B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2011 Jun Question Paper with Solutions

What a school is

A school of jurisprudence is a group of thinkers who share an approach to the study of law. The schools differ because they ask different questions. One asks what law ought to be. Another asks what law is. Others ask where law came from, what it does in society, or how judges actually decide. Each school sees a real part of the truth, and none sees all of it.

1. The natural law or philosophical school

Its question: what ought the law to be?

Its ideas. There is a higher law, known by reason, against which human laws are measured. Greek and Roman thinkers, Aquinas, and the natural rights writers Grotius, Locke and Rousseau belong here. In the twentieth century Stammler, Fuller and Finnis gave it modern form.

Contribution. It gave the world the idea of rights that the State must respect, and a standard for judging unjust laws.

Weakness. Its principles are vague, and its followers disagree about what they require.

In India. In A.K. Gopalan v. State of Madras, 1950 AIR 27, the majority read "law" in article 21 as State-made law. It refused to read in principles of natural justice. That is the positivist view.

3. The historical school

Its question: where did the law come from?

Its ideas. Savigny taught that law grows from the spirit of a people, the Volksgeist, like its language. Law is found, not made, and legislation should follow custom. Puchta developed his view. Sir Henry Maine traced the growth of law in early societies. He described the movement of progressive societies from status to contract.

Contribution. It showed that law is rooted in history and custom, and warned against imposing laws that a people will not accept.

Weakness. It undervalues legislation as a means of reform, and the idea of a single national spirit is vague.

In India. Custom remains a source of law. In Bhimashya v. Janabi, decided in December 2006, the Supreme Court restated the tests of a valid custom. A custom varying the general law must be pleaded and proved by clear evidence. It need not, however, meet the strict English rule of time out of memory.

Its ideas. The American realists looked at the behaviour of judges. Holmes defined law as the prophecies of what the courts will do in fact. He also said that the life of the law has not been logic but experience. Gray held that statutes are only sources of law, and that the law is what the courts declare. Llewellyn studied how rules work in practice, and Jerome Frank stressed the uncertainty of fact-finding. The Scandinavian realists, such as Olivecrona and Ross, explained law through psychological facts rather than abstract ideas.

Contribution. It brought attention to the courtroom, to fact-finding and to the human element in judging.

Weakness. It underrates the role of rules, which in most cases do guide decisions.

In India. In Union of India v. Raghubir Singh, 1989 AIR 1933, the Supreme Court explained the value of binding precedent for certainty. It also said that precedent must yield at times to changed social conditions. It invoked Holmes's saying that the life of the law has not been logic but experience.

The newer approaches, in brief

1. Economic analysis of law judges legal rules by their efficiency.

Conclusion. The schools of jurisprudence are different approaches to law, each answering its own question. The natural law school asks what law ought to be, and the analytical school what law is. The historical school asks where law came from, the sociological school what it does in society, and the realists what courts actually do. Indian decisions draw on all of them: Maneka Gandhi, Gopalan, Bhimashya, Olga Tellis and Raghubir Singh each reflect one. A full understanding of law needs all five.