indivisible, unrepresentable and illimitable.  Thus, Rousseau favoured people’s
sovereignty. His natural law theory is confined to the freedom and liberty of the individual.
For him, State, law, sovereignty, general will, etc. are interchangeable terms. Rousseau’s
theory inspired French and American revolutions and given impetus to nationalism. He based
his theory of social contract on the principle of Man is born free, but everywhere he is in
chains.
COMPARISION OF THE THEORY OF SOCIAL CONTRACT OF THOMAS HOBBES,
JOHN LOCKE AND JEAN JACQUES ROUSSEAU
1. Hobbes asserts that without subjection to a common power of their rights and freedoms,
men are necessarily at war. Locke and Rousseau, on the contrary, set forth the view that the
state exists to preserve and protect the natural rights of its citizens. When governments fail in
that task, citizens have the right and sometimes the duty to withdraw their support and even
to rebel. 2. Hobbes view was that whatever the state does is just. All of society is a direct
creation of the state, and a reflection of the will of the ruler. According to Locke, the only
important role of the state is to ensure that justice is seen to be done. While Rousseau view is
that the State must in all circumstance ensure freedom and liberty of individuals. 3. Hobbes
theory of Social Contract supports absolute sovereign without giving any value to
individuals, while Locke and Rousseau supports individual than the state or the government.
4. To Hobbes, the sovereign and the government are identical but Rousseau makes a
distinction between the two. He rules out a representative form of government. But, Locke
does not make any such distinction. 5. Rousseau’s view of sovereignty was a compromise
between the constitutionalism of Locke and absolutism of Hobbes.

CRITICAL APPREHENTION
1. Rousseau propounded that state, law and the government are interchangeable, but this in
present senerio is different. Even though government can be overthrown but not the state. A
state exists even there is no government.
2. Hobbes concept of absolutism is totally a vague concept in present scenario. Democracy is
the need and examples may be taken from Burma and other nations.
3. According to Hobbes, the sovereign should have absolute authority. This is against the rule
of law because absolute power in one authority brings arbitrariness.
4. Locke concept of State of nature is vague as any conflict with regard to property always
leads to havoc in any society. Hence, there cannot be a society in peace if they have been
conflict with regard to property.
5. Locke concept of laissez-faire is not of welfare oriented. Now in present scenario, every
state undertake steps to form a welfare state.
Analytical Positivism
Analytical Positivism rejects all strands of the natural law theory. Contrary to the natural law
theory, it believes that there is no necessary connection between law and morality. This
school focuses on an analysis of positive law, and, speaking very broadly, moves away from
the natural lawyers in that there is no credence accorded to the theory of a higher or superior
law from which positive law derives its authority, and to which it is subject.
Different versions of legal positivism have been championed by scholars such as John Austin,
H. L. A. Hart, and Joseph Raz.
John Austin
John Austin famously suggested an extremely simplistic conception: law is the command,
laid down by political sovereign, enforceable by sanction. 3
This simplistic version, as suggested by Salmond, has raised more questions than answers.
What is a command? How is it different from ‘request’? If X is asked by his boss, Y, to fetch
her a glass of water, is that a command or a request? Should there necessarily be a
3
(P. J. Fitzgerald (Ed.), Salmond on Jurisprudence, 12th edn., Universal Law Publishing Co. Pvt. Ltd., 1966, p.
25-26)

relationship of power between the ‘commander’ and the ‘commanded’? Austin suggested that
the general command lay down by God to human beings is divine law and creates moral
obligations. Similarly, general commands laid down by the political sovereign are positive
law, and impose legal obligations.
One has to fulfill. It does not make it mandatory for citizens to marry.
Austin defined ‘political sovereign’ as ‘any person, or body of persons, whom the bulk of a
political society habitually obeys, and who does not himself habitually obey some other
person or persons’. As per this definition, who would be sovereign in India? Under the
Constitution, the highest office of the President of India is also bound by the rule of law as
laid down in the Constitution. As we have seen earlier, owing to the doctrine of basic
structure as laid down in the Keshavananda Bharati case, there are limitations on the powers
of Parliament to amend the Constitution. ‘We, the people’ as a political sovereign is too
diffuse a body to locate sovereignty with certainty.
It must be noted; however, that defining law as a ‘command’ can be misleading. It may
perhaps be true for criminal laws, but what about the law of contract, or matrimonial laws?
The former does not mandate citizens to necessarily enter into obligations, and the latter do
not command citizens to get married.
Matrimonial laws simply suggest that if one wishes to get married, there are certain
formalities and procedural requirements that As per Austinian logic, the idea of a sanction is
built into the notion of law. Accordingly, people who act contrary to rules ought to be liable
for punishment.
Rejecting the assertion of natural law theory about the connection between law and morality,
Austin suggests that law is a concept based upon the notion of power and it need not be
looked at from the perspective of moral concepts. Indeed, in his famous repartee, Austin said,
“The existence of law is one thing; its merit or demerit is another. Whether it be or not is one
inquiry; whether it be or be not conformable to an assumed standard, is a different inquiry.”
H. L. A. Hart: Inclusive Legal Positivism
The strand of legal positivism developed by Professor H. L. A. Hart rejects John Austin on
the one hand, and the natural law theory on the other. Hart equated Austin’s ‘command of the
sovereign’ definition as akin to a gunman situation, where a person is faced with the
conundrum of ‘your money or your life’. Hart asserted that legal obligations are different
from gunman situations. He extensively analyzed the power of language as used in everyday

context and famously said that being obliged to do something is not the same as being
obligated to do it.
Since Hart merely asserts that there is ‘no necessary connection between law and morality’
and does not completely discount the possibility of interface between law and morality, his
theory is characterized as ‘Inclusive Legal Positivism’.
Hart defines law as a union of primary and second rules. For Hart, a rule exists when people
(a) Behave in a certain way (external condition); and (b) regard deviation from the expected
behavior as an adequate ground for criticism (internal condition). Primary rules are those that
impose obligations. The term ‘secondary’ in secondary rules does not mean unimportant. But
secondary rules cannot exist unless there are primary rules imposing obligations. Kinds of
secondary rules, according to Hart, are: (a) rule of recognition (rules that help identify those
rules that create obligations); (b) rule of change (how legally valid rules can be altered); and
(c) rule for responsibility (identification of specific individuals who would apply the rules).
There is an obligation to obey law qua law. Since norms are meant to replace the decision
making of the agents, if agents could question norms, the norm would lose its
authoritativeness. The source of law cannot be moral considerations but legal authority.
Significant proponents of Exclusive Legal Positivism include Joseph Raz and Andrei
Marmor. The position of Exclusive Legal Positivism is diametrically opposite to that of
Ronald Dworkin. Recall that in Dworkin’s ‘Original Problem’ of Riggs v. Palmer, he had
justified the principle ‘no person should benefit from her own wrong’ on the basis of content
- the moral requirement of fairness.
Exclusive legal positivism would suggest that Riggs is valid not because of the content, but
the source - a duly constituted court of law.
According to Exclusive Legal Positivism since the purpose of the norm is to replace debates
by the citizens, if citizens could re-initiate the debate about legal validity through the inchoate
idea of fairness, the norm itself will lose its authoritativeness. Hence, the legal validity of the
norm shall be located in source not content. The fundamental difference between exclusive
legal positivism and inclusive legal positivism is that while inclusive legal positivism
concedes that there can be instances where moral considerations may play a role in legal
validity, exclusive legal positivism completely discounts such a possibility.
Exclusive legal positivism asserts that the questions of ‘ought’ are qualitatively different from
questions of ‘is’. Hart, Devlin and Morality in the Modern Age While society faces such
twisted notions of ‘morality’, one must bear in mind the difference between ‘conventional
morality’ and ‘critical morality’. Jurisprudential theories such as the Natural Law Theory and

Legal Positivism, when they speak about a connection between law and morality, are by and
large concerned about critical morality that denotes rational standards that do not depend
upon the majority’s point of view in society.
There is, however, a debate in jurisprudence, known as the Hart-Devlin debate that concerns
itself with the role of conventional morality that reflects the moral views of the majority in
the society.
In order to appreciate the Hart-Devlin debate, one needs to understand J. S. Mill’s ‘harm
principle’. In his locus classicus titled ‘On Liberty’, Mill had formulated the dichotomy
between the public and private spheres. He said that the legitimate role for society exists in
the public domain. The basis on which society can interfere with the liberty of an individual
is that of the ‘harm principle’, that
is, prevention of harm to others. Taking a cue from Mill, perhaps, the Constitution, in Chapter
III on Fundamental Rights through Art.19(1)(a) denies the State the power to take away an
individual’s liberty such as freedom of speech and expression. To be sure, the Constitution
hastens to qualify the aforementioned freedom with the ‘reasonable restrictions’ of ‘public
order, decency and morality’ in A.19(2). The presence of Fundamental Rights in the
Constitution may be thought as supportive of Hart’s claim that there are liberties of this sort
which override ordinary considerations of utility. On the other hand, Devlin argued that a
society has a right of self-defence against any harm that may ensue to the moral code that
binds it – and the Constitutional limitation of ‘reasonable restrictions’ could be considered an
example of the validity of this proposition.
Devlin relied upon marriage laws to prove his point - while some societies tolerate polygamy;
others emphasize monogamy owing to their differences in the moral code that binds them
together. It wouldn’t an appropriate response on the majority’s part be to lead by example and
resolve to follow the model code in letter and spirit rather than mounting attack on others?
Furthermore, the inarticulate major premise of Devlin’s argument is that society’s moral code
is stuck in a time warp. For, if the moral code were immutable, India would still witness sati
and relish child marriages. Though law banned sati, society evidently survived.
Indeed, Professor H. L. A. Hart, one of the greatest jurists whose theory on legal positivism
we have dealt with above, mounted a criticism of Devlin suggesting that societies are known
for the change that they undergo. Undue insistence on preservation of moral fibre risks
stagnation.4
4
(Andrew Altman, Arguing About Law, 2nd edn., Wadsworth Publishing Company, Belmont, 2001, pp. 161-

Hart as well as Devlin debated within the framework of a legal response. While arguing for
society’s right to defend its public order and decency, Devlin was clear that if society wishes
to take action in order to protect its morality, the appropriate vehicle is law.
Philosophically speaking, there are two kinds of morality that one needs to be concerned
about: conventional morality and critical morality. While conventional morality reflects the
moral views of the majority of the population, critical morality denotes what in fact is right
irrespective of the opinion held by the majority of society. Merely because the agency of
interpretation lies with human beings, it does not necessarily guarantee an accurate
understanding of critical morality.
It must be noted, however, that Devlin glossed over the inherent contradiction in his
argument. Is society’s moral code so fragile that a few deviants could be in a position to
endanger it at any given point of time? If a minority dissent from the moral code that
supposedly binds the entire society together,
The Historical School
Friedrich Karl Von Savigny (1779-1861) and Henry Maine (1822-1888) are considered as
belonging to the Historical School. Law, for
Savigny (1779-1861), was a reflection of the spirit of the people who evolved it. As such,
Savigny argued, it had its source in the Volksgeist, or common consciousness of people. It
could only be understood, therefore, by looking at the historical roots and development of the
state of the common consciousness. As such, Savigny argued, it had its source in the
Volksgeist, or common consciousness of people. It could only be understood, therefore, by
looking at the historical roots and development of the state of the common consciousness.
This was a move away from the thought that law was a product of man’s free will.
Legislation, which involves the conscious ‘creation’ of law, could only be undertaken by
trying to understanding the history of the nation or society for whom the law was being made;
but a legislator could therefore only be considered the mouthpiece of common consciousness.
Law, for Savigny Law was a reflection of the spirit of the people who evolved it.
Henry Maine (1822-1888)
Maine introduced the comparative and anthropological approaches to studying law. He
identified four stages in the development of law, broadly: commands of a ruler, acting under
164).

‘divine inspiration’;
A second stage, where such commands gain wider currency as customary law; The
emergence of a minority, such as priests, who have control of the knowledge and
administration of customary law; and The promulgation of law as a code.
Some societies may not progress beyond these four stages, and these Maine called ‘static’.
The ones that do progress beyond these stages, he called progressive societies. Progressive
societies may use legal fiction, equity, and legislation to further develop law. Maine also
postulated that “The movement of Friedrich Karl Von Savigny (1779-1861) and Henry Maine
(1822-1888) are considered as belonging to the Historical School.
Maine introduced the comparative and anthropological approaches to studying law. He
identified four stages in the development of law, broadly: result of a fixed position which an
individual finds herself in without any act of will on that person’s part, and which that person
cannot change by an act of will (pater familias of a family, for example); to Contract: One’s
position as a member of a network of societal ties, characterized by individual freedom, and
where rights, duties, and liabilities are the result of the exertion of human will.
The Sociological School
The ‘Functional Approach’ to Law
Another approach to understanding law is the ‘functional approach’. This approach emerged
as a reaction to the theories of the ‘analytical positivists’, such as Jeremy Bentham, John
Austin, and Hans Kelsen. This approach emphasises actual social circumstances as the origin
of law and legal institutions, and examines man as a part of society, rather than as an
individual. Broadly speaking, one may divide the ‘functional approach’ into the Historical
and Sociological schools.
A simplistic, but workable understanding of the functional approach might be achieved by
trying to draw a distinction between this approach on the one hand, and the ‘natural law
school’ and ‘analytical positivists’ on the other, by looking at what each considers the source,
or origin of law: while various lines of thought from the natural law and analytical schools
consider law as the command of a sovereign, or, perhaps, as the legislative manifestation of a
grundnorm, the functional approaches consider, broadly, law as the result of the evolution of
society, or a result of historical developments – it is argued that the law is not so much made
by man, as it by social and economic circumstances, or preexisting facts The functional
approach may be divided into the Historical and Sociological schools. Progressive societies

have hitherto been a movement from Status to Contract.” At a very simple level, one could
understand this to mean the movement away from:
Leon Duguit : He was much influenced by August Comte and Durkheim. He denounced
individual rights of men and subordinated them to social interest. He pleaded that “the only
right which a man can possess is the right always to do his duty”.
Durkeim’s work “Division of Labour in Society” influenced Duguit. He divided the needs of
man into two parts –
1. Common Needs– which are satisfied by mutual assistance and
2. Diverse Needs– which are satisfied by exchange of services.
Duguit pronounce pronounced the “theory of social solidarity” which is based on
interdependence of man in society. According to him, the ultimate end of all human activities
is to ensure the interdependence of men. Law also serves the same end. He rejected the
traditional notions of rights, state, sovereignty, legal personality as fiction and unreal, not
based on social reality. His thrust was an mutual co-operation and mutual interdependence
between individuals, groups and associations for the purpose of social cohesion.
According to him Law is a rule which men obey not by virtue of any higher principle but
because they have to live as members of society’. He contemplates gradual withering away of
the state and its replacement by group of associations.
One way of describing the Sociological School could be to say that it took the approach to
understanding law a few steps further away from the position of the analytical positivists.
Roscoe Pound (1870-1964),
According to Roscoe Pound (1870-1964), law was a tool, a means of harmonizing social
interests that may be in conflict. ‘Social engineering’ through law, therefore, could be used to
“…harmonize these [conflicting] interests so as to satisfy the maximum of wants, and
eliminate friction and waste”. This approach embraces various disciplines in understanding
society, and consequently, law, expanding tremendously the approach of the Historical
School in looking at law as something enmeshed with society, rather than something outside
of society.
Pound’s theory seems to be that the subject matter of law is interest; law should “… make a
selection of the socially most valuable objectives and secure them.” These interests could be
individual (private), public, or social. In order to prioritize conflicting interests, Pound
theorized, one must consider various assumptions, or ‘jural postulates’, on the basis of which

every society is ordered. One such jural postulate is that in a civilised society, men must be
able to assume that others will not commit intentional aggressions upon them.
American Realism
Introduction
This article deals with the American realist movement. The term ‘realist’ is a type of
approach to Law under sociological approach.Realist movement in America is considered a
latest branch of sociological Jurisprudence. However, they differs from sociological school as
they are not much concerned about the ends of law but their main concentration is on a
scientific observation of law and its actual functioning. It contend that law is not what is there
in the statutes rather they believed that it emanates from the decisions of judges. For them
law is not what is bestowed by the legislature rather it comes from the decisions of the
judges. So judges are the law makers. A realist concentrates on a scientific observation of law
in its making and working.
It was around 1930’s that some American jurists notably Holmes, Cardozo and Gray raised
their voice against legal conceptualism and stressed on the study of law as it actually operates
and functions. They are called realists and they combined analytical positivism and
sociological ideologies in their legal approach to law and social institutions.5
The main reason
behind the establishment of this approach is to give emphasis on the importance of courts and
the judgments given by the judges according to the human factor in the judges and the
lawyers.American realism is the product of pragmatist and behaviorist approach to social
institutions; it have developed with a characteristic Anglo-American emphasis on the work of
courts and judicial behavior as a corrective to the philosophy of analytical positivism.6
Some of the basic features of realist jurisprudence are firstly, Realist believes that there are
no certainties of law; it depends upon the set of facts produced before the court for decision
secondly, realists do not support formal, logical and conceptual approach to law rather judges
decisions are based on the human conduct. Thirdly, they lay greater stress on psychological
approach to law as it is concerned with human behavior of the lawyers and judges. Fourthly,
Realist are opposed to the value of legal terminology as they consider it the method of
suppressing uncertainty of law and lastly, they prefer to evaluate any part of law in terms of
5
Dr.N.V.Paranjape, Studies in Jurisprudence and legal theory, Central law agency, 7th
Edition, 2013
6
Nomita Aggarwal, Jurisprudence, Legal Theory, Central Law Publications, Ninth Edition, 2012

its effects.7
The main exponents of this school are: O.W.Homes also known as father of
realism, J. Frank, Llewellyn, J.C.Gray, A.Hagestrom, Landstett, Alf Ross, Oliver Crona and
B.N.Corodo.
Emergence of American realism
The realist in America and Realism in Sweden developed simultaneously in 20th
century A.D.
(In 1930’s). Realist movement in America is considered a latest branch of sociological
Jurisprudence. However, they differs from sociological school as they are not much
concerned about the ends of law but their main concentration is on a scientific observation of
law and its actual functioning. Due to this reason the realist school is also known as the “Left
wing of the functional school” (Paton).
The birth place of realism is United States. Realism was introduced to American
Jurisprudence by Oliver Wendell Holmes Jr (1841-1935). In his long tenure as a Justice of
the Supreme Court, he played a fundamental part in bringing about a change attitude to law.
He emphasized on the fact that the life of the law was experience as well as logic and his
view of law as predictions of what courts will decide, stressed the empirical and pragmatic
aspect of law.8
He pointed out that Court play a vital role in reforming the law to suit
according to changing conditions. Decisions bestowed by the appellate courts are based on
logical deductions based on established rules which are in fact legislative in nature. In certain
condition or circumstances courts may make new laws. Statutes likewise rely on the courts'
viability and subsequently can't be considered as law unless upheld by them. As indicated by
his thoughts law is nothing only an expectation about how court will choose a question.
Realism is influenced by pragmatic philosophy. It appears to be antithesis of idealism. Law is
an official action. It is not only body of rule of law or principle of law which are enforced by
court. Human factors in judge, lawyers and other persons concerns also play a role in
decision making process. Instead of focusing and relying upon domestic formulation, actual
working of law and factors influencing that must be scientifically examined.
Realists were the first lawyers to undertake empirical social scientific research into laws and
legal institutions, though many of their assumptions were unworldly and what they produced
is generally thought to suffer from a reliance on crude empiricism.9
Justice Frank said that
there are two groups of realists, “rule-skeptics”, who regards to legal uncertainty and seeks to
discover uniformalities in actual judicial behavior and “Fact-skeptics”, who regards to the
7
Leon Green, The Duty Problem in Negligence Cases (1928) 28 Columbia Law Review 104.
8
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, Eighth Edition,2008
9
Ibid

unpredicted ability of court decisions resides primarily in the elusiveness of facts. Frank also
argued that facts may affect the actual decision as to the law, since courts often “wrench” the
law in order to make it fit what they conceive to be merits of a case, not always with adequate
regard to the wider implications of their decision.
• Evolutionary concept of law
Holmes’ evolutionary view of the law is the first evident in the constitutional law lectures
that he delivered at Harvard College in 1871-72. He criticized Austin’s theory that law is the
command of a political sovereign and argued that law may exists independent and even
opinion, might generate law in a philosophical sense against the will of the sovereign.10
He
demonstrated his theory by the history of tort and crime. He argued that early liability rules
arose from the desire for revenge. At the present era, the reasons behind the strict liability and
vicarious liability are far away from the original motive.
Law is the product of social and economic forces; it adapts and acquires new meanings to
suit. He viewed that law’s progression one of the most important features of evolution,
whether biological or cultural. It is that adaptation is never perfect. In the theory propounded
by Holmes what matters in the end are the concrete decisions of the appellate courts as to
what the law is. The final arbiter of the law in common law systems is not the legislature but
the judges of the highest court of appeal. In the United States, court is the state supreme court
or the US Supreme Court, depending on the kind of case. In Britain it is the House of Lords
and in Australia it is the High Court of Australia. He contradicts his own injunction to keep
‘the law as it is’ separate from ‘the law as it ought to be’. According to Holmes, Appellate
judges perform a legislative function in harmonize the law to ‘What is expedient for the
community concerned’.
In the Rylands v Fletchercourt decided that the loss should be borne not by the party that
introduced the dangerous substances to the neighbourhood but by the party that was most
able to bear the loss, the system of rules upon which British society and commerce functioned
would have been instantly destabilized. Holmes was aware of these constraints on judicial
discretion which consequently gives false impressions of his theory.
Law is an official action. It is not only body of rule of law or principle of law which are
enforced by court. Human factors in judge, lawyers and other person concern also play a role
in decision making process. Law emanates from judge. They interpret the law. Therefore,
they are moulder of justice. Law is part of complex social world. It is product of social forces.
10
Suri, Ratnapala, Jurisprudence, Cambridge university press,2009

Truth of law is truth of social realities to know the truth of laws emphasis must be given in
law in action than law in books.
Characteristics of American Realism and its effect on society
• Characteristics
The main characteristics features of Realist Jurisprudence as follows as stated by Goodhart
are as follows-
1. The realist believe that there can be no definiteness about law as its predictability
depends upon the set of facts which are before the court for decision.
2. They do not support the formal, logical and conceptual approach to law because the
court while deciding a case reaches his decision on ‘emotive’ rather than logical
grounds.
3. They lay greater emphasis on psychological approach to the proper understanding of
law as it is concerned with human behavior and convictions of the lawyers and
Judges.
4. They oppose the value of legal termology, for they consider it as tacit method of
suppressing uncertainty of law.
5. They prefer to evaluate any part of law in terms of its effect.
• Effects
The realistic movement is part of the sociological approach and is something called “Left
wing of functional school”. It is different from sociological school in this respect that it is
little concerned with ends.
According to Frank, certainty in law is myth. Those who search certainty in law are suffering
from father complex. A "father complex" refers to a collection of ideas surrounding
the archetype of the father. These associations develop unconsciously through interactions
with a father or father figure and exposure to different models of parenting. 11
Roscoe Pound has defined realism as fidelity to nature, accurate recording of things as they
are, as contrasted with things as they are imagined to be, or wished to be, or as one feels they
ought to be. Realism is anti-thesis of idealism.
Justice Ajit Nath Ray superseded by the three senior most judges Jaishanker Manilal Shelat,
A N Grover and K S Hedge and became a chief justice of India through the Political
11
Retrieved from http://www.wisegeek.com/what-is-the-father-complex.htm

conspirations. His appointment was viewed as an attack on independence of judiciary. It was
widespread protested by the bar associations and legal groups across
India.Justice Mohammad Hidayatullah (who was CJI earlier) remarked that "this was an
attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes
of the office of Chief Justice".12
After becoming Chief Justice, A.N. Ray developed an
adulatory attitude towards Prime Minister Indira Gandhi. He made himself amenable to her
influence by telephoning her frequently, and also asks her personal secretary's advice on
simple matters, conveying the impression that Prime Minister's views might be heard
concerning an ongoing court-case.
Justice K Laxminarsimha Rao who was suspended by the Andhra Pradesh High court for his
alleged involvement in granting bail to OMC illegal mining accused, former Karnataka
minister Janardhana Reddy, has been arrested. Apart from Rao, the Andhra Pradesh high
court also suspended another judge, Justice D Prabhakar, for his alleged involvement in the
case, in which Justice Pattabhi Rama Rao was arrested.
The case has alleged that the two judges when posted at Vapi JMFC court, Valsad district
were captured in a spy camera fitted in their chairs and below their tables. The recordings,
both in audio and video format, revealed that the accused judges were found “negotiating”
over phone in order to favour the lawyers. The Gujarat High Court has suspended two judges
who have been caught on camera while allegedly “settling money” over phone. The court’s
vigilance cell lodged an FIR against the two judges and ten other persons, including a clerk
and a stenographer.
Comparison of realism between America and India
America is much more civilized than India. There are numerous of differences either in terms
of constitution or elections procedures. A major distinction between the two constitutions is
that India has a PM which is similar to the president however is really the leader of the
legislative branch, while the U.S. Constitution has a president, who is the head of the
government, and just works in the executive branch. Under the Indian Constitution, the head
of state is the president while the actual head is the Prime Minister. The Prime Minister and
his cabinet hold the genuine force, while the president has more power in the name. In India,
the Lok Sabha or the Lower House is more powerful than the Rajya Sabha or Upper House
and its members are directly elected by the people while In the U.S. the House of Senate or
the Upper House is more powerful than the Lower House. A member of the Rajya Sabha is
12
Retrieved from https://en.wikipedia.org/wiki/A._N._Ray

indirectly elected, while a member of the Senate is directly elected.13
Indians vote in favor of
their Prime Minister (in a roundabout way) by choosing the Members of the Lok Sabha who
challenge in different Parliamentary voting public over the country.Americans vote in favor
of their President by implication of voting in favor of the hopefuls of slated Electoral College
of their state (who are not the Senators or the House's Members of Representatives practically
equivalent to our bicameral Lok Sabha and Rajya Sabha). The appointive school then votes
in favor of the President and Vice President.
The case of State of West Bengal v. The Committee for Protection of Democratic Rights14
,
presents challenging questions to Indian Constitutional law jurisprudence with regard to the
power of the judiciary vis-à-vis other organs of the state.15
It is a point of interest judgment
where the Supreme Court held that a High Court can coordinate the Central Bureau of
Investigation (hereinafter, CBI) to examine an offense without the state's assent government
inside of whose regional ward the offense is charged to have occurred. This force is
unmistakably an executive one, and is one that has been explicitly denied to the Parliament.
Subsequently, while the applicant contended depending on the tenet of separation of powers
and the government setup imagined under the Indian Constitution, the Court refuted the
solicitor by utilizing its energy of legal audit.Thus, the case presents an interesting battle
between the legislature, executive and judiciary, bringing the scope of judicial power under
examination.
In this case where is justice? The main purpose of law is to give relief to the victim but in
reality there is no justice lies towards the victim because if the CBI enquiry cannot be made
without the consent of alleged ruling party. Whatever the justification made by the apex
court. We are talking about just, fair and reasonable law, but in reality where is law stand?
We talks about “Federalism” but on the name of federation we negate the victims to get any
remedies which was affected by ruling party of the state of West Bengal. In this case the
murder committed by ruling party and subsequently gets protection on the name of federation
(Enquiry made by CBI cannot be possible without the consent of the state). Is there any
legitimacy to say that violator himself become the judge of his own cause, where is natural
justice? No one become judge on his own cause (this is the first principle of Natural Justice)
but if we examine through the American Realism the reality in India is that there is an official
13
Retrieved from http://arosebyanyothernameca.weebly.com/the-differences-and-similarities-between-the-
constitutions-of-india-and-the-us.html
14
2010 (2) S.C.A.L.E. 467.
15
Raadhika Gupta, State of West Bengal v. Committee for Protection of Democratic Rights; Is Judicial Review
the Indian Judiciary’s Trump Card?,2001

action, human factors in judges, lawyers and other person concerns like legislature reserved
the “consent system” for CBI enquiry intentionally to protect the “State’s arbitrariness” or
Tyrannical Act of state of West Bengal, which emanates from judge. They interpret the law,
therefore, they are considered as the moulder of Justice.
Conclusion
The realists contended that law has emanated from Judges, therefore, law is what courts do
and not what they say. For them, Judges, therefore, law is what courts do and not what they
say. For them, Judges are the law maker. The Friedman rightly said that O.W.Homes,
G.C.Gray, B.Cardozo, J.Frank and Roscoe Pound were the ‘mental Fathers’ of the US realist
movement.
In India, the whole legal system run through two main systems leveled as substantive and
procedural system of law. Although we have various “Acts” or “Statutes” enshrined in the
various legal rights and Duties but so far as the applicability of Law is concerned there are
several things came together via personality of judges, lawyers, social factors, caste, creed,
ideology and interests of the judges. These factors influence the justice system in India.
Society changes faster than law. It is a subject of examination as to how the law will meet the
problem of contemporary society. More emphasis should be given to what the court and
people do rather than upon rules and principles.
Economic School of Jurisprudence
The Marxist Doctrine
Marxism is the system of Marx’s views and teachings. Marx was the genius who continued
and consummated the three main ideological currents of the 19th century, as represented by
the three most advanced countries of mankind: classical German philosophy, classical English
political economy, and French socialism combined with French revolutionary doctrines in
general. Acknowledged even by his opponents, the remarkable consistency and integrity of
Marx’s views, whose totality constitutes modern materialism and modern scientific socialism,
as the theory and programme of the working-class movement in all the civilized countries of
the world, make it incumbent on us to present a brief outline of his world-conception in

general, prior to giving an exposition of the principal content of Marxism, namely, Marx’s
economic doctrine.
Philosophical Materialism
Beginning with the years 1844–45, when his views took shape,
Marx was a materialist and especially a follower of Ludwig
Feuerbach, whose weak point he subsequently saw only in his
materialism being insufficiently consistent and comprehensive. To
Marx, Feuerbach’s historic and “epoch-making” significance lay in
his having resolutely broken with Hegel’s idealism and in his
proclamation of materialism, which already “in the 18th century,
particularly French materialism, was not only a struggle against the
existing political institutions and against... religion and theology, but
also... against all metaphysics” (in the sense of “drunken
speculation” as distinct from “sober philosophy”). (The Holy
Family, in LiterarischerNachlass[1]
) “To Hegel... ,” wrote Marx, “the
process of thinking, which, under the name of ‘the Idea’, he even
transforms into an independent subject, is the demiurgos (the creator,
the maker) of the real world.... With me, on the contrary, the ideal is
nothing else than the material world reflected by the human mind,
and translated into forms of thought.” (Capital, Vol. I, Afterward to
the Second Edition.) In full conformity with this materialist
philosophy of Marx’s, and expounding it, Frederick Engels wrote
in Anti-Duhring (read by Marx in the manuscript): “The real unity of
the world consists in its materiality, and this is proved... by a long
and wearisome development of philosophy and natural science....”
“Motion is the mode of existence of matter. Never anywhere has
there been matter without motion, or motion without matter, nor can
there be.... Bit if the... question is raised: what thought and
consciousness really are, and where they come from; it becomes
apparent that they are products of the human brain and that main
himself is a product of Nature, which has developed in and along
with its environment; hence it is self-evident that the products of the

human brain, being in the last analysis also products of Nature, do
not contradict the rest of Nature’s interconnections but are in
correspondence with them....
“Hegel was an idealist, that is to say, the thoughts within his mind
were to him not the more or less abstract images [Abbilder,
reflections; Engels sometimes speaks of “imprints”] of real things
and processes, but on the contrary, things and their development
were to him only the images, made real, of the “Idea” existing
somewhere or other before the world existed.”
In his Ludwig Feuerbach—which expounded his own and Marx’s
views on Feuerbach’s philosophy, and was sent to the printers after
he had re-read an old manuscript Marx and himself had written in
1844-45 on Hegel, Feuerbach and the materialist conception of
history—Engels wrote:
“The great basic question of all philosophy, especially
of more recent philosophy, is the relation of thinking
and being... spirit to Nature... which is primary, spirit or
Nature.... The answers which the philosophers gave to
this question split them into two great camps. Those
who asserted the primary of spirit to Nature and,
therefore, in the last instance, assumed world creation in
some form or other... comprised the camp of idealism.
The others, who regarded Nature as primary, belonged
to the various schools of materialism.”
Any other use of the concepts of (philosophical) idealism and
materialism leads only to confusion. Marx decidedly rejected, not
only idealism, which is always linked in one way or another with
religion, but also the views—especially widespread in our day—of
Hume and Kant, agnosticism, criticism, and positivism[2]
in their
various forms; he considered that philosophy a “reactionary”
concession to idealism, and at best a “shame-faced way of

surreptitiously accepting materialism, while denying it before the
world.”[3]
On this question, see, besides the works by Engels and Marx
mentioned above, a letter Marx wrote to Engels on December 12,
1868, in which, referring to an utterance by the naturalist Thomas
Huxley, which was “more materialistic” than usual, and to his
recognition that “as long as we actually observe and think, we cannot
possibly get away from materialism”, Marx reproached Huxley for
leaving a “loop hole” for agnosticism, for Humism.
It is particularly important to note Marx’s view on the relation
between freedom and necessity: “Freedom is the appreciation of
necessity. ‘Necessity is blind only insofar as it is not understood.’”
(Engels in Anti-Duhring) This means recognition of the rule of
objective laws in Nature and of the dialectical transformation of
necessity into freedom (in the same manner as the transformation of
the uncognizedbut cognizable “thing-in-itself” into the “thing-for-
us”, of the “essence of things” into “phenomena”). Marx and Engels
considered that the “old” materialism, including that of Feuerbach
(and still more the “vulgar” materialism of Buchner, Vogt and
Moleschott), contained the following major shortcomings:
(1)
(2)
(3)
this materialism was “predominantly
mechanical,” failing to take account of the
latest developments in chemistry and biology
(today it would be necessary to add:
and in the electrical theory of matter);
the old materialism was non-historical and
non-dialectical (metaphysical, in the
meaning of anti-dialectical), and did not
adhere consistently and comprehensively
to the standpoint of development;
it regarded the “human essence” in the

abstract, not as the “complex of
all” (concretely and historically determined)
“social relations”, and therefore
merely “interpreted” the world, whereas it
was a question of “changing” it,
i.e., it did not understand the importance of
“revolutionary practical activity”.
Dialectics
As the most comprehensive and profound doctrine of
development, and the richest in content, Hegelian dialectics was
considered by Marx and Engels the greatest achievement of classical
German philosophy. They thought that any other formulation of the
principle of development, of evolution, was one-sided and poor in
content, and could only distort and mutilate the actual course of
development (which often proceeds by leaps, and via catastrophes
and revolutions) in Nature and in society.
“Marx and I were pretty well the only people to rescue conscious
dialectics [from the destruction of idealism, including Hegelianism]
and apply it in the materialist conception of Nature.... Nature is the
proof of dialectics, and it must be said for modern natural science
that it has furnished extremely rich [this was written before the
discovery of radium, electrons, the transmutation of elements, etc.!]
and daily increasing materials for this test, and has thus proved that
in the last analysis Nature’s process is dialectical and not
metaphysical.
“ The great basic thought,” Engels writes, “that the world is not to
be comprehended as a complex of ready-made things, but as a
complex of processes, in which the things apparently stable no less
than their mind images in our heads, the concepts, go through an
uninterrupted change of coming into being and passing away... this

great fundamental thought has, especially since the time of Hegel, so
thoroughly permeated ordinary consciousness that in this generality
it is now scarcely ever contradicted. But to acknowledge this
fundamental thought in words and to apply it in reality in detail to
each domain of investigation are two different things.... For
dialectical philosophy nothing is final, absolute, sacred. It reveals the
transitory character of everything and in everything; nothing can
endure before it except the uninterrupted process of becoming and of
passing away, of endless ascendancy from the lower to the higher.
And dialectical philosophy itself is nothing more than the mere
reflection of this process in the thinking brain.” Thus, according to
Marx, dialectics is “the science of the general laws of motion, both
of the external world and of human thought.”[4]
This revolutionary aspect of Hegel’s philosophy was adopted and
developed by Marx. Dialectical materialism “does not need any
philosophy standing above the other sciences.” From previous
philosophy there remains “the science of thought and its laws—
formal logic and dialectics.” Dialectics, as understood by Marx, and
also in conformity with Hegel, includes what is now called the
theory of knowledge, or epistemology, studying and generalizing the
original and development of knowledge, the transition from non-
knowledge to knowledge.
In our times, the idea of development, of evolution, has almost
completely penetrated social consciousness, only in other ways, and
not through Hegelian philosophy. Still, this idea, as formulated by
Marx and Engels on the basis of Hegels’ philosophy, is far more
comprehensive and far richer in content than the current idea of
evolution is. A development that repeats, as it were, stages that have
already been passed, but repeats them in a different way, on a higher
basis (“the negation of the negation”), a development, so to speak,
that proceeds in spirals, not in a straight line; a development by
leaps, catastrophes, and revolutions; “breaks in continuity”; the

transformation of quantity into quality; inner impulses towards
development, imparted by the contradiction and conflict of the
various forces and tendencies acting on a given body, or within a
given phenomenon, or within a given society; the interdependence
and the closest and indissoluble connection between all aspects of
any phenomenon (history constantly revealing ever new aspects), a
connection that provides a uniform, and universal process of motion,
one that follows definite laws—these are some of the features of
dialectics as a doctrine of development that is richer than the
conventional one. (Cf. Marx’s letter to Engels of January 8, 1868, in
which he ridicules Stein’s “wooden trichotomies,” which it would be
absurd to confuse with materialist dialectics.)
The Materialist Conception of History
A realization of the inconsistency, incompleteness, and
onesidedness of the old materialism convinced Marx of the necessity
of “bringing the science of society... into harmony with the
materialist foundation, and of reconstructing it thereupon.”[5]
Since
materialism in general explains consciousness as the outcome of
being, and not conversely, then materialism as applied to the social
life of mankind has to explain social consciousness as the outcome
of social being. “Technology,” Marx writes (Capital, Vol. I),
“discloses man’s mode of dealing with Nature, the immediate
process of production by which he sustains his life, and thereby also
lays bare the mode of formation of his social relations, and of the
mental conceptions that flow from them.”[6]
In the preface to
his Contribution to the Critique of Political Economy, Marx gives an
integral formulation of the fundamental principles of materialism as
applied to human society and its history, in the following words:
“In the social production of their life, men enter into
definite relations that are indispensable and independent
of their will, relations of production which correspond to
a definite stage of development of their material

productive forces.
“The sum total of these relations of production
constitutes the economic structure of society, the real
foundation, on which rises a legal and political
superstructure and to which correspond definite forms of
social consciousness. The mode of production of
material life conditions the social, political and
intellectual life process in general. It is not the
consciousness of men that determines their being, but,
on the contrary, their social being that determines their
consciousness. At a certain stage of their development,
the material productive forces of society come in
conflict with the existing relations of production, or—
what is but a legal expression for the same thing—with
the property relations within which they have been at
work hitherto. From forms of development of the
productive forces these relation turn into their fetters.
Then begins an epoch of social revolution. With the
change of the economic foundation the entire immense
superstructure is more or less rapidly transformed. In
considering such transformations a distinction should
always be made between the material transformation of
the economic conditions of production, which can be
determined with the precision of natural science, and the
legal, political, religious, aesthetic or philosophic—in
short, ideological forms in which men become conscious
of this conflict and fight it out.
“Just as our opinion of an individual is not based on
what he thinks of himself, so we cannot judge of such a
period of transformation by its own consciousness; on
the contrary, this consciousness must be explained rather
from the contradictions of material life, from the

existing conflict between the social productive forces
and the relations of production.... In broad outlines,
Asiatic, ancient, feudal, and modern bourgeois modes of
production can be designated as progressive epochs in
the economic formation of society.”[7]
[Cf. Marx’s brief
formulation in a letter to Engels dated July 7, 1866:
“Our theory that the organization of labor is determined
by the means of production.”]
The discovery of the materialist conception of history, or more
correctly, the consistent continuation and extension of materialism
into the domain of social phenomena, removed the two chief
shortcomings in earlier historical theories. In the first place, the latter
at best examined only the ideological motives in the historical
activities of human beings, without investigating the origins of those
motives, or ascertaining the objective laws governing the
development of the system of social relations, or seeing the roots of
these relations in the degree of development reached by material
production; in the second place, the earlier theories did not embrace
the activities of the masses of the population, whereas historical
materialism made it possible for the first time to study with scientific
accuracy the social conditions of the life of the masses, and the
changes in those conditions. At best, pre-Marxist “sociology” and
historiography brought forth an accumulation of raw facts, collected
at random, and a description of individual aspects of the historical
process. By examining the totality of opposing tendencies, by
reducing them to precisely definable conditions of life and
production of the various classes of individual aspects of the
historical process. By examining the choice of a particular
“dominant” idea or in its interpretation, and by revealing that,
without exception, all ideas and all the various tendencies stem from
the condition of the material forces of production, Marxism indicated
the way to an all-embracing and comprehensive study of the process
of the rise, development, and decline of socio-economic systems.

People make their own history but what determines the motives of
people, of the mass of people—i.e., what is the sum total of all these
clashes in the mass of human societies? What are the objective
conditions of production of material life that form the basis of all
man’s historical activity? What is the law of development of these
conditions? To all these Marx drew attention and indicated the way
to a scientific study of history as a single process which, with all its
immense variety and contradictoriness, is governed by definite laws.
The Class Struggle
It is common knowledge that, in any given society, the striving of
some of its members conflict with the strivings of others, that social
life is full of contradictions, and that history reveals a struggle
between nations and societies, as well as within nations and
societies, and, besides, an alternation of periods of revolution and
reaction, peace and war, stagnation and rapid progress or decline.
Marxism has provided the guidance —i.e., the theory of the class
struggle—for the discovery of the laws governing this seeming maze
and chaos. It is only a study of the sum of the strivings of all the
members of a given society or group of societies that can lead to a
scientific definition of the result of those strivings. Now the
conflicting strivings stem from the difference in the position and
mode of life of the classes into which each society is divided.
“The history of all hitherto existing society is the history of class
struggles,” Marx wrote in the Communist Manifesto (with the
exception of the history of the primitive community, Engels added
subsequently). “Freeman and slave, patrician and plebeian, lord and
serf, guild-master and journeyman, in a word, oppressor and
oppressed, stood in constant opposition to one another, carried on an
uninterrupted, now hidden, now open fight, a fight that each time
ended, either in a revolutionary reconstruction of society at large, or
in the common ruin of the contending classes.... The modern
bourgeois society that has sprouted from the ruins of feudal society

has not done away with class antagonisms. It has but established new
classes, new conditions of oppression, new forms of struggle in place
of the old ones. Our epoch, the epoch of the bourgeoisie, possesses,
however, this distinctive feature: it has simplified class antagonisms.
Society as a whole is more and more splitting up into two great
hostile camps, into two great classes directly facing each other:
Bourgeoisie and Proletariat.”
Ever since the Great French Revolution, European history has, in
a number of countries, tellingly revealed what actually lies at the
bottom of events—the struggle of classes. The Restoration period in
France[8]
already produced a number of historians (Thierry, Guizot,
Mignet, and Thiers) who, in summing up what was taking place,
were obliged to admit that the class struggle was taking place, were
obliged to admit that the class struggle was the key to all French
history. The modern period—that of complete victory of the
bourgeoisie, representative institutions, extensive (if not universal)
suffrage, a cheap daily press that is widely circulated among the
masses, etc., a period of powerful and every-expanding unions of
workers and unions of employers, etc.—has shown even more
strikingly (though sometimes in a very one-sided, “peaceful”, and
“constitutional” form) the class struggle as the mainspring of events.
The following passage from Marx’s Communist Manifesto will
show us what Marx demanded of social science as regards an
objective analysis of the position of each class in modern society,
with reference to an analysis of each class’s conditions of
development:
“Of all the classes that stand face to face with the
bourgeoisie today, the proletariat alone is a really
revolutionary class. The other classes decay and finally
disappear in the face of Modern Industry; the proletariat
is its special and essential product. The lower middle
class, the small manufacturer, the shopkeeper, the

artisan, the peasant, all these fight against the
bourgeoisie, to save from extinction their existence as
fractions of the middle class. They are therefore not
revolutionary, but conservative. Nay more, they are
reactionary, for they try to roll back the wheel of history.
If by chance they are revolutionary, they are so only in
view of their impending transfer into the proletariat;
they thus defend not their present, but their future
interests; they desert their own standpoint to place
themselves at that of the proletariat.”
In a number of historical works (see Bibliography), Marx gave
brilliant and profound examples of materialist historiography, of an
analysis of the position of eachindividual class, and sometimes of
various groups or strata within a class, showing plainly why and how
“every class struggle is a political struggle.”[9]
The above-quoted
passage is an illustration of what a complex network of social
relations and transitional stages from one class to another, from the
past to the future, was analyzed by Marx so as to determine the
resultant of historical development.
Marx’s economic doctrine is the most profound, comprehensive
and detailed confirmation and application of his theory.

LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY

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