Jurisprudence 2

Question-A
1. Who founded Analytical School of Jurisprudence?

 The Analytical School of Jurisprudence was founded by Jeremy Bentham.
2. What are the views given by him?

 Jeremy Bentham's views in Analytical Jurisprudence include:
1. Utilitarianism:
Law should aim to achieve "the greatest happiness for the greatest number."
2. Law as a tool of social engineering:
Law must promote public good and be evaluated by its utility.
3. Critique of Natural Law:
He rejected natural law theories as vague and subjective, advocating for clear, codified laws.
4. Legal Reforms:
He emphasized law reform, advocating for laws that reflect societal needs and maximize
welfare.
3. On what basis he was criticized by different authors?

 Jeremy Bentham was criticized on several grounds:
1. Overemphasis on Utility:
Critics argued that his focus on "utility" (greatest happiness) ignored justice and individual
rights.
2. Neglect of Moral Considerations:
He separated law from morality, which some saw as overlooking the ethical dimension of
law.
3. Simplistic View of Human Nature:
Bentham’s assumption that people always act to maximize pleasure was seen as too
simplistic and unrealistic.
4. Focus on Positive Law:
Critics like natural law theorists felt he ignored the higher principles of justice and moral
law.
NOTE:
 For more theory on Jeremy Bentham refer Page 7 of Document Jurisprudence
Question-B
1. Who were the main authors of Historical School?
 The main authors of the Historical School of Jurisprudence include:
1. Friedrich Karl von Savigny (Germany)
2. Henry Maine (England)
2. Who was the founder of Historical School?

 Friedrich Karl von Savigny is considered the founder of the Historical School of
Jurisprudence.
3. What were the views of F.K. Von Savigny?

 F.K. von Savigny stressed that law grows with the nation and should not be artificially
imposed.
 F.K. von Savigny's views in the Historical School of Jurisprudence include:
1. Law as a Product of Culture:
Law evolves organically from the customs, traditions, and spirit (Volksgeist) of the
people.
2. Opposition to Codification:
He opposed rapid codification of laws, believing that law must develop gradually with
society's historical evolution.
3. Law is not Universal:
Different societies have different laws based on their unique cultural and historical
contexts.
4. Historical Continuity:
Legal systems should respect the historical continuity of customs and traditions.
5. Why he was criticized?

 F.K. von Savigny was criticized for:
1. Resistance to Legal Reforms:
His opposition to codification was seen as hindering necessary legal reforms, especially
in rapidly modernizing societies.
2. Overemphasis on Tradition:
Critics argued that he placed too much importance on historical customs, which could
prevent legal systems from adapting to new social and economic realities.
3. Lack of Flexibility:
His approach was viewed as rigid, as it suggested that laws should primarily reflect
historical and cultural traditions, making it harder to address contemporary issues.
NOTE:
 For more theory on Friedrich Karl von Savigny refer Page 14 of Document Jurisprudence
Question-C
1. Who was John Austin?
 John Austin further developed the Analytical School of Jurisprudence
 John Austin was a legal philosopher and a key proponent of the Analytical School of
Jurisprudence.
 He is best known for developing the theory of legal positivism, which focuses on law as
commands issued by a sovereign, distinct from morality.
 His major work, The Province of Jurisprudence Determined, systematized legal thinking in
terms of positive law.
2. What were his views regarding Analytical School explain in details?

 John Austin's views regarding the Analytical School of Jurisprudence, particularly through
his theory of legal positivism, focus on understanding law as it is, not as it ought to be.
 Austin’s theory has been foundational for the Analytical School, as it laid the groundwork
for understanding law in a scientific, analytical way—focused on structure and authority
rather than values or ethics.
 His key ideas include:

1. Law as Commands:
Laws are seen as commands from a sovereign, backed by sanctions. These commands
must be obeyed for law to function effectively.
2. Separation of Law and Morality:

Analytical jurists believe law is independent of morality. A law's validity is based on
its source (the sovereign), not its moral content.
3. Sovereignty:
Law derives from a supreme authority (sovereign) in society, who is habitually
obeyed by the people.
4. Positive Law:
The school focuses on positive law—the law that is enacted or recognized by a
government. Natural law or moral considerations are secondary or irrelevant in this
view.
5. Clarity and Precision:

The Analytical School strives for clarity in legal definitions and concepts, reducing
ambiguity in legal interpretation.
6. Critique of Customary and Unwritten Law:

Customary or unwritten laws are not considered true law unless they are adopted or
recognized by the sovereign.
NOTE:
 For more theory on John Austin refer Page 5 of Document Jurisprudence
OR
Question-A
1. Who was Hans Kelson? What was Kelson’s Theory? What were the
criticisms given to his theory? Explain in detail.
NOTE:
 For solution of above-mentioned question refer Page 9 and 10 of Document Jurisprudence.
Question-B
2. Who was Sir Henry Maine?
 Sir Henry Maine was a British jurist, legal historian, and anthropologist known for his work
on comparative law and legal history.
 His most famous book, Ancient Law (1861), influenced the development of legal
anthropology and sociology.
 He explored how societies transitioned from status-based legal systems to contract-based
systems.
3. What were his views regarding Historical School explain in details

 Sir Henry Maine was a key figure associated with the Historical School of Law, which
emphasized that law evolves organically over time, shaped by the customs, traditions, and
historical experiences of societies.
 His views can be summarized as follows:

1. Law as a product of society's evolution:
Maine believed that legal systems develop gradually, reflecting the society's changing
structure. In his famous work Ancient Law (1861), he argued that early law was based on
social status (e.g., family, tribe) but evolved to reflect individual contracts and
agreements in more modern societies.
2. Progress from "Status" to "Contract":

Maine's most well-known theory is the idea that societies transition from laws based on
status (where social position determines rights and obligations) to laws based on
contract (where individual agreements shape legal relationships). This was seen as a
hallmark of more advanced, commercial societies.
3. Criticism of universal natural law:
Unlike advocates of natural law who believed in universal principles governing all
societies, Maine argued that laws were particular to each society’s historical context. He
opposed the idea that law could be created or understood through abstract principles
alone.
4. Influence of Customary Law:

Maine highlighted that customary law played a significant role in shaping legal systems,
especially in primitive societies. He showed how customs were often formalized into
codified laws over time.
5. Historical Method in Legal Study:

Maine’s approach involved studying the historical origins and evolution of legal systems
to understand modern law. He believed that without understanding the past, one cannot
fully comprehend current legal structures.
 In essence, Maine’s views in the Historical School of Law underscore that law is not static
or universal but deeply rooted in the historical and cultural context of each society. He
argued that legal development reflects broader social evolution.
NOTE:
 For more theory on Sir Henry Maine refer Page 16 and 17 of Document Jurisprudence
Question-C
1. Write down the H.L.A. Hart’s Contribution of Analytical Positivism?
 H.L.A. Hart, was a major figure in Analytical Positivism.

 He made several key contributions to legal theory, particularly in his book The Concept of
Law (1961).
 Hart’s work laid the foundation for modern legal positivism, emphasizing the structure of
legal systems and rules over moral considerations.
 His contributions include:

1. Distinction between Primary and Secondary Rules:
a. Primary rules: Directly regulate behavior (e.g., criminal laws).
b. Secondary rules: Govern the creation, modification, and enforcement of
primary rules (e.g., rules of recognition, change, and adjudication).
2. Rule of Recognition:
Hart introduced the concept of a "rule of recognition," which is a secondary rule used by
legal officials to identify valid legal norms within a legal system.
3. Separation of Law and Morality:

Hart maintained the positivist stance that law and morality are separate. A law can be
valid even if it is unjust or immoral, so long as it meets the criteria set by the legal
system's rules of recognition.
4. Critique of Austin’s Command Theory:

Hart criticized John Austin's "command theory," arguing that law is not merely orders
backed by threats, but a system of rules that includes obligations and authority, not only
coercion.
5. Internal and External Aspects of Law:

Hart distinguished between the internal view of law (how participants in the legal system
view and follow rules) and the external view (how an outside observer sees the system
as a set of behaviors or commands).

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Question-A

1. Who founded Analytical School of Jurisprudence?

2. What are the views given by him?

3. On what basis he was criticized by different authors?

2. Who was the founder of Historical School?

3. What were the views of F.K. Von Savigny?

5. Why he was criticized?

2. What were his views regarding Analytical School explain in details?

 His key ideas include:

2. Separation of Law and Morality:

5. Clarity and Precision:

6. Critique of Customary and Unwritten Law:

3. What were his views regarding Historical School explain in details

 His views can be summarized as follows:

2. Progress from "Status" to "Contract":

4. Influence of Customary Law:

5. Historical Method in Legal Study:

 H.L.A. Hart, was a major figure in Analytical Positivism.

 His contributions include:

3. Separation of Law and Morality:

4. Critique of Austin’s Command Theory:

5. Internal and External Aspects of Law:

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