Unit II – Schools of Jurisprudence

•       2.1  Analytical School

◦        2.1.1  Bentham’s views on ‘Law’ and Legal Positivism

◦        2.1.2  Austin’s Analytical Positivism

◦        2.1.3  Hart’s views on Law and morality

◦        2.1.4  Kelson’s theory of Pure Science of Law

◦        2.1.5  Analytical Positivism – Indian Perspective

•       2.2  Historical School

◦        2.2.1  Savigny’s theory

◦        2.2.2  Sir Henry Maine’s theory

◦        2.2.3  Indian Perspective

 

2.1 Analytical School (The “As-Is” School)

The “Plain English” Intro

This school treats law as a self-contained system of logic. It ignores morality and history, focusing strictly on the law as it exists on the paper today (Positivism).

Day-to-Day Analogy

Think of a Calculator. If you press $2 + 2$, it gives you $4$. The calculator doesn’t care if you are a good person or if the math is “fair”—it only cares about the Command (input) and the Result (output) based on the rules of its programming.

The Legal Backbone (Key Thinkers)

Jurist	Theory Name	What it says in Simple Terms
Jeremy Bentham	Utilitarianism	Law should aim for the “Greatest happiness of the greatest number.”
John Austin	Command Theory	Law is the command of a Sovereign, backed by a Sanction (punishment).
H.L.A. Hart	Primary & Secondary Rules	Law is a union of rules for behavior and rules for changing those rules.
Hans Kelsen	Pure Theory of Law	Law is a hierarchy of “norms” starting from a basic Grundnorm.

The “Checklist” (Essentials)

To identify an Analytical approach:

• Sovereign: There must be a clear authority (like Parliament).
• Command: The rule must be mandatory.
• Sanction: There must be a penalty for breaking it.
• Separation: Law is separate from Morality (Law is law, even if it’s “bad”).

Landmark Case Laws

• A.K. Gopalan v. State of Madras
  • The Conflict: A politician was detained under a law that didn’t seem “fair” or follow natural justice.
  • The Verdict: The Supreme Court initially took an Analytical view. They said as long as the “Procedure was established by Law” (the command was clear), the court wouldn’t look at the morality of the law.

Comparison Table: Austin vs. Hart

Feature	Austin	Hart
View of Law	A Command (Gunman situation).	A System of Social Rules.
Sanction	Essential (No punishment = No law).	Not the only reason people obey law.
Key Element	The Sovereign.	The Rule of Recognition.

2.2 Historical School (The “Evolution” School)

The “Plain English” Intro

This school believes law is not “made” by a king, but “found” in the habits and history of the people. It grows naturally over centuries, just like language.

Day-to-Day Analogy

Think of a Language like Hindi or English. No king sat down and “ordered” everyone to use certain words. Instead, the language evolved over time through common usage. The Historical School says Law works exactly the same way.

The Legal Backbone (Key Thinkers)

Jurist	Theory Name	What it says in Simple Terms
Friedrich von Savigny	Volksgeist	Law is the “Spirit of the People.” It cannot be imported from outside.
Sir Henry Maine	Status to Contract	Progressive societies move from fixed roles (Status) to free agreements (Contract).

The “Checklist” (Essentials)

To identify a Historical approach:

• Custom: Long-standing practices are the primary source of law.
• Organic Growth: Law changes slowly as society changes.
• Anti-Codification: (Savigny’s view) Law shouldn’t be frozen into codes too early.
• Volksgeist: The collective consciousness of the people.

Landmark Case Laws

• Shayara Bano v. Union of India (Triple Talaq Case)
  • The Conflict: Challenging a long-standing religious custom.
  • The Verdict: While the court struck it down, the debate centered on whether the custom was an essential part of the “Spirit of the People” or an outdated practice. This shows the Historical School’s influence on modern Indian law.

Visual Flowchart Description

1. People practice a Custom $\rightarrow$ 2. Custom becomes a Social Habit $\rightarrow$ 3. Habit becomes a Legal Rule $\rightarrow$ 4. Legislature eventually recognizes the Rule.

2.1.5 & 2.2.3 Indian Perspective (The Synthesis)

The “Plain English” Intro

India uses a mix. We use Analytical methods (The Constitution is our Sovereign/Grundnorm) but respect Historical roots (Personal laws for Hindus/Muslims based on ancient customs).

Comparison Table: Analytical vs. Historical (The Exam Favorite)

Feature	Analytical School	Historical School
Origin of Law	Created by the Sovereign (State).	Found in the Spirit of People (Custom).
Focus	Current Law (Lex Lata).	Past Law and its Evolution.
Key Tool	Logic and Legislation.	History and Tradition.
Analogy	Law is a “Machine.”	Law is an “Organism.”

Exam “Golden Key”

“Law is not a ‘set of rules’ but a ‘social process’ deeply rooted in the history of the soul of the people.”

Use this to bridge the gap between Savigny and modern Indian legislation.