Nature and meaning of law and jurisprudence
Law is a body of rules, made or recognised by the state, that guide behaviour and are backed by enforcement (courts, police, fines). It is general (for everyone), binding and enforceable.
Jurisprudence comes from the Latin juris prudentia, "knowledge of law". It is the theory and philosophy of law. It asks: What makes a rule a law? How is law linked to morality, justice and society? Why should we obey?
History of law
- Ancient codes: around 1750 BCE, a king in Mesopotamia had laws carved on a stone pillar (the Code of Hammurabi), with fixed punishments.
- India: the Dharmashastras (like the Manusmriti and Yajnavalkya Smriti) and later the Arthashastra described duties, crimes, contracts and courts. Custom (achara) was an important source.
- Rome: the Twelve Tables (about 450 BCE) and later Justinian's code shaped European civil law.
- England: the Magna Carta (1215) limited the king; common law grew from judges' decisions.
- Modern era: written constitutions, codes and international law (from the 1700s onward), and human rights after 1945.
Schools of law
Natural law school
There is a higher, universal standard of right and wrong (from nature, reason or God). Human law is valid only if it agrees with it. Thinkers: Aristotle, Cicero, Thomas Aquinas, John Locke. Human rights ideas come partly from here.
Positivist (analytical) school
Law is what a proper authority lays down, whether or not it is moral. John Austin: law is a command of the sovereign backed by a sanction. H. L. A. Hart: law is a system of primary rules (duties) and secondary rules (how rules are made and changed). Hans Kelsen: a pyramid of norms resting on a basic norm (Grundnorm).
Historical school
Friedrich Carl von Savigny: law grows from the Volksgeist, the spirit and customs of a people; it is found, not made. Henry Maine: societies move "from status to contract".
Sociological school
Law should be studied in action, in society. Roscoe Pound: law is social engineering, balancing individual, public and social interests. Eugen Ehrlich: "living law" lies in society's own rules.
Realist school
Law is what courts actually do. Oliver Wendell Holmes: law is a prediction of what judges will decide.
Function and purpose of law
- Keep order and peace: clear rules prevent conflict.
- Settle disputes peacefully through courts.
- Protect rights and freedoms, especially of weaker people.
- Deliver justice: fair treatment and remedies.
- Limit power: government is also under law (rule of law).
- Guide social change: laws against untouchability, child marriage or discrimination change society.
Different schools stress different purposes: natural law stresses justice, positivism certainty, the sociological school social welfare.
Key formulas and definitions
- Jurisprudence = study/philosophy of law (juris prudentia)
- Natural law: law ought to match right and wrong
- Positivism (Austin): law = sovereign's command + sanction
- Historical (Savigny): law grows from Volksgeist (custom)
- Sociological (Pound): law = social engineering
- Realism (Holmes): law = what courts do
Worked examples
1. A citizen says, "This law allowing slavery was never real law." Which school?
Natural law: a law that goes badly against justice is not truly law.
2. A judge says, "I may dislike this Act, but Parliament passed it properly, so I must apply it." Which school?
Positivist: the law is valid because of its source, not its moral content.
3. A government passes a minimum wage law to balance workers' and employers' interests. Which school explains this best?
Sociological school (Pound): law as social engineering balancing interests.
Common mistakes
- Thinking jurisprudence is one particular law. It is the study of law in general.
- Saying positivists think laws should be immoral. They only say legal validity is separate from morality.
- Mixing up historical (custom grows) and sociological (law balances interests) schools.
- Thinking only one school is "right". Each explains a part of law.