The Science of Jurisprudence

The Historical School of Jurisprudence

1. The task of the historical school is to deal with the general

principles governing the origin and development of law and with
the influences that affect the law.

2. The school points out to the history of the principles and

conceptions of the legal system.

3. From this school of Jurisprudence, one can know the origin,

sources and development of law, together with the origin and
development of different societies

4. The historical school of jurisprudence is a school of thought

that believes that law is made from people according to their
changing needs. It emphasizes the importance of customs,
habits, and traditions as the main sources of law

5. Sir Henry Maine regarded Montesquieu as the first jurist of

this school, and his book 'Esprit des Lois' (Spirit of the Laws)
made a significant contribution to human knowledge.
Montesquieu believed that all laws should be based on
historical observations. However, one criticism of his work is
that he placed too much importance on accidental and external
factors when framing laws, overlooking the importance of
human nature and race in shaping and developing the law.
Despite this flaw, Montesquieu's contributions to this school
are noteworthy because subsequent jurists utilized his
observations and approached the problem from a more
accurate perspective.

6. The German Historical School, following an empirical approach,

believed that laws aren't merely the result of legislation or
commands. Instead, they develop from the habits and ways of
the people themselves. When a rule or command is followed by
a community for a long time, it becomes a recognized habit and
turns into law. The German School compared law to language, as
both grow and change with a nation.

7. According to Savigny, who belonged to the German Historical

School, law develops organically alongside the life and
character of a people. It evolves with time, similar to how
language does. There's no rest in the law; it's always in motion
and developing. Law is governed by the same internal necessity
that governs natural phenomena. It grows with a nation,
expands alongside it, and disappears upon its dissolution. Law,
in essence, reflects the ingenuity of the people.

8. James Carter, an American jurist, argued that law existed

even before people had a clear understanding of politics. He
believed that law is deeply rooted in customs and traditions
and cannot be created or changed by people. The Historical
School emphasizes the importance of history and customs in
understanding the law. However, some critics argue that it
confuses customs with laws.

9. In Conclusion, the historical school of jurisprudence is about

studying how laws are made and change over time. It looks at
the history of legal systems and believes that laws should be
based on historical observations. Montesquieu, considered the
first jurist of this school, emphasized the significance of
historical observations in framing laws, although he may have
given excessive importance to external factors. The German
Historical School highlighted that laws develop from the habits
and ways of the people themselves, similar to how language
evolves. Law reflects the characteristics of a nation and grows
alongside it.
The Sociological School of jurisprudence

1. The sociological school of jurisprudence is a relatively

modern approach to the study of law that focuses on
understanding the impact of law on individuals within
society. It emphasizes the examination of law as a social
phenomenon and explores how it affects people in civilized
societies. Sociology, which involves studying human beings in
the context of society, plays a crucial role in influencing the
legal system of a particular country.

2. Sociological jurisprudence goes beyond the traditional

understanding of law from a lawyer's perspective and
instead examines how law actually governs the behavior of
ordinary citizens. It involves studying the social
consequences of law and observing sociological phenomena
related to legal systems.

3. One notable figure in the sociological school of

jurisprudence is Roscoe Pound, who made significant
contributions to the field. Pound focused on the branch of
sociological jurisprudence known as criminology, which
involves studying crime and its various aspects. He examined
the mind of the criminal, the causes of crime, the potential
remedies for crime, and the effects of punishment. Pound's
work shed light on the broader social implications of criminal
behaviour and the role of law in addressing these issues.
4. Overall, the sociological school of jurisprudence, with the
contributions of scholars like Roscoe Pound, has deepened
our understanding of how law interacts with society. It
recognizes the need to consider the social consequences of
legal systems and provides valuable insights into the study
of crime and its societal impact.
Write Short note on : law and morality

1. Law and morality are two interconnected concepts that

govern human conduct and behaviour. Ethics, the science of
human conduct, plays a crucial role in understanding the
relationship between the two.

2. Morality refers to the principles and values that guide

individuals in determining what is right or wrong. It
encompasses the ideal moral code, which is based on natural
law, and the positive moral code, which deals with actual
conduct in society. Public opinion also influences what is
considered good or proper human behavior, but it can vary
across different places, times, and people. Therefore,
morality can change over time as society evolves.

3. On the other hand, law is a set of rules and regulations

established by the state or governing authority to maintain
order and regulate behavior in society. Jurisprudence is the
study of law and its connection to morality. It recognizes
that positive ethics, which includes ethical opinions and
standards of conduct, can be reflected in laws. However, not
all ethical rules of conduct are necessarily considered
crimes under the legal system.

4. Positive morality, which requires a coercive influence to

uphold public conscience, relies on law as an instrument for
enforcement. Law enforcement agencies, courts, judges, and
punishment systems play a role in promoting certain ethical
conduct. Legislation should be based on ethical principles
and should not be divorced from human values. A good law is
one that aligns with sound ethical principles and reflects the
higher and nobler values for life.

5. It is essential for jurists to be familiar with ethics because

they need to evaluate and criticize laws based on ethical
considerations. Laws are meant to regulate present human
conduct and serve the greater good of society. They provide
a framework to balance individual requirements with societal
needs. Understanding the relationship between ethics and
jurisprudence helps in comprehending a country's culture,
ideology, and the depth of its positive ethics reflected in its
laws.

Feminist Jurisprudence
1. Feminist jurisprudence refers to a legal perspective that
focuses on the rights and experiences of women,
highlighting the historical discrimination they faced in
various societies.

2. In the past, women were denied opportunities to become

lawyers and doctors simply because of their gender. They
were also subjected to perpetual tutelage under Roman
Law, where a woman needed a guardian's consent to
manage her property. Similar limitations existed in
England until the Married Women's Property Act granted
women their proprietary rights and the power to choose
their domicile.

3. Even under Hindu Law, only male children had inheritance

rights in joint families, but this changed with recent
amendments to include girls as coparceners. Recognizing
the need for gender equality, the Constitution of India
guarantees fundamental rights to all individuals,
irrespective of their sex, prohibiting discrimination based
on gender.

4. Feminist jurisprudence advocates for equal rights and

opportunities for women, challenging discriminatory laws
and practices. It seeks to promote gender equality by
examining and critiquing existing legal systems from a
feminist perspective. The passage highlights the efforts
made towards women's empowerment, such as the
Women's Reservation Bill in India, which aimed to secure
a mandatory 33% reservation for women in Parliament.
However, despite these advancements, there is still
progress to be made in achieving full gender equality.

Define Jurisprudence.
 Jurisprudence is a subject which materially differs from
other branches of law to be found in a legal syllabus.
Most other legal subjects involve a study of legal
principles, which are then to be applied to concrete,
practical situations. In Jurisprudence, the task at hand is
not to derive laws from authorities, and apply them to
given problems; rather, the concern is to reflect on the
nature of legal rules and on the true meaning of legal
concepts.

What is Jurisprudence.

 Jurisprudence is thus 'the study of fundamental legal

principles'. "Juris" in Latin signifies legal, and "prudentia"
means skill or knowledge. Thus, in a very wide sense, the
term connotes the basic knowledge of law. Holland
describes Jurisprudence as "the formal science of
positive law", and Allen as "the scientific synthesis of the
essential principles of law"
What is Analytical Jurisprudence?

 Analytical Jurisprudence deals with the present. Its

purpose is to analyse the first principles of the law as
they exists in a legal system.

State the main contribution of the Analytical school of

Jurisprudence.

 Clear distinction between positive law and ideal law: The

analytical school has emphasized the separation between
positive law (the law as it exists in practice) and ideal law
(the law as it should be). This distinction allows for a
thorough analysis of civil law and its relationship with
other forms of law.
 According to the analytical school, all positive law can be
traced back to a clearly identifiable law-giver, such as a
sovereign authority. This approach helps in understanding
the origin and basis of the laws in a given legal system.

What is “Law” according to the historical school?

 According to the historical school of jurisprudence,

"law" refers to the general principles, origins, and
development of legal systems. This school emphasizes
studying the historical context of law, including the
first principles and conceptions that shaped legal
systems. It also explores the influences and factors
that have impacted the development of law and the
societies in which it has evolved.

State two benefits of the study of jurisprudence.

 Understanding fundamental principles: Jurisprudence

helps in comprehending the fundamental principles
shared by all legal systems, which, in turn, enhances
the understanding of a specific legal system.
 Informing legislation and advocacy: Jurisprudence
provides essential knowledge of the principles that
society adopts to regulate relationships between
individuals.