THE LEGAL SPOT

Historical School of Law

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Savigny is the main proponent of the historical school of law. According to this school, the real source of law lies deep in the minds of man and is directly related to the life of the community. Law was evolved through a slow process and is the product of the nation’s genius. According to Savigny ‘law was the reflection of the spirit of the people who evolved it and this spirit he called it as ‘Volksgeist’ which according to him, is the standard by which laws are to be justified. The historical school asserted that the essential prerequisite to the reform of law is the deep knowledge of history. To understand the present reforms knowledge and research of history was essential. While upholding the historical aspect of law Savigny went a step further to hold the view that custom was superior to legislation. According to Puchta, a disciple of Savigny, ‘law grows with the growth and strengthens with the strength of the people and finally dies as the nation loses its nationality’.

Henry Maine was the greatest tenets of the historical school in

England

. According to him, the existed four stages of legal development in an aggressive society. First, there was the law making by the personal command which was believed to be inspired by the divine will. Second, these commands crystallized into customs and third, the ruler being superceded by a minority, consequently obtain control over the law and finally, the revolt of the majority against the monopoly of the oligarchy and the subsequent publication of law in the form of a code.

However, progressive societies develop law by legal fiction, equity and legislation. While legal fiction ensures the adaptability of law, equity has the power to supercede law in certain circumstances. Legislation is the direct making of law by the state authorities. Thus while in aggressive societies status determined the legal conditions, in a progressive society, the individual free will determined the legal condition of the individual. Hence Maine has correctly observed that ‘The movement of the progressive society has hitherto been a movement from status to contract’.

Criticism The concept of ‘Volksgeist’ received criticism from many angles. The reception of the English law in many parts of the world, the transplantation of the roman law in Europe to name a few, were incidences that challenged the concept of ‘Volksgeist’ by asserting that law was not just the result of popular consciousness. Moreover, slavery which was the result of the convenience of the ruling oligarchy was not the result of any popular consciousness. In spite of the shortcomings, the historical school paved a significant path towards the historical study of law and legal institutions.

Economic Approach to Law

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Economic approach towards law surmounts around the will of a rational human being in a situation of unequal distribution off commodities. One of the proponents of this approach is Marx. According to him the unequal distribution of commodity split the community into a different classes based on capital and labor. Thus value was affixed to commodities which were the cost of labor required to produce them. Thus emerged state, which was the instrument of the stronger class. Thus the majority of the labor community came to be ruled by a minority which controlled the economic resources of the country. Law at their hands was an instrument by which these minorities exploited the working class. The exploitation led to tension between the ruling class and the workmen and eventually resulted in a revolt of majority against minority. According to the economic approach the ultimate result would be the majority gaining control of economic resources and eliminating the minority that will lead to a classless society. Domination will cease, inequality will vanish and eventually the state and the superstructure in the form of law will disappear.

Marxist theory formulated law into four doctrines Doctrine of economic determination of law : According to this law is a superstructure in an economic system.
Doctrine of Class character of law : Law is an instrument used by the rulers to keep the masses in subjugation. It is thus an instrument of domination.
Doctrine of identity of law and state : As soon as there comes into existence the unequal distribution of commodities, state comes into being with the subsequent development of class distinctions. Law in a capitalist society was a means to preserve and increase power thus making it an embodiment of compulsion and domination.
Doctrine of withering away of law and state: According to this doctrine, on the establishment of a classless or communist society domination and inequality will vanish thus taking away with it the concept of state and law.

CRITICISM
The main critics of this approach point out that law has been considered only as a means of domination oppression and desolation. Law is reduced to the concept of an instrument at the hands of the ruling clause to attain dominance. The other functions like regulation, coercion as in the case of criminal law, preserving security and moral standards and as a means of restraining oppression by classes of individuals has been overlooked. Law represents the values and perspectives that are fundamental to the societal order. Thus it is not merely an instrument of oppression. The whole concept of economic approach derives its energy from the behavior of a rational man in a society where commodities are unequally distributed. He is different from a reasonable man and will seek to maximize his own self interest with no concern or limited concern for his fellow beings.

Sociological Approach to Law

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A sociological jurist inquires into the circumstances in which a law arise and its relation to justice. It examines the interaction between law and society. The Most famous proponent of the sociological approach to law is Roscoe Pound. He is also called the father of the modern sociological jurisprudence. He put forward his famous theory of social engineering. According to this theory, the aim of social engineering is to build up a society with the satisfaction of the wants of the majority with the least waste and friction. He classified interests as individual, public and social for the purpose of securing a legal order. It is for the law to determine the interests that are to be protected by demarcation, acknowledgement and delimitation. Some of the individual interest that demands protection is personality, relationship, property, employment, contractual freedom etc. Political interests are those claims associated with the title of a politically organized society which include the integrity, freedom of action, and honor of the state personality. Social interest include general interest of the society like the health, safety, peace and order, interest in general morals, conservation of social resources, general progress of the society and so on.

According to Pound, law is an attempt to reconcile, harmonize or compromise overlapping or conflicting interests. Law is thus a set of rules, principles, doctrines, conceptions and standards towards which a civilized society will commit no intentional aggression.

According to Bentham, ‘public good ought to be the object of the legislator, general utility ought to be the foundation of his reasoning’. The principal of utility promotes the happiness of the society by inculcating pleasure and offering security against pain. Hence legislation should aim at the pleasure of the society at large by providing abundance, subsistence, equality of opportunity and security for all.

Ehrlich viewed law on the basis of its impact on the various aspects of the society. He thus formulated his living law theory. As for his approach only a few comes before the court for derogations of law in their societal life. According to this theory lawmakers is to keep the formal law in pace with the living law of the society. The living law of every society lies within the society itself.

Another proponent of this school, Ihering considered law as a part of human conduct and thus is an instrument for serving the needs of the society. Law according to him is the ‘sum of the conditions of social life in the widest sense of the term as secured by the power of the state through the means of external compulsion’.

Duguit, is a known for his ‘principle of social solidarity’. According to this theory, an institution should be judged by the contribution it makes towards the societal solidarity. He went a step ahead by stating that the society can revolt when the state cease to further the cause of social solidarity.

Natural Law Theory

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According to this theory ‘the laws of nature is that portion of morality which supplies the most important and universal rules for the governance of the outward acts of mankind’. The basic tenets of the natural law school are that law is related to justice, reason, human nature and ethics. Rules of human conduct emanate from the supreme authority like God and are binding on all men everywhere. It upholds equality for all men and is opposed to written law. According to this school, man is a part of nature and law is the product of human and reason with a purpose to elevate and ennoble human personality. Hence, human reasoning which was the embodiment of the divine will paved way for the discovery of the perfect law. Aristotle declared that the natural law is inherent in the nature off man himself. The Romans upheld natural law as universal law. Accepting the superiority of natural law, jus naturale, they developed a code Jus Gentium that subsequently became the foundation of many legal systems in the world.

Church and Natural Law
In the medieval period, the church asserted that Christian preachings were the embodiment often natural law. Consequently, the church could intervene with the state law if it was contrary to the law of God. St.Thomas Aquinas, the main proponent of this era classified and distinguished law into four categories. The first, the divine law, though supreme is inaccessible to men. That part of it that is intelligible to men is called eternal law. The third, the natural law, is a part of the divine law and reveals itself through natural reasoning. The fourth is human law that must conform to natural and eternal law. According to him, ‘the law of nature of is to conform to reason and reason has the manifest of religion’. Hence positive law must not conflict with natural law and in contrary cases the impugned law does not bind the conscience of the subject.

The Decline and Revival of Natural Law The renaissance, the reformation and the rise of national states resulted in the weakening of the natural law principles. The supremacy as the church disappeared and liberty of individuals became the subject matter of political philosophy. But the increasing complex problems of the nineteenth century, like the decline in social and economic stability, expansion in government activity, growing social inequalities etc. demanded a realistic and practical approach. The beginning of the twentieth century thus saw the revival of the natural law theories. The modern natural law theory rejected the concept of immutability, eternality, and universality of the old natural law theory and proclaimed the idea of relativity. It laid emphasis on the idea us of sanctity of obligations, duty to repair unlawful harm and respect for authority.

Role of Natural Law in the Development of International Law
The development of international law can be stated as the outcome of the natural law theory. Hugo Grotius, who is called the farther of the international law propounded that the desire of man to live in a peaceful society compels him to observe certain rules of conduct that are inspired by the intelligent reason constituted by the rudiments of natural law. These rules are common to mankind and not applicable to the rulers as well. The society of rulers is called the society of nations and hence the law of the nations is the law of the nature applied to the nations.

Legal Positivism

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According to this theory, law is the product of the state and is the conscious outcome of the efforts of the lawmakers. This theory envisages the move of the society from a priori method as envisaged in the natural law to a posteriori method. Statutes became the main source of law. Thus positive law constituted those juridical norms that had been established by the authorities of the state. This approach separates law from ethics and social policy. Justice, according to this view is the observance off rules laid down by the state.

Positivism, according to Friedmann, can be classified as analytical and pragmatic. Analytical positivists uphold law as the command of political authority whose force is independent of any moral virtues, historical origin or social milieus. Pragmatism treats law as the result of social facts and forces. John Austin is a well known representative of analytical positivism. According to the imperative theory formulated by Austin, law is the command of the sovereign. Command is characterized by the elements of duty, right and sanction in case of disobedience. ‘Sovereign’ is a person or a body of persons who enjoys the supreme power in an independent political society. According to Austin, ‘if a determinate human superior not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society’. The three essential characteristics of sovereignty is that it is essential in every state, is indivisible and is bestowed with unlimited an illimitable power. In the absence of sovereignty no state can have a political existence in itself. According to a Austin, the law propounded by the judiciary are the tacit commands of the sovereign. There had been many criticisms raised to Austin’s imperative theory. The positivist propagated the law as it is and not as what it ought to be.

According to another prominent author of the analytical positivism, Hart, laws are commands of human beings. The analysis of legal concepts must be distinguished from historical and sociological inquiries and criticism or appraisal of law. Law is separated from morals. According to him, a legal system is a closes system whereby deduction of legal decisions is possible by logical means from predetermined or known legal rules without reference to policies, social facets or morality. Recognition and social obedience are the essential characteristics of a legal norm. He identifies two kinds of legal rules, the primary and the secondary. A primary rule lays down duties while the secondary embodies the rules of recognition of the primary rules and creates power. In a legal system the rules which are that valid according to the systems ultimate rule of recognition must be generally obeyed. The rules of recognition in any legal system establish the supreme source of authority for legal validity.

Pure Theory of Law

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Kelson developed the pure theory of law. According to him the theory of law should be uniformly applicable in all places and at all times. It must be free from politics, ethics, sociology, history and so on. According to keelson, ‘the principal according to which the natural science describes its object is causality and the principal according to which the science of law describes its object is normativity. Law consists of a mass of heterogeneous rules and the theory of law organizes these rules into a single ordered pattern. Law, according to him is ‘a system of coercion imposing norms which are laid down by human acts in accordance with a constitution the validity of which is presupposed if it is on the whole efficacious’.

In the hierarchy of norms which constitute the law, the validity of a norm is to be derived from other norms standing behind it and imparting validity to it. In a legal order the hierarchy of norms can be traced back to an initial, basic or fundamental norm on which the validity of the others ultimately rests. This basic or fundamental norm is called the Grundnorm. Kelson distinguished the Grundnorm from the constitution by state thing that the Grundnorm only imparts validity to the constitution and all other norms derived from it, but does not dictate its content. The function of the Grundnorm is to validate the rest of the legal system. There must not be a total disregard of the Grundnorm also there need not be universal adherence to it. When a Grundnorm fails for a minimum support other propositions that obtain support will replace it. This is the cause of revolution in the field of law.

State is viewed by Kelson as a system of human behavior and as an order of social compulsion and law is the normative ordering of human behavior backed by a force that makes the use of force a monopoly of the community. The idea of concretization, the process by which norms get more and more specific was developed by a Kelson. Procedural laws gained importance in his theory. He considered the legal order as a normative structure that provides for sanctions for certain forms of human behavior.