The document summarizes the key ideas of the Historical School of jurisprudence. It discusses the origins of the school as a reaction to Natural Law. Major proponents discussed include Savigny, Puchta, and Maine. Savigny argued that law evolves from the spirit of the people and their customs over time, not by legislation. He opposed codification in Germany at the time as the people were not ready. Puchta built on Savigny's ideas to argue that law emerges from the conflict between individual and general wills in society. Maine analyzed how law developed from a system based on status to one based on contracts over time.
Historical jurisprudence which explain how an act enacted using historical way. The society follows an culture continuously. It will be created to an act by modern day government.
The document summarizes the key concepts of the historical school of jurisprudence. It discusses that historical jurists like Montesquieu, Savigny, and Maine believed that law develops organically over time based on the customs and traditions of the people, rather than being created through legislation or judicial decisions. Savigny's concept of "Volksgeist" described law as emerging from the shared spirit or values of the national community. The historical school rejected theories of natural law and viewed law as continually evolving according to the changing needs and norms of society.
This document provides an overview of a textbook on political science concepts and theories for Class XII students. It covers key topics such as law, liberty, equality, justice, human rights, and dharma.
The document includes chapters on the definition and nature of law, the relationship between law and morality, and the different sources and types of law. It discusses perspectives on what law is, whether it is dependent on morality, and the role of coercion. The chapter on liberty explores the complex meaning of the term and how it relates to free choice without external constraints.
The textbook appears to take an in-depth look at foundational political concepts from both Western and Indian viewpoints. It examines these ideas through discussions
This document discusses different schools of jurisprudence and their views on the nature and role of law. It covers the analytical school founded by John Austin which views law as the command of the sovereign. It also discusses the historical school founded by Savigny which sees law as an expression of cultural traditions. The sociological school examines the relationship between law and society. Islamic law (Syariah law) and its sources are also covered.
presentation on law as an instrument of social engineering contains- WHAT IS LAW. Why Law Is Needed In Society. SOCIAL ENGINEERING. What Would Happen If There Are No Laws. ROSCOE POUND’S THEORY. Interests . • Law As Social Engineering Theory of Balancing of Interests. Law as Purposive Functional and Need- Based. Summary
This document provides an overview of conceptual analyses of law from different perspectives. It discusses law in terms of social order, elements of the state, and justice. It also examines definitions of law from various philosophical and sociological viewpoints. The document outlines how law has evolved from being intertwined with morality to becoming more consciously separated through legal positivism. However, morality still influences lawmaking and the interpretation of legal principles.
This document discusses different perspectives on jurisprudence from various scholars. It covers natural law, analytical jurisprudence, historical jurisprudence, and the origins and basic tenets of different schools of thought. Some key points discussed include Savigny's view of law developing organically from a people's shared consciousness or "Volksgeist"; Austin establishing analytical jurisprudence by treating law as commands from a sovereign; and the historical school emerging in reaction to natural law theory.
The document summarizes the key ideas of the Historical School of jurisprudence. It discusses the origins of the school as a reaction to Natural Law. Major proponents discussed include Savigny, Puchta, and Maine. Savigny argued that law evolves from the spirit of the people and their customs over time, not by legislation. He opposed codification in Germany at the time as the people were not ready. Puchta built on Savigny's ideas to argue that law emerges from the conflict between individual and general wills in society. Maine analyzed how law developed from a system based on status to one based on contracts over time.
Historical jurisprudence which explain how an act enacted using historical way. The society follows an culture continuously. It will be created to an act by modern day government.
The document summarizes the key concepts of the historical school of jurisprudence. It discusses that historical jurists like Montesquieu, Savigny, and Maine believed that law develops organically over time based on the customs and traditions of the people, rather than being created through legislation or judicial decisions. Savigny's concept of "Volksgeist" described law as emerging from the shared spirit or values of the national community. The historical school rejected theories of natural law and viewed law as continually evolving according to the changing needs and norms of society.
This document provides an overview of a textbook on political science concepts and theories for Class XII students. It covers key topics such as law, liberty, equality, justice, human rights, and dharma.
The document includes chapters on the definition and nature of law, the relationship between law and morality, and the different sources and types of law. It discusses perspectives on what law is, whether it is dependent on morality, and the role of coercion. The chapter on liberty explores the complex meaning of the term and how it relates to free choice without external constraints.
The textbook appears to take an in-depth look at foundational political concepts from both Western and Indian viewpoints. It examines these ideas through discussions
This document discusses different schools of jurisprudence and their views on the nature and role of law. It covers the analytical school founded by John Austin which views law as the command of the sovereign. It also discusses the historical school founded by Savigny which sees law as an expression of cultural traditions. The sociological school examines the relationship between law and society. Islamic law (Syariah law) and its sources are also covered.
presentation on law as an instrument of social engineering contains- WHAT IS LAW. Why Law Is Needed In Society. SOCIAL ENGINEERING. What Would Happen If There Are No Laws. ROSCOE POUND’S THEORY. Interests . • Law As Social Engineering Theory of Balancing of Interests. Law as Purposive Functional and Need- Based. Summary
This document provides an overview of conceptual analyses of law from different perspectives. It discusses law in terms of social order, elements of the state, and justice. It also examines definitions of law from various philosophical and sociological viewpoints. The document outlines how law has evolved from being intertwined with morality to becoming more consciously separated through legal positivism. However, morality still influences lawmaking and the interpretation of legal principles.
This document discusses different perspectives on jurisprudence from various scholars. It covers natural law, analytical jurisprudence, historical jurisprudence, and the origins and basic tenets of different schools of thought. Some key points discussed include Savigny's view of law developing organically from a people's shared consciousness or "Volksgeist"; Austin establishing analytical jurisprudence by treating law as commands from a sovereign; and the historical school emerging in reaction to natural law theory.
This document provides an overview of three major theories of law: natural law, positivism, and sociological theories.
The natural law section describes natural law as law that is in accordance with nature and morality. It outlines key principles like laws being derived from human reasoning and conscience. Positivism holds that only positive law established by the state is valid law, regardless of morality. Sociological theories view law as a social institution that should be interpreted in its social context to benefit society. Law is studied as a means of social control and problem-solving.
This lecture introduces key concepts of the Canadian legal system. It discusses why studying Canadian law is important, the role of law in a diverse country like Canada, and traditional theories of law. It defines important terms like constitutional monarchy, federalism, and the separation of powers among the judicial, legislative and executive branches of government. It also explains the rule of law and consensus and conflict views of how laws are made.
Roscoe Pound proposed a theory of law as social engineering. He viewed law as a tool for balancing competing interests in society, similar to how engineers design products. Pound argued law should balance individual interests, public interests, and social interests to minimize conflict and maximize happiness. He outlined five "jural postulates" of interests that law should protect, such as protection from aggression and securing property. While Pound's theory aimed to adapt law to social needs, critics argue terms like "friction" are too mechanistic and it overlooks important personal freedoms. Overall, Pound advocated a functional approach where law evolves with society.
This document provides information about a law course assignment on law as an agency of social control. It includes the student's details, topic, and contents. The introduction discusses how social order requires conformity to laws and norms. There are formal agencies like laws and informal agencies like customs that control behavior. As societies progressed, customs gave way to codified laws enacted by the state. The document then discusses the meaning of law, differences between customs and laws, and how law acts as a formal system of rules to maintain order in modern complex societies. It provides examples of laws regulating activities like marriage, food, and smoking. The conclusion states that law exercises great control over behavior and is important for social control.
This document discusses the various sources of law. It identifies several formal and material sources of law. Formal sources include legislation, judicial precedent, and custom - which are authoritative sources that laws derive their validity from. Material sources are those that provide the substance or content of laws, and include historical sources like writings and unpublished works, as well as legal sources like legislation, precedent, and custom. The document also examines different classifications of sources put forth by legal theorists like Austin, Salmond and others. It notes there are debates around what should properly be considered a source of law.
The document discusses legal positivism and different types of positivism. It outlines analytical positivism as a school of thought that believes only legitimate sources of law are written rules enacted by governmental bodies. Key figures discussed include Jeremy Bentham, John Austin, H.L.A. Hart, and Hans Kelsen. Legal positivism seeks to separate law from morality and analyze it based on what the law actually states rather than what it should be.
The document discusses the nature, function, and classification of law. It defines law and distinguishes it from morality and justice. Several schools of thought on defining law are examined, including natural law, legal positivism, and Marxist theory. The functions of law in society are also outlined. Laws are classified as public or private, substantive or procedural, and international law is discussed.
This document discusses key concepts and features of law. It defines law and outlines its origins and development. It describes different types of law, including general law, foreign law, private international law, conventional law, and special laws. The sources of law are discussed, including custom, religion, judicial decisions, legislation, scientific commentaries, and equity. Salmond's classification of formal and material sources of law is also presented. Finally, the document outlines important features of law such as applicability, uniformity, and its role in establishing order in society.
This document discusses different theories of jurisprudence, beginning with natural law theory. It then covers the development of natural law from the classical period through the medieval/Christian period and Renaissance period. Key philosophers from each period and their views on natural law are described, including Aristotle, Aquinas, Locke, and Rousseau. The document also provides an overview of legal positivism and its key tenets, such as separating law from morality and viewing law as a social fact defined by its enactment rather than its ethical merits.
This document summarizes several theories of jurisprudence:
1. Natural Law Theory defines principles of right and wrong that are considered to emanate from a supreme source like God or reason. It argues that unjust laws are not true laws. Critics say the concept of morality varies over time and place.
2. Marxist theory views law as a tool for the economically dominant class to exploit the oppressed class. Marx predicted society would evolve from capitalism to perfect communism with the elimination of classes and the withering away of law and the state.
3. Stammler's Natural Law with Variable Content holds that just law aims to preserve individual freedom within society, with the criteria of just law varying over time and place.
Judicial process aims to maintain social order by resolving disputes and eliminating injustice. It has evolved gradually in India, influenced by ancient customs and the modern legal system established under British rule. The court system, from the Supreme Court downwards, uses precedents, customs and societal factors to interpret laws and ensure they align with social values. Judges play a key role in balancing stability and change, interpreting laws to address new issues while upholding established principles, thus guiding social development through a well-ordered legal framework.
The document discusses several schools of jurisprudence including analytical, historical, and natural law schools. It provides an overview of prominent legal philosophers within each school. For the analytical school, it outlines Jeremy Bentham's utilitarian philosophy and John Austin's theory that law is the command of the sovereign. It also discusses H.L.A. Hart's contribution of distinguishing between primary and secondary rules. For the historical school, it summarizes Henry Maine's theory of the progression from status to contract. It then provides brief descriptions of other schools and thinkers such as legal positivism, natural law, and sociological jurisprudence.
Introduction to english jurisprudence (1)AQSA SHAHID
Jurisprudence is the study of fundamental legal principles and their relationship to other social sciences. It is derived from the Latin terms "juris" meaning law and "prudentia" meaning knowledge. Jurisprudence has three main branches: historical jurisprudence examines the origins and development of law; analytical jurisprudence analyzes basic legal concepts and principles; and ethical jurisprudence approaches law from an ethical perspective of how it should ideally be. Jurisprudence has practical applications such as providing terminology to legislators, filling gaps in laws, and helping legal professionals better understand statutes. It also relates to other fields like sociology, psychology, economics, and politics that influence and are influenced by legal systems.
This document discusses different schools of legal thought and their classification. It covers the natural law school, historical school, sociological school, positivist/analytical school, and realist school. For each school, it provides the main reasons for their emergence, key exponents, and their definition of law. The historical school focuses on law developing through customs. The sociological school sees law as a tool for social engineering. The positivist school treats law as commands from a sovereign. And the realist school defines law as what courts declare it to be.
The document discusses the concept of jurisprudence from several perspectives:
1. Jurisprudence is defined as the study and theory of law, including the principles behind law and legal reasoning. It aims to obtain a deeper understanding of the nature of law.
2. Modern jurisprudence began in the 18th century focused on natural law, civil law, and international law. Jurisprudence can be divided based on the types of questions scholars seek to answer and different theories about how to answer them.
3. The analytical school of jurisprudence, founded by John Austin, aims to analyze the first principles of law without considering history, development or validity. It emphasizes positive law as the command of
This document provides an overview of perspectives on the function and purpose of law. It discusses law as a cultural element that reflects a society's beliefs, values, and norms. It examines the views of philosophers like Plato, Aristotle, Hobbes, and Locke on the relationship between individuals, the state, and law. Sociological perspectives from Weber and Durkheim are presented, as are consensus and conflict-based views of a society's use of law to maintain order or preserve the interests of certain groups. The document aims to introduce key theories on what law is, what role it plays in culture and society, and how it both reflects and shapes human behavior and interactions.
This document provides an overview of key concepts in law, including definitions of law, theories of law, sources of law, classifications of law, and the law of persons. It defines law and discusses natural law theory, positive law theory, Marxist law theory, and realist theory. It also covers sources of law, classifications such as public/private law and civil/criminal law. Finally, it addresses the meaning of a legal person, commencement and termination of legal personality, and capacity and incapacity of natural persons.
This document discusses the nature of law and its key components. It covers the concept of law, sources of law, and the spirit of law. For the concept of law, it describes how law establishes order and promotes justice through a set of enforceable rules. The sources of law include primary sources like legislation and constitutions, as well as secondary sources such as judicial precedent and customary law. The spirit of law refers to the underlying principles of justice, order, protection, and public interest that guide the creation and interpretation of legal rules.
Law is defined in several ways according to different philosophies and perspectives. Generally, law consists of rules imposed by a governing authority to maintain order and justice in society. There are different types of law including private law, which governs relationships between individuals, and public law, which deals with state powers and authorities. Laws originate from various sources over time, such as customs, religion, judicial precedents, and more recently, legislation passed by governing bodies. The legislative process involves bills being introduced, debated, and voted on before becoming law.
This document provides an overview of three major theories of law: natural law, positivism, and sociological theories.
The natural law section describes natural law as law that is in accordance with nature and morality. It outlines key principles like laws being derived from human reasoning and conscience. Positivism holds that only positive law established by the state is valid law, regardless of morality. Sociological theories view law as a social institution that should be interpreted in its social context to benefit society. Law is studied as a means of social control and problem-solving.
This lecture introduces key concepts of the Canadian legal system. It discusses why studying Canadian law is important, the role of law in a diverse country like Canada, and traditional theories of law. It defines important terms like constitutional monarchy, federalism, and the separation of powers among the judicial, legislative and executive branches of government. It also explains the rule of law and consensus and conflict views of how laws are made.
Roscoe Pound proposed a theory of law as social engineering. He viewed law as a tool for balancing competing interests in society, similar to how engineers design products. Pound argued law should balance individual interests, public interests, and social interests to minimize conflict and maximize happiness. He outlined five "jural postulates" of interests that law should protect, such as protection from aggression and securing property. While Pound's theory aimed to adapt law to social needs, critics argue terms like "friction" are too mechanistic and it overlooks important personal freedoms. Overall, Pound advocated a functional approach where law evolves with society.
This document provides information about a law course assignment on law as an agency of social control. It includes the student's details, topic, and contents. The introduction discusses how social order requires conformity to laws and norms. There are formal agencies like laws and informal agencies like customs that control behavior. As societies progressed, customs gave way to codified laws enacted by the state. The document then discusses the meaning of law, differences between customs and laws, and how law acts as a formal system of rules to maintain order in modern complex societies. It provides examples of laws regulating activities like marriage, food, and smoking. The conclusion states that law exercises great control over behavior and is important for social control.
This document discusses the various sources of law. It identifies several formal and material sources of law. Formal sources include legislation, judicial precedent, and custom - which are authoritative sources that laws derive their validity from. Material sources are those that provide the substance or content of laws, and include historical sources like writings and unpublished works, as well as legal sources like legislation, precedent, and custom. The document also examines different classifications of sources put forth by legal theorists like Austin, Salmond and others. It notes there are debates around what should properly be considered a source of law.
The document discusses legal positivism and different types of positivism. It outlines analytical positivism as a school of thought that believes only legitimate sources of law are written rules enacted by governmental bodies. Key figures discussed include Jeremy Bentham, John Austin, H.L.A. Hart, and Hans Kelsen. Legal positivism seeks to separate law from morality and analyze it based on what the law actually states rather than what it should be.
The document discusses the nature, function, and classification of law. It defines law and distinguishes it from morality and justice. Several schools of thought on defining law are examined, including natural law, legal positivism, and Marxist theory. The functions of law in society are also outlined. Laws are classified as public or private, substantive or procedural, and international law is discussed.
This document discusses key concepts and features of law. It defines law and outlines its origins and development. It describes different types of law, including general law, foreign law, private international law, conventional law, and special laws. The sources of law are discussed, including custom, religion, judicial decisions, legislation, scientific commentaries, and equity. Salmond's classification of formal and material sources of law is also presented. Finally, the document outlines important features of law such as applicability, uniformity, and its role in establishing order in society.
This document discusses different theories of jurisprudence, beginning with natural law theory. It then covers the development of natural law from the classical period through the medieval/Christian period and Renaissance period. Key philosophers from each period and their views on natural law are described, including Aristotle, Aquinas, Locke, and Rousseau. The document also provides an overview of legal positivism and its key tenets, such as separating law from morality and viewing law as a social fact defined by its enactment rather than its ethical merits.
This document summarizes several theories of jurisprudence:
1. Natural Law Theory defines principles of right and wrong that are considered to emanate from a supreme source like God or reason. It argues that unjust laws are not true laws. Critics say the concept of morality varies over time and place.
2. Marxist theory views law as a tool for the economically dominant class to exploit the oppressed class. Marx predicted society would evolve from capitalism to perfect communism with the elimination of classes and the withering away of law and the state.
3. Stammler's Natural Law with Variable Content holds that just law aims to preserve individual freedom within society, with the criteria of just law varying over time and place.
Judicial process aims to maintain social order by resolving disputes and eliminating injustice. It has evolved gradually in India, influenced by ancient customs and the modern legal system established under British rule. The court system, from the Supreme Court downwards, uses precedents, customs and societal factors to interpret laws and ensure they align with social values. Judges play a key role in balancing stability and change, interpreting laws to address new issues while upholding established principles, thus guiding social development through a well-ordered legal framework.
The document discusses several schools of jurisprudence including analytical, historical, and natural law schools. It provides an overview of prominent legal philosophers within each school. For the analytical school, it outlines Jeremy Bentham's utilitarian philosophy and John Austin's theory that law is the command of the sovereign. It also discusses H.L.A. Hart's contribution of distinguishing between primary and secondary rules. For the historical school, it summarizes Henry Maine's theory of the progression from status to contract. It then provides brief descriptions of other schools and thinkers such as legal positivism, natural law, and sociological jurisprudence.
Introduction to english jurisprudence (1)AQSA SHAHID
Jurisprudence is the study of fundamental legal principles and their relationship to other social sciences. It is derived from the Latin terms "juris" meaning law and "prudentia" meaning knowledge. Jurisprudence has three main branches: historical jurisprudence examines the origins and development of law; analytical jurisprudence analyzes basic legal concepts and principles; and ethical jurisprudence approaches law from an ethical perspective of how it should ideally be. Jurisprudence has practical applications such as providing terminology to legislators, filling gaps in laws, and helping legal professionals better understand statutes. It also relates to other fields like sociology, psychology, economics, and politics that influence and are influenced by legal systems.
This document discusses different schools of legal thought and their classification. It covers the natural law school, historical school, sociological school, positivist/analytical school, and realist school. For each school, it provides the main reasons for their emergence, key exponents, and their definition of law. The historical school focuses on law developing through customs. The sociological school sees law as a tool for social engineering. The positivist school treats law as commands from a sovereign. And the realist school defines law as what courts declare it to be.
The document discusses the concept of jurisprudence from several perspectives:
1. Jurisprudence is defined as the study and theory of law, including the principles behind law and legal reasoning. It aims to obtain a deeper understanding of the nature of law.
2. Modern jurisprudence began in the 18th century focused on natural law, civil law, and international law. Jurisprudence can be divided based on the types of questions scholars seek to answer and different theories about how to answer them.
3. The analytical school of jurisprudence, founded by John Austin, aims to analyze the first principles of law without considering history, development or validity. It emphasizes positive law as the command of
This document provides an overview of perspectives on the function and purpose of law. It discusses law as a cultural element that reflects a society's beliefs, values, and norms. It examines the views of philosophers like Plato, Aristotle, Hobbes, and Locke on the relationship between individuals, the state, and law. Sociological perspectives from Weber and Durkheim are presented, as are consensus and conflict-based views of a society's use of law to maintain order or preserve the interests of certain groups. The document aims to introduce key theories on what law is, what role it plays in culture and society, and how it both reflects and shapes human behavior and interactions.
This document provides an overview of key concepts in law, including definitions of law, theories of law, sources of law, classifications of law, and the law of persons. It defines law and discusses natural law theory, positive law theory, Marxist law theory, and realist theory. It also covers sources of law, classifications such as public/private law and civil/criminal law. Finally, it addresses the meaning of a legal person, commencement and termination of legal personality, and capacity and incapacity of natural persons.
This document discusses the nature of law and its key components. It covers the concept of law, sources of law, and the spirit of law. For the concept of law, it describes how law establishes order and promotes justice through a set of enforceable rules. The sources of law include primary sources like legislation and constitutions, as well as secondary sources such as judicial precedent and customary law. The spirit of law refers to the underlying principles of justice, order, protection, and public interest that guide the creation and interpretation of legal rules.
Law is defined in several ways according to different philosophies and perspectives. Generally, law consists of rules imposed by a governing authority to maintain order and justice in society. There are different types of law including private law, which governs relationships between individuals, and public law, which deals with state powers and authorities. Laws originate from various sources over time, such as customs, religion, judicial precedents, and more recently, legislation passed by governing bodies. The legislative process involves bills being introduced, debated, and voted on before becoming law.
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2. What we learnt in natural school
A priori approach
Concept of divine law
Law is universal concept
Law and morality should be connected
According to salmond, just like analytical jurisprudence bears to the
systematic exposition of the legal system. Historical jurisprudence deals with
the general principles governing the origin and development of law and with
the influence that affect the law. Historical jurisprudence is the history of the
first principles and conceptions of a legal system.
3. Introduction
Historical School of Jurisprudence is one of the schools of law after Natural
Law. This law further believes that law, in general, is an outcome of years of
historical development.
some of the factors that affect this long historical development are as follows:
• Society and social customs.
• Many religious and convention principles.
• Also, the economic needs of society play a crucial role.
• Last but not the lease, the needs, and desires of the citizens.
4. The advocates of this school argued that law is not made but is advanced
from the pre-existence materials like customs and religious principles , unlike
the natural school , which believed that law originates from superior
authority or sovereignty . Thus the school does not attach importance to
relation of law to the state but give primacy to the social institutions in which
the law develops itself.
5. Characteristics of historical school
It focused on tracing the historical origins and development of legal norms,
institutions, and traditions.
Central to the Historical School was the concept of Volksgeist, which emphasized the
unique cultural, social, and historical characteristics of each nation or community.
community. Legal norms were seen as expressions of the collective consciousness or
consciousness or spirit of the people
The Historical School viewed law as an organic entity that evolves gradually over time
gradually over time in response to societal needs and values. Legal rules and
and institutions were seen as products of historical development rather than creations
than creations of legislative enactments or judicial decisions.
6. Emphasis was placed on customary law as a primary source of legal
norms. The Historical School argued that customs reflect the long-
standing traditions and practices of a society and should be respected as
valid sources of law.
The Historical School criticized the abstract and formalistic approach of
legal rationalism, which sought to derive legal principles through logical
deduction and rational analysis. Instead, it advocated for a more holistic
understanding of law grounded in historical experience.
7. jurist of historical school
Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of
understanding the legal institution was Montesquieu. He laid the foundation
of the historical school in France. According to him, it is irrelevant to discuss
whether the law is good or bad because the law depends on social, political
and environmental conditions prevailing in society. Montesquieu concluded
that the “law is the creation of the climate, local situation, accident or
imposture”. He was of the view that law must change according to changing
needs of the society. He did not establish any theory or philosophy of the
relation between the law and society. He suggested that the law should
answer the needs of the place and should change according to time, place
and needs of the people.
8. Savigny
Savigny is regarded as a father of the Historical school. He believed
that law is a pro4duct of the general consciousness of the people and
manifestation of their spirit.
According to him, law made without taking into consideration the
past historical culture and tradition of the community is likely to
create more confusion rather then solving the problems because ‘law’
is not an artificial lifeless mechanical device.’ the origin of law lies in
the spirit of the people which savigny termed as ‘Volksgeist’
9. The main tenets of savigny’s theory
Law develops like language
• Not Universally Valid: Law cannot have universal applicability or be constructed solely on rational
or eternal principles.
Sui Generis: Law is unique and has its own national character. It cannot be universally applied and
varies according to the people it governs. it varies with people, time and needs of the community.
• Discovered, Not Made: Law is discovered based on the consciousness, customs and beliefs of the
people.
Early development of law is spontaneous, jurist develop law in later stages.
Law is a continuous and unbreakable process.
Since law should always conform to popular consciousness i.e volksgeist, custom not only
precedes legislation but is superior to it.
Savigny essentially advocated that law should not be created through deliberate legislation but
should naturally arise from the collective consciousness of the people.
10. Criticism against savigny’s theory of law
Savingny’s assertion that popular consciousness is sole source of law is not
wholly true. This theory overlooks the impact of other sources of law such as
legislation, precedent etc in the evolution of law.
Savigny’s view that customs are always based on the popular consciousness is
also not acceptable. Many custom such as slavery, banded labour etc
originated to accomplish the selfish interests of those who were in power.
He did not stick to his own principle as he was promoting ancient roman law
instead of old Germanic law and custom
Prof. stone said sometimes law are made to abolish a custom or practice, like
abolition of slavery, abolition of sati system in india
11. Savigny’s contribution
Interpreted jurisprudence in terms of people’s will.
Paved way to the modern sociological approach by laying greater emphasis on
relation of law with society.
His approach to law also gave birth to comparative jurisprudence which has
been accepted as one of the most important branches of legal studies in
modern times.
12. Puchta
One of the central concepts of Puchta’s ideas was that “neither the people nor
the state alone can create and formulate laws.” He emphasised that both the
state and individuals contribute to the formation of law.
Puchta explored the duality of human will, highlighting the tension between the
general will of society and the individual will. He argued that the state’s
existence is a result of attempting to find a middle ground to resolve these
conflicts.
13.
14. Sir Henery Maine
Maine had a deep understanding of the Indian legal system because he served
as a law member in the Council of the Governor-General of India from 1861 to
1869.
Sir Hennery Maine was of the opinion that development of law and other social
institution has been on an identical pattern in almost all the ancient societies.
For ex. Hindu Roman etc.
These societies were based on patriarchal pattern. It was because of kinship,
i.e blood relationship with family that a person acquired a status. Individual
member of the family had no separate existence than his status.
15. Movement of progressive societies
Status to contract
With the passage of time, rigours of patriarchal pattern of society got diluted. As
the society developed, rights and obligations become dependent upon contract
and negotiations between individuals. This led to the emergence of contractual
relations. Now individuals caould take decision himself without depending upon
the head of family.and emergence of free society
With the passage of time, slaves also became free from bondage of masters and
became capable to have rights and duties.
16. Contract to status
Emergence of new problems: new problems of hunger, exploitation,
unemployment etc gave rise to inequalities of various kinds within the
society. Consequently, a reversal from contract to status during the lifetime
of Henery maine.
Emergence of trade unions:
The workers realized that freedom of contract between them and powerful
capitalist class led to disastrous consequences, resulting in their exploitation.
Therefore, they decided to form trade unions and labour welfare associations.
In india, many labour welfare legislations have been enacted. For ex. The
Trade Union Act, 1926, the Factories Act, 1948.
17. He described the development of law in four
stages:
• First Stage: Rulers are believed to act under divine inspiration and laws are
made based on their commands. The king’s judgment is seen as the judgment
of God and the king is an executor of divine judgments rather than a law-maker.
The judgment of the king was considered to be the judgment of God or some
divine body.
• Second Stage: The king’s commands gradually transform into customary law,
which prevails among the ruler or majority class. Custom takes precedence
over the king’s authority.
• Third Stage: The knowledge and administration of customs shift to a minority
class due to the weakening of the original law-making power. The ruler is
replaced by this minority class, which gains control over the law.
• Fourth Stage: In the final stage, the law is codified and officially promulgated.
18. Maine classified societies into two
categories:
• Static Societies: These societies do not progress beyond the era of codified laws.
They do not evolve their legal structures further.
• Progressive Societies: These societies continue to progress beyond the
codification stage. They develop their legal systems using instruments such as legal
fiction, equity and legislation.
• Legal Fiction: Legal fiction allows changes in the law to align with societal needs
without altering the letter of the law. However, it can make the law complex and
challenging to understand. For example: legal status of unborn child, company or
idol etc.
• Equity: Equity helps to address rigidity and injustice in the legal system
• Legislation: According to Maine, legislation is the most effective and desirable
method of legal change. Laws are enacted officially and become operative through
legislation.
•
19. Indian perspective
The preception of law in ancient hindu society was different from what it is
today. Law was a part of dharma which meant rightful conduct and doing
one’s acts with noble intentions.
The advent of british rule in india from 1754 brought about the decline of
dharmasastra law. The process of legislation through regulations in the initial
stage and then by statutory law, threw the age-old ancient laws into oblivion
giving place to laws based on English common law system. While enacting
different enactment, the British Government did not care for the public
opinion of the indigenous people.
20. Post independence scenario
The Indian independence brought in its wake a new era in the development of
Indian jurisprudence with emphasis on justice, equality, liberty and individual
freedoms and rights.
The preamble to the Constitution along with the chapters on fundamental
rights, duties and DPSP constitutes the core of Indian philosophy. Secularism as
a positive concept implies complete tolerance, impartiality and equal
protection of the interests of all religion.