Jurisprudence in Gist

Topics: Law, Jurisprudence, Natural law Pages: 8 (1826 words) Published: May 15, 2013

Natural School of Jurisprudence

World and the living beings are the creation of the god and law is a voice of the god transferred to human for the better life is the theme of the natural philosophy. Guided by natural philosophy Scholars framed that law are not made but granted by God for human benefit in form of morality, equality, equity, fairness, justice, fraternity, rule of law, check and balance, separation of power and righteous conduct of the human being termed as “Natural Law”.

Natural law means the law that is largely unwritten and consists of principles of ought as revealed by human nature or reason or derived from God.

Hearaclitus, Socrates, Plato, Aristolte and Cicero represent the Ancient Naturalism

St. Augustine & St. Thomas Aquinas and Immanual Kant represent Medieval Naturalism

Hugo Grotius, Thomas Hobbes, John Locke and J. Rousseau represent Renaissance period

Rudolf Stambler, John Rawls, Finnis and Lion Fuller represent Modern Naturalism

Natural law came under attack in 18th and 19th centuries with the development of secularism and rationalism and its revival took place in the 20th century which has occupied a pervasive role in the realm of ethics, politics and law in the form of school of neo-scholastic by Stammler, Kohler and Radbruch.

HLA Hart attempted to restate a natural law position from the semi-sociological point of view.

Natural Law was refuted by Vicco, Alder, Ross, Herder, Montesquieu, Hume, Adam Smith, Ferguson, Miller, J Carnap and Ayer.

Analytical School of Jurisprudence

Concept of the authority and state came into existence with the development of the human civilization and law was treated as the order of the supreme authority with good morals, competence and will to decide in the favor of greatest happiness for the greatest number, creating the analytical school of jurisprudence.

Jeremy Bentham regarded as the founder and John Austin as the father of the analytical or positivist thought.

Bentham’s legal philosophy is called utilitarianism, individualism. According to him, the objective of legislation is the “greatest happiness for the greatest number.”

Contributors of the utilitarian theory are Thomas Hobbes, John Locke, John Stuart Mill, David Hume, Priestly, Hucheon and Parley

John Austin recognized the reality of the enforcement of law and laid the view that the law is the set of the commands framed by the supreme authority to regulate the society/area under its jurisdiction of control.

As per the Austin – “Law is the command of the sovereign issued to the political inferior which habitually obeyed by bulk of them and sovereign obey to anyone”.

Austin approach was adopted by Thomas Erskine Holland and Hans Kelsen and was regarded as the prominent exponent.

Contemporary jurists to this approach were Herbert Hart, Ronald Dworkin, John Rawls and Nozick

Herbert Lionel Adolphus Hart description of a legal system in terms of a union of primary and secondary rule provides a tool of analysis for much that has puzzled both the legal and political theorists. Hart defines primary rules as duty imposing and secondary rule as the power conferring rules.

Harts analysis was criticized by Lon Fuller, Eonald Dworkin, Lord Devlin and David Lyons.

Historical School of Jurisprudence

Karl Von Savingy lit the fire and chanted the slogan that law is the creation of the history and has been developed to the today’s form with the historical base.

This approach resembles the saying that “We recognize the existence of god only as the follower of the practice of our ancestor “who recognized the god” as in hereditary transfer of character.” In the same way law passes from generation to generation with some transformation, however, its origin lies in history.

Historical jurisprudence attempts to examine the manner, circumstances and factors responsible for the growth of law and interprets and exposes the...
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