Kinds and Schools of Jurisprudence

Imagine five people describing the same river. A hydrologist measures its flow, a historian traces how it carved its valley, a farmer asks what it does for his fields, an environmentalist asks what it ought to be protected from, and a map-maker draws its structure. None is wrong. Each has asked a different question. The schools of jurisprudence are like that. Each looks at the same thing, law, but asks a different question about it: what it is, where it came from, what it does, or what it ought to be. Learn each school by its question, and the names and details will fall into place.

Figure: How jurisprudence divides: by reach into general and particular, and by method into the six classic schools

1. Kinds of Jurisprudence by Reach

Austin divided jurisprudence into general and particular. General jurisprudence is, in his words, the science concerned with the exposition of the principles, notions and distinctions common to systems of law, meaning 'the ampler and maturer systems' which are the most instructive. Its subjects are concepts such as duty, right, sanction and sovereignty, found in every developed system. Particular jurisprudence is the science of one actual system, or of some part of it, such as the law of England. Holland attacked the second category. Jurisprudence, he said, is a formal science of general principles; the rules of a given country are only its material, and so there can be no separate 'particular jurisprudence'. (Do not confuse Austin's pair with Salmond's generic and specific senses of the word, explained in Note 1.)

Other common classifications are: expository against censorial jurisprudence (Bentham: law as it is against law as it ought to be); and analytical, historical and ethical jurisprudence (Salmond's three branches of jurisprudence in the specific sense).

2. The Schools at a Glance

3. The Six Classic Schools Explained

Natural law school

The oldest school holds that there is a higher law, discoverable by reason, which is universal and unchanging and against which human law is measured. It runs from the Greeks and Stoics, through Cicero and Aquinas, to Grotius and the social contract thinkers (Hobbes, Locke, Rousseau). It declined in the nineteenth century under the attack of positivism and revived in the twentieth, notably with Stammler's 'natural law with a variable content', Fuller's inner morality of law and Finnis's basic goods. See Note 9.

Analytical or positivist school

This school studies law as it is, not as it ought to be, and keeps law separate from morality. Bentham laid its foundation with his utilitarian command theory, and Austin gave it classic form: law is the command of the sovereign backed by a sanction. It is called 'analytical' because it analyses legal concepts, and 'imperative' because of the command theory. Kelsen's pure theory and Hart's concept of law are its twentieth-century forms. Austin is called the father of the analytical school and the father of English jurisprudence. See Notes 11 and 12.

Historical school

A reaction against both natural law and codification, the historical school holds that law is not made but found. It grows silently out of the custom and common consciousness of a people, like its language. Savigny founded it in 1814 in his pamphlet against Thibaut's proposal for a German civil code. Puchta developed it and popularised the word Volksgeist. In England, Maine turned it into a comparative and evolutionary method and found that progressive societies had moved 'from status to contract'. See Note 13.

Philosophical school

Some Indian textbooks (Paranjape, Tripathi) treat Kant and Hegel as a separate philosophical or metaphysical school. Kant saw law as the set of conditions under which the freedom of each can coexist with the freedom of all. Hegel saw law and the State as the realisation of freedom in history. Others fold these thinkers into the natural law tradition. Either placement is acceptable if explained.

Sociological school

This school studies law in action: its working and effects in society. Jhering (law as a means to social ends; the struggle for law), Ehrlich (the 'living law' of society), Duguit (social solidarity) and Pound (law as social engineering, balancing interests) are its leaders. See Note 14.

Realist school

The realists hold that the real law is not the rule in the book. American realists (Holmes, Gray, Llewellyn, Frank) find it in what courts actually do; to know the law is to predict decisions. Scandinavian realists (Hägerström, Olivecrona, Ross) treat rights and duties as psychological facts. Realism is often called the left wing of the sociological movement. See Note 15 and Note 70.

4. Merits and Criticisms of the Six Schools

No school has had the last word, and examiners reward answers that weigh each one fairly. The table gives the main merit and the main criticism of each school, which can be expanded into a paragraph of evaluation in a long answer.

5. The Modern Approaches

Since the mid-twentieth century several further approaches have joined the classic six. Marxist jurisprudence sees law as part of the superstructure serving the ruling class (Note 16). Feminist jurisprudence exposes the gender bias of supposedly neutral law (Note 17). Critical legal studies argues that law is politics and legal doctrine is indeterminate (Note 18). Economic analysis of law judges rules by their efficiency (Note 49). Dworkin's interpretive theory, law as integrity, stands between positivism and natural law (Note 19).

6. The Schools in Indian Courtrooms

Indian judges do not announce which school they belong to, and the Supreme Court has never adopted any one school as official doctrine. But particular judgments illustrate particular approaches clearly, and examiners value an Indian example for each school. Read the cases below as illustrations of a way of reasoning, not as the Court enrolling in a school.

Two lessons follow from these cases. First, the same Court can move from one approach to another over time: the shift from Gopalan (1950) to Maneka Gandhi (1978) is a shift from a strictly analytical reading of Art. 21 to one coloured by natural justice and fairness. Second, a single judgment often uses several approaches at once. Olga Tellis balances interests like a sociologist, but it also reasons from the text of Art. 21 like an analyst and from the dignity of the person like a natural lawyer. That mixture is the subject of the last section.

7. How the Schools Relate

8. Towards a Synthetic or Integrated Jurisprudence

The Indian parable of the blind men and the elephant fits the schools exactly. One man feels the trunk and says the elephant is a snake; another feels a leg and says it is a pillar; a third feels the ear and says it is a fan. Each is partly right and wholly wrong if he claims to have described the entire animal. The analytical jurist has hold of law's structure, the historical jurist of its roots, the sociologist of its effects, the natural lawyer of its values and the realist of its day-to-day operation. Synthetic or integrated jurisprudence is the attempt to see the whole elephant.

The idea has several champions. Julius Stone organised the subject into three great fields: analytical jurisprudence (the logic and concepts of law), the theories of justice (what law ought to achieve) and sociological jurisprudence (law in society), and he insisted that a full study needs all three. The American jurist Jerome Hall argued for an integrative jurisprudence that unites the study of form (the analytical concern), fact (the sociological concern) and value (the natural law concern). The schools themselves have drifted toward one another. Hart, a positivist, accepted a minimum content of natural law and called his book an essay in descriptive sociology. Fuller, a natural lawyer, grounded his inner morality of law in the practical conditions of lawmaking. Dworkin's theory asks a judge both to fit the institutional history of the law and to justify it morally, which combines the analytical, historical and ethical approaches in a single method.

Integrated jurisprudence is not a seventh school with its own doctrine; it is a method. It treats the questions of what law is, how it grew, what it does and what it ought to be as parts of one inquiry. Indian constitutional adjudication practises it constantly: the basic structure doctrine reads the text (analytical), draws on the history of the freedom movement and the Constituent Assembly (historical), weighs social consequences (sociological) and appeals to values such as dignity and liberty (natural law). For an exam, the synthetic view gives the natural conclusion to any question on the schools: each is a partial truth, and the best understanding of law uses all of them.

9. Frequently Asked Questions

Q. What are the main schools of jurisprudence?
A. The six classic schools are natural law, analytical (positivist), historical, philosophical, sociological and realist. Modern approaches include Marxist, feminist, critical legal studies and economic analysis of law.

Q. Who founded the analytical school, Bentham or Austin?
A. Both claims appear in textbooks. Bentham laid the foundations of legal positivism and the command theory; Austin gave the school its classic, systematic form and is called the father of the analytical school and of English jurisprudence.

Q. Are the schools opposed to one another?
A. They disagree, but each answers a different question about law: what it is, how it grew, what it does, what it ought to be. They are best read as complementary views of one subject.

Q. What is synthetic or integrated jurisprudence?
A. It is the view that no single school explains law fully and that the analytical, historical, sociological, ethical and realist approaches should be combined. Stone's three fields and Jerome Hall's integration of form, fact and value are its best known statements.

See also: Notes 9 and 11 to 18 (each school in detail), Notes 54 to 60 (the schools compared).