notes on Jurisprudence

1. JURISPRUDENCE
A. NATURAL LAW OF THEORY (NLT)
It has various names like moral laws, divine laws, law of God, law of reason etc.
It mainly defines principles of right and wrong.
It isthe same inall placesand bindingonall the people.Natural law isa body of laws that is derived
from law of nature which is “what naturally is, ought to be done”
Its central theme of study is “justice”
It is a rule something higher than positive law.
It means those rules and principles which are considered to have emanated from some supreme
sources (other than any political and worldly authority).
Some saysthat these rules have come from God, some find their source in nature, others says that
they are product of reason, therefore these rules have been given different names by different
jurists on the basis of their source or Divine law, Moral Law of nature, natural law, law of God etc.
The natural lawschool juristsinsistthatnosocial normcan be calledlaw unlessitsatisfiesacriterion
of intrinsicworthwhichmaybe eitherreligionorethicsormoral or social good.Otherwise there will
be no difference between the kinds of social norms which a tyrant like Hitler may law down.
Therefore satisfaction of criteria which goes to the quality of law is inherent in the idea of law
(unjust law is no law).
It isto be notedthatnatural law isnot a writtenlaw andconsistof principles of “ought” as revealed
by human nature/reason/derived from the God.
According to Salmond, “Natural or moral law means the principles of natural right and wrong.”
According to Blackstone “Natural law being co-existing with mankind and emanating from God
himself is superior to all other laws”.
It is inspired by two ideas-
a. A universal order governing all men
b. The inalienable right of the individuals
Stammler- Stammlersaysthat “All positive law isanattemptatjustlaw andthat is justice withinthe
framework of the social life. The Harmony and wills and purposes vary according to the time and
place.For the knowledgeof willsandpurpose one mustcome inactual contact of livingsocial world.
Thiswill enable the persontodifferentiate between just and unjust. The law is valid even if it does
not accordingto thisjustbut attemptshouldbe made tobringit near its aim. This concept has been
called by Stammler as a natural law with a variable content.
Kohler:He givesa newinterpretationtolegal history.He saysthat legal interpretationshouldnotbe
materialistic. The societyin the course of evolution advances morally and culturally as well. Taking
the requirementof culture intoconsiderable law can serve its purpose better. He says that there is
no eternal law.
CRITICAL APPRAISAL OF NLT
The concept hasbeenusedtosupportdifferentideologistand to support absolutism, individualism
and has even used by revolutionists to overthrow the Government.
The natural lawof principlesof justice,moralityandconsciencehave beenembodiedinvariouslegal
systems. NATURALLawbeingregulatedbylaw of nature isinevitableandobligatory,whereas,MAN-
MADE positive laws are arbitrary and contingent

2. Demerits/Criticises of NLT
1. The moral proposition,i.e.,“Oughttobe”maynot always necessarily conform to the needs
of the society
2. The concept of moralityisvaryingcontentchangingfromplace toplace. Therefore, it would
be futile to think of universal applicability of law
3. Legal disputesmaybe settledbylaw-courtsbutthe disputes relating to morality and law of
nature cannot be subjected to judicial scrutiny
4. To test, whether a particular law is “Just” or “unjust”, depends upon the principles of
morality
B. “MARXIST APPROACH ON LAW AND STATE”
COMMUNIST THEORY OF LAW/ SOVIET LEGAL THEORY (ECONOMIC APPROACH OF LAW)
Karl Heinrich Marx (Marx) was a German philosopher, economist, historian and revolutionary
socialist. The historical book “The Communist Manifesto” written by Marx got importance in the
development of socialist and communist legal theory.
Marx’s conception of history is that the nature of “the individuals depends on the material
conditions, determining their production”. What is an individual? Marx says that “Co-incides with
their production both with what and how they produced”
Marx viewed history as “Class struggle”. He says: “the history of all hitherto existing society is the
history of class struggle”. The core area of Marx’s work is that history in all existing societies is the
historyof classstruggle.Classstruggle lies atthe base of social conflict and the social and economic
development.
To illustrate intheoryof classconflict,Marx listedthe different stages of community development.
In the primitive stage of the exploitation of men by men there is slavery. There is complete
exploitation of slaves by dominant classes.
The Second Stage in the social development is the feudal system. It is based on land holding and
property. The landlord exploits the workers.
Third stage- when there is rise of a merchant middle class. It marks the beginning of a Capitalist
Society. At this stage, domination passes from feudal to capitalist.
Marx envisages/predictsthe final stage of developmentof the socialisationof society leading to the
stage of perfectcommunism, whenall capitalistsandfeudal elements have been eliminated either
by evolution and revolution.
Theories/Doctrine of the Nature of Law
1. Doctrine of the economic determination of Law- According to Marks, the totality of these
relationsof productionconstitutesthe economicstructure of society,the real foundationon
which lies legal and political structures.
2. Doctrine of the ClassCharacter of Law- Marxism considers the law as tool of exploitation. It
is an instrument in the hands of capitalists to exploit masses, the labour class.
3. Doctrine of the Identityof lawand state- The state came intoexistence assoon as there was
unequal distributionof commoditiesandclass distinctions developed. Law is the reflection
and protectorof specificmodesof production, forms of economic organisation and of class
domination.
Law is a tool which is used in order to further the end of economically dominant and
exploiting class at the expense of the proletariat i.e. the suppressed class.
4. Doctrine of withering away of law and state- According to Marx, State and the law are
temporaryphenomena.Revolutionisinevitable.Thiswill breakthe power of State, with the

3. abolitionof classes,the powerof the State woulddisappearandgovernmental functionswill
be transformed into simple one.
C. STAMMLER- NATURE LAW WITH VARIABLE CONTENT
He defineslawas“Speciesof will, self-authoritative and inviolable.” According to him, a “Just” law
was the highestexpression of man’s social life and aims at preservation of freedom of individuals.
In order to distinguish the new revived natural law from the old one, he called the former as
“Natural Law” with variable content. According to him, law of nature means “just Law” which
harmonises the purposes in the society.
The purpose isnot to protect the will of one but tounifythe purposesof all.A just law is the highest
expressionof man’ssocial activity.Itaimsis the preservation of the freedom of the individual with
the equal freedom of other individuals. As this rule will vary from place to place etc. hence, his
theory has been given the name of “NATURE LAW WITH VARIABLE CONTENT”
In orderto achieve justice,alegislature has to bear in mind the two fundamental principles were:-
Principles of respect Principles of community participation
The content of a person’s violation must not
depend upon the arbitrary will of another
A person lawfully obligated must not be
arbitrarily excluded from the community
Every legal demand can only be maintained in
such a way that the person obligated may
remain a fellow creature
Everylawful power of decision may exclude the
person affected by it from the community only
to the extent that the person may remain a
fellow creature
The new approach of natural law is concerned with the practical problems and not with abstract
ideas. It attempts to take help from new legal theories putting emphasis on societies. Among the
philosopher who gave their theories in the present century were Stammler, Kohler.
D. ROSCOE POUND’S THEORY OF SOCIAL ENGINEERING
Pound is considered to be the “father of sociological jurisprudence in America”. He concentrates
more on
 the functional aspect of law
 task of Social engineering (SE)
 SE means a balance between the competing interest in Society
 Private, Public and Social interest
 Interest as the main subject
So the meaning, interpretation and application of law take into account of social facts.
Pound’s theory is that the interests are the main subject matter of law and the task of law is the
satisfaction of human wants and desire. It is the duty of law to make a valuation of law i.e. to
select most valuable objectives of society and to secure them

4. E. SOCIAL SOLIDARITY (SOCIOLOGICAL SCHOOL AND ITS CHIEF EXPONENTS)
The chief supporters are: Duguit, Auguste Comte, Ihering, Ihrilic and Pound
Duguit- He made a distribution between two kinds of need of men in society.
1. there are common need of individuals which are satisfied by mutual assistance.
2. there are diverse needs of individuals which are satisfied by exchange of service.
Therefore, the division of labour is the most important fact of social cohesion. He named it “social
solidarity”
Augustcomte’s ‘Scientific Positivism’ - He was the first to use the term ‘Sociology’. He stressed on
the applicationof scientificmethodtothe science of sociology so that it can progress with the help
of scientific principles