Research of The Concept and Purpose of Law Through The Schools of Jurisprudence

General Introduction

Law is a very wide concept and ordinarily does not admit to any one universally accepted definition. Everybody has an alternate perception of law and its comprehension can differ from person to person. It can admit to a certain description but an author has the discretion to map its boundaries for his discussion and to convey an idea of what law is. For this purpose, we resort to the study of jurisprudence, which is a hypothesis and investigation of law. General Jurisprudence can be classified into: (i) Analytic Jurisprudence, and (ii) Normative Jurisprudence. The former dwells upon the question of ‘What is Law?’ whilst the latter dwells upon questions like, ‘What is the purpose of law?’

The best answer to these questions can be studied under the five prominent schools of Jurisprudence:

1. Analytical School of Jurisprudence
2. Sociological School of Jurisprudence
3. Realist School of Jurisprudence
4. Philosophical School of Jurisprudence
5. Historical School of Jurisprudence

Analytical School of Jurisprudence

Till the beginning of the 18th century, natural law was predominant and its principles were considered to be supreme. Justice, nature, reason, and supernatural sources were some of the bases of natural law. The analytical school of law defined the ‘relation of law with the state’ and was a reaction against the ideas and principles of the natural law.

It is also known as the Austenian, Imperative or Positive school of law. It is one of the main schools of jurisprudence and had first gained its prominence in the 19th century. The school was propounded by Jeremy Bentham and John Austin; however, Austin is regarded as the father of the Analytical school of law, he defined law as “The rules defined for the guidance of intelligent being by another intelligent being having power over him.” The analytical school treats the command of the sovereign by sanction and the subject matter of this school is positive law which is why Dias terms this approach as ‘Positivism.’ Moreover, the school only focuses on the present situation as it is the law set by the political superior and does not concern itself with the past or the future.

Proponents of Analytical School of Jurisprudence

(a) Jeremy Bentham

John Austin propounded the theory of positive law but the establishment was laid by Jeremy Bentham, which is why he can be said to be the author of the analytical school of law. He believed in testing law on the basis of utility principle and how legal actions should be approved or disapproved based on their effect on the maximization or minimization of happiness of the people. He considered people to be governed and ruled by the principles of pleasure and pain.

He claimed that if people had the liberty of choosing what they desire, they will attain the maximum possible happiness and consequentially deliver the best possible results to the society and the state, owing to which he propounded the idea of a ‘Laissez-Faire’ kind of state where the man has complete liberty over his actions without any hurdles obstructing him.

Moreover, he divided jurisprudence into two kinds:

• Expository Jurisprudence: which deals with the law as it is
• Censorial Jurisprudence: which deals with law as it ought to be

His examination of censorial jurisprudence is indicative of the fact that natural law has not yet completely disappeared and which is why he proffered utility as the primary governing principle.

Praise

Bentham has provided a vast number of contributions due to which his ear is also known as the ‘Benthanite Era’ in the legal history of England. Furthermore, his philosophy that, “Justice is nothing by social happiness or the happiness of the majority of people” seems like a great moral of ideal for the welfare of states. He also moved on to introduce legal positivism and treated the study of law as a science of investigation in itself through scientific methods of reasoning and experimenting.

Criticism

Many claim that his approach fails to balance the individual interests of the people with the collective interests of the society and that the concept of pleasure and pain cannot be the final test as these two are not the final goals of laws and legislations. He also faced criticism on his propagation of the concept of ‘Laissez-Faire’ to provide complete freedom to individuals in the process of development was not actually correct and that even in later times legislations were in fact used to restrict individuals in economic matters.

(b) Hans Kelson

Kelson gave the ‘Pure Theory of Law’ which suggests that law must remain free from the influence of all social sciences, such as psychology, sociology etc. he aimed at establishing a science of law which will be pure in the sense that it shall shun all ethical, moral, metaphysical, psychological and sociological elements and factors; he tried to altogether exclude such factors from the study of law. He too constantly criticized the ideas and principles of natural law.

Kelson defined law as an order of human behaviour and it being coercive in nature, owing its coercive powers being derived directly from the sanction attached to it.

Essential Foundations of Kelson’s System:

• Aim of this theory of law, like any science is to reduce chaos and bring unity
• Legal theory is the knowledge of what law is and not what law ought to be
• Law is a normative science and not a natural one
• The theory of norms Is not concerned with the effectiveness of legal order

The most distinguishing feature of his pure theory of law was the ‘Grundnorm’ and the hierarchy of all norms. The grundnorm as the fundamental norm is the starting point in any legal system from which the legal system slowly broadens and progresses.

Praise

He is considered to be one of the most prominent and important jurists of the 20th century and someone who has had influential effects on many law scholars.

Criticism

His theory of the grundnorm has been observed to be vague by Freidman and has been claimed to be fictitious as it is something which cannot be traced into legal reality. Every norm or law derives its efficacy from some other norm or law standing behind it but the grundnorm has no rule or norm standing behind it.

Sociological School of Jurisprudence

The sociological school of jurisprudence treats law as a social wonder and is of the belief that law is a social capacity and an outflow of human culture which is concerned with the external relationships of all individuals. They claim law to be a social organization that when connected with orders bears a direct effect on the society.

The subject matter of this school is the relation between law and sociology and how law is a social phenomenon owing to the reason that it has an impact on society. The main subject matter of sociology is society, study of human behaviour and social changes whereas jurisprudence is the study of law and legal aspect of things, all combined together to birth the sociological school of jurisprudence. The school laid a great deal of emphasis on the legal perspective of every problem and how every problem has a legal as well as a social perspective. It is during the emergence of this school that the importance of maintain a balance between individual interests and the overall welfare of the society was realized.

According to Comte, “Society is like an organism and it could progress when it is guided by scientific principles.” He made a great effort to use law an instrument by which human society maintains itself as well as progresses.

Reasons for the Emergence of Sociological School of Law:

The school emerged in the late 19th and early 20th century, around the same time when the “Laissez-Faire’ state was first introduced, following which the individual interests of the society started to evolve. Laissez-Faire is a policy of minimum governmental control or interference in the economic affairs of its individuals and the society at large. It guarantees unrestricted freedom of individuals in all economic matters. Due to this, the individual interests of the people gained greater importance against the larger welfare of the entire society.

The sociological school was a reaction against this policy of Laissez-Faire as the school advocates a balance between the two factors. It believed in studying sociology from a legal point of view and as a subdiscipline of sociology which talks about interdependence of society and law.

Four Functions of Podgorecki:

• Aims to grasp law in its actual working
• Provides expert advice for social engineering
• The school struggles with reality
• The school attempts to shape its studies to make them useful for practical applications

Proponents of Sociological School of Jurisprudence

(a) Roscoe Pound

He was an American legal scholar who claimed that law should be studied as in its actual working and not as it stands in the textbooks. He also gave the infamous theory of ‘Social Engineering’ which compares lawyers to engineers who use their skills to develop and manufacture new products. Similarly, as a social engineer, it is the duty of the lawyers to build a structure in the society that provides maximum happiness and minimum possible friction.

According to his interest’s theory, the balancing of all conflicts of interests is a supreme over all individual interests:

• Individual Interest: These interests are demand from the viewpoint of individual life, interest such as personality and domestic relationships etc.
• Public Interest: These are asserted by individuals from the viewpoint of political life and claims that everyone has a responsibility to make use of resources open to public use within the interest of the preservation of state.
• Social Interest: These are in terms of social means to fulfil the needs of the society for better functioning and maintenance.

Pound’s Jural Postulates: The interests highlighted in these postulates are to be safeguarded

1. Criminal: It is the interest of protection from any internal aggression
2. Law of Patent: Aims at securing one’s own created property by one’s own labour and hard work
3. Law of Contract: Interests in making the contract and getting reasonable remedy or compensation when his right is violated
4. Law of Torts: Interest in protection against defamation and unreasonable injury caused by the negligent act of another.
5. Strict Liability: Duty of other people to keep their things within their own boundaries and to look after them in order to avoid injury to another

Praise

His idea of Social Engineering is followed universally for dispute resolution. Moreover, Pound has confessed that his postulates are not absolute and have relative value, but give ideal standards which the law should pursue in the society.

Criticism

His use of the term ‘engineers’ for lawyers has been criticized by many, claiming that it equates society to a factory like mechanism.

(b) Leon Duguit

He was a French jurist and a leading jurist of droit public i.e., public law. He was greatly influenced by Auguste Comte and Emile Durkheim. Duguit proposed the theory of ‘Social Solidarity’ which explains the cooperation between individuals needs and their existence. Social Solidarity literally means a feeling of oneness; it represents strength, cohesiveness, a collective consciousness and viability of the society as well as the interdependence of human beings in a society. Duguit was of a belief that mean cannot exist without interdependence and that cooperation is an essential factor in a cohesive society.

He considered any law to be bad law that does not promote social solidarity. He made the claim that it is a man’s duty as an individual of the society to follow and promote the approach of social solidarity.

Praise

He discarded the traditional theories that considered law to be deriving from the authority of the monarch or the state. He instead found the basis of law in the fact that humans are social animals endowed with a universal sense of instinct of solidarity and social interdependence.

Criticism

Many consider his theory of social solidarity to be vague and that a deeper analysis would reveal that it is not very different from the metaphysical notions that he very strongly rejected. Also, it was criticized how it was the duty of a judge to decide whether an act or rule is advancing social solidarity which some claim might deem dangerous as judges have their own limitations and that such a process might lead to judicial dictatorship.

Realist School of Jurisprudence

The realist school remains unconcerned with the ends of law and only aims to study the actual working of the law as it is. The school rejects the traditional definitions of law which regard the written or the enacted law as the only true and absolute law.

The realist school of jurisprudence talks about the aftermath of the industrial revolution during which emerged and developed socialization amongst people. The school is of the belief that in order to endure justice it is essential to strike a balance between the overall welfare of the society and personal liberties of its individuals. According to this school, society is a vital element in an individual’s life and vice versa.

The realists study the judgements given by the courts of law and consider the human factor involved in its delivery. They strengthen sociological jurisprudence as to perceive law as a consequential effect of social impacts and conditions in the form of judicial decisions.

The jurists of this school claim that judgements of the law are affected by human emotions and behaviour; they work towards studying the perspective of the lawyers and judges and the implementation of their thought processes and mind-sets during the delivery of case judgements.

The realist school is an experience of justice for different people and it attempts to consider the perspectives of both the parties involved in a case as well as tries to study their opinion of justice.

The ‘Doctrine of Precedents’ was first introduced by this school which states the role of judges in important judgements and cases and how judgements shall follow a strict hierarchy of the courts, for example: a decision laid down by the Supreme Court of India shall remain binding on all courts at the lower level.

American Realism

John Chipman Gray and Oliver Wendell Holmes are together regarded as the fathers of American realism. The ultimate aim of this school is to reform the law and the claim that it cannot be done without understanding the law first. They attempt to study the law as it is and not as it ought to be, which is something that they have in common with the Positivists.

The school believes in understanding the law while taking into consideration the sociological factors involved in it. They undertake an empirical approach to study the law and draw emphasis on the role of judges in law.

Proponents of Realistic School of Jurisprudence (American Realists)

(a) Oliver Wendell Holmes

Holmes is considered famous for his ‘Bad Man’s Theory’ which looks at law from a criminal’s perspective. According to him, the law is meant for potential criminals or the ‘bad men.’ Oliver Holmes rejected all definitions of law based on morality, ethics and natural law. He claimed that the bad man only cares about the actions of the courts if he commits an act and that such predictions regarding the court’s actions against a criminal is what the law really is. His definition of law as prediction resulted in an increase in the prominence of litigation and lawyers.

He advocates a complete separation of law and morals and claimed that legal history is to be studied only in order to analyse the relevance of certain historical laws on the contemporary laws. His approach towards was empirical and pragmatic. According to him, “Law is the thing that the courts do; it isn’t simply what the courts state.” His emphasis is on the activity and the life of law has not been rational but rather it has been involvement. He stated that law isn’t just logic or facts but the collected experience to deliver a prudent judgement.

He threw light upon the question as to “Why people understand the law?”, to which he answered that they do so in order to discern between the right and the wrong.

Praise

His writings on jurisprudence have shaped discussions on the nature of law and his court opinions have been studied as much for their style as for their intellectual content. Furthermore, he had a profound effect on the development of sociological jurisprudence and legal realism.

Criticism

His jurisprudence eventually led to the conclusion that the judges first come up with or make legal decisions and then come up with reasons to explain them which was widely criticized. Moreover, he paid too much deference to the power of the state to control individual freedom.

(b) Jerome Frank

Frank insisted upon two groups of realists, namely:

• Legal/Rule Sceptic: Realists who were sceptic about legal rules and them providing uniformity to law
• Fact Sceptic: Realists who were sceptic about the establishment of facts before the trial courts, in addition to legal rules

He considered himself to be a ‘Constructive Legal Sceptic’ belonging to the second group of realists. According to him, law involves application of rules of law to case facts by the judges. He was sceptic about the accuracy of those facts being presented to the judge, with the claim that if facts prove to be wrong then so does the judgement.

He drew emphasis on the uncertainty of law and that precedents and laws are made under the false belief of them being certain and that lawyers and judges shouldn’t strictly adhere to them. He claimed that such a dependence on precedents and laws provides a false sense of security which can prove to be dangerous and harmful.

He moved on to say that legal certainty is a myth and that there is no certainty their outcome due to a multitude of constants and variables. In his belief, “Law is a constructive work in the hands of lawyers and judges,” and that it is their duty to follow the background and do it independently and without any imposition.

Praise

He urged judges and legal scholars to acknowledge openly the gaps and the uncertainties in the law and to think of law pragmatically as a tool for human betterment.

Criticism

He never attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform, although, he also did not entirely deny the possibility of rational legal decision-making.

Scandinavian Realism

Many scholars claim that the jurists belonging to this school have certain differences amongst themselves. They have abstract and philosophical beliefs and strongly criticize the metaphysical ideas of law. They play an important role in rejecting the ideas of the natural school of law. The school overall denotes the legal philosophies of a group of scholars and denies the possibility of science of justice or values.

The school has made the claim that law cannot be explained simply by the facts alone and it exists by the psychological effects on it caused by certain factors. The jurists of this school laid emphasis on law as fact and created a climate conductive to the sociological study of law.

Proponents of Realistic School of Jurisprudence (Scandinavian Realists)

(a) Axel Hagerstorm

He is regarded as the spiritual father of the Scandinavian realists and has strongly criticized the metaphysical foundations of law. He was a strong critique of the errors in juristic thought and writing. He believed in conceptual analysis, as well as historical and psychological but never empirical unlike the American realists.

Hagerstorm rejected the attempts of various jurists to find empirical foundation of rights

He profoundly studied Greek and Roman law in his quest for historical basis of rights and claimed that, “One fights better if one believes that one has right on one’s side.”

He stated that the relation between law and ritual is like that between liquor and its bottle. He strongly rejected the ideas of good and bad and denied the existence of such objective values.

Praise

Hagerstorm’s importance for the development of his approach to legal philosophy generally and to international law is widely credited. Moreover, he claimed that there is no factual continuity, coherence or unity in legal rules other than what is actually stated by the judges.

Criticism

He was of the opinion that words such as ‘right’ and ‘duty’ were basically meaningless as they could not be scientifically verified or proven. He stated that they may somehow influence or direct individuals but if they could not stand the factual test, then they were mere fantasies. He also attacked various other such words claiming that they could not stand up to their scientific application.

(b) Karl Olivecrona

According to Olivecrona, law does not require a specific definition which is why he sought to investigate law and not its nature because such an examination would demand certain assumptions to be made and Karl believed in examining facts rather than making assumptions. He rejected the idea of a binding force behind law or the binding force of law and claimed that law has a binding force as long as its valid and that if law loses its validity, it will consequentially lose its binding force. He stated that such a force is not vested in the will of the state or the consequences if the law is broken, rather it is present in validity.

He was of the belief that the term ‘right’ is actually hollow and that legal problems can be solved without using the concept of rights.

He made the claim that law influences morality and not otherwise, and advocated the correlation of law and morality. He made the claim that morality of an individual is from a pre-existing law i.e., his moral compass forms due to the laws in action from when he was born.

Praise

His writings put emphasis on the psychological significance of legal ideas. He implied that anything can be made of importance by adding a psychological effect to it.

Criticism

The distinction espoused by Olivecrona between the truth and the correctness of legal statements is actually considered to be problematic but is not considered to be needed in this legal philosophy. Furthermore, his thoughts on judicial law-making are somewhat considered to be confused.

Philosophical School of Jurisprudence

Also known as the moral school, the philosophical school of law is often wrongly referred to interchangeably as the natural school of law. Although, it is not the same as natural law and is only a part of it as it only takes into account just one pillar or feature of the natural law, which is logic, and ignores the rest three. It is distinct in its features from that of the natural law as it states that law is based on reason and that any law which is against reason and logic, holds no validity. Whereas the natural school of law claims that law originates through some divine entity and has been prevalent ever since the beginning.

The school is mainly concerned with the connection of law to specific thoughts which the law intends to accomplish and tried to explore the reasons behind why a particular law has been established. It has made the claim that legal philosophy must be based on some ethical values in order to motivate and inspire people to maintain an upright living and a sense of righteousness. Moreover, the school makes a conscience effort to refer to those moral principles which mould a man’s conduct and enable him to distinguish between the right and the wrong, while simultaneously respecting the rights of other individuals in order to maintain a level of social harmony.

The school believes that laws may be made by the people or the state but whichever it might be, they have to be built upon the foundation of some reason or logic in order to uphold their validity in the society. The school also states law as the means to attain ends of justice and is concerned with the manner in which law fulfils its attainment of justice.

Proponents of Philosophical School of Jurisprudence

(a) Hugo Grotius

Grotius is regarded as the father of the philosophical school of law as he demarcated the philosophical school from natural school and one of the first ones to do so. He dwelled upon the idea of reason and logic as the bases for the origin of any law not through some divine entity or origin. Prior to his theory, people strongly associated law to god and the divine. He also stated that, “natural law springs from the social nature of man and the natural law as well as positive morality, both are based on the notion of righteousness.” He accredited that humans came into existence, and continue to exist in a society collectively while maintaining a level of interaction owing only to the social contract theory, which says that people live together in a society in accordance with an agreement that establishes moral and political rules of behaviour. He was of the view that the agreement of mankind concerning certain rules of conduct is an indication that those rules originate in the right reason.

He also stated that it is the duty of the sovereign, who is bound by the principles of natural law, to protect the people of the state and safeguard their rights as he has been handed over the power to do so. However, Grotius also explicitly pointed to the fact that in case the ruler does not remain in conformity of the principles of natural law and isn’t the perfect or desirable sovereign capable of safeguarding the people’s rights, it still remains the duty of the citizens to obey him.

He is also regarded as the father of International law, and he gave the ‘One Nation Theory’, which means that the whole world is one and is governed not by force or warfare but by actual laws and mutual agreement to enforce those laws. He additionally advanced the idea of ‘Just War’ as a war which was required by natural, national and celestial law in specific situations. He developed on a series of rules for the right conduct of war, based on the principle that actions in a war should serve the right.

Praise

He was the first one to demarcate philosophical school of law from natural school of law. Furthermore, he also defended the idea of free access to the ocean s for all nations which was appreciated by many at the time.

Criticism

He claimed that it was the duty of the citizens to obey the orders of even a bad sovereign and such a claim created inconsistency in his theory as on the one hand he is of the view that the ruler is bound by the just principles of natural law but on the other hand he also claims that, in no situation can the sovereign be disobeyed.

(b) Immanuel Kant

According to Kant, “The freedom of man to act according to his will and the ethical postulates are mutually corelative because no ethical postulate is possible without man’s freedom of self-determination.” He called the substance of ethical postulate as ‘categorical imperative’, which is the basis of his moral and legal theory.

Kant deeply relied on the concept of ‘united will of the people’ and made the claim that an individual is required to act in such a manner that the maxim of your action will become the maxim of general action of the society. In other words, he saw law as an instrument through which the individual will of the people can be harmonized with the general will of the society.

Praise

He was forward-looking as he had challenged the 18th century convention of social discrimination by creating a system if ethics in which morality is reason-based and impartial as well as egalitarian.

Criticism

Hegel argued that Kant’s ethics force humans into an internal conflict between reason and desire. For Hegel, it is unnatural for humans to suppress their desire and subordinate it to reason completely.

Historical School of Jurisprudence

The historical school of jurisprudence started with Von Savigny in the 19th century, and is primarily concerned with the history and evolution of law and the entirety of a legal system, while simultaneously examining the evolution of society and its affect along with consequent changes and advancements of laws in that particular society. It constitutes the general portion of legal history and examines the manner of growth of a legal system.

The initial question that the historical school of law focuses on is: How far have the modern laws been fashioned from the past? The jurists belonging to this particular school developed their theories based on one mutual basis which claims that ‘law is found, not made.’ They argue that law is found in the behavioural patter of the society, owing to the people’s habits and common customs, and that law and customs collectively become the law of the state. The school is of the belief that any particular system of law is nothing but the reflection of the spirit of the people who developed it.

According to the historical school, law should be dynamic and should continue to change and evolve along with the ever-changing needs of the society.

Reasons for the Emergence of Historical School of Law:

The primary reason for the origin of historical school of law is that it rejects the idea of formulation of law by judges or some divine relevance:

• Rejects the ideas proposed by the analytical school of law which states that law is the command of the sovereign. Historical school is of the claim that formulation of law is by the people’s customs, habits and not by precedents and interpretations of the judges or legislations.
• Secondly, it is in opposition of natural law which claims that law has been present ever since the inception of society and is given to us by some divine power or relevance, in disagreement to which the historical school states that formulation of law is by the people and not some divine origin.

Proponents of Historical School of Jurisprudence

(a) Friedrich Carl von Savigny

Von Savigny was a German Scholar and is regarded as the father of the historical school of law. He argued that the main source of law is the consciousness of the people and that it rather originates in the behavioural pattern of the society and cannot be artificially fashioned or created. He compared law to language and culture, something which cannot be applied universally and neither can be created based on a rational or eternal principle as different societies have different needs everywhere. Based on such an observation, he also noted that like language and culture, law is born, is found as well as it grows in the society and will die with the society.

He claimed that state law grows side by side with the strength of the state’s collective nationality and ceases to exist if or when nationality loses its charm in the society. He stated that law has its very own national character which gives rise to the concept of ‘Savigny’s Volksgeist’ which means law is the general product of people’s consciousness or will. He made the claim that law should support the will of the people and legislations should not be forced on the society unless they’re worked upon accordingly with the will of the society.

Praise

Von Savigny is considered to be one of the greatest jurists if the 19th century. Jurists claim that with the publication of many of his early works, modern jurisprudence was born.

Criticism

Although, Savigny’s theory of Volksgeist was a revolution and his contributions were appreciated by many, he ruined the very concept of the theory through exaggeration and overemphasis. The theory was criticized for its lack of precision and even though it contains some amount of truth, Savigny took it to far to develop some of its ideas. The theory in itself has limited applicability which he rather tried to deem universal. The theory was also criticized as all the customs cannot be of common conscience. Many believe that the theory is a direct product of the growing spirit of nationhood and nationalism prevalent in Europe during the era.

He was also criticized largely based upon the idea that he overlooked the impact of almost all other sources of law.

(b) Sir Henry Maine

Henry Maine is regarded as the founder of the English Historical School of Law, he carried forward Von Savigny’s work and views in English. Maine studied the Indian Legal System in depth and was a law member in the council of the Governor-General of India between 1861-1869. Unlike Savigny, he was in favour of codified laws and legislations.

Maine’s development of law in four stages:

• First Stage: (Law by the Ruler)

Rulers act under the influence of divine inspirations and the laws are made on the command of the ruler thereafter. Such a judgement was believed and interpretated to be the judgement of some divine origin. The ruler was not a lawmaker but rather, he was simply an executor of the will of the god.

• Second Stage: (Customary Laws)

The commands of the king are then translated into customary laws which prevail with the ruler or the majority class.

• Third Stage: (Law under Priests)

The knowledge of the customs soon shifts on to the minority class due to a lack of power in the hands of the original law-making authority like priests and soon the minority class supersedes the authority of the kind and obtains control over the law.

• Fourth Stage: (Codification)

In the fourth and final stage, the law is codified and legislated.

Concept of Static and Progressive Society:

• Static: These kinds of societies cease to develop and evolve beyond the era of codification. They don’t work on progressing the law further after the final stage.
• Progressive: These are societies which make a conscience effort at developing and progressing their legal system after the final stage with the help of instruments like:

1. Legal Fiction: It means to change the law with the changing needs of the people without making any amendments to the written code. Although, it makes the law more inclusive and improves legal order, it makes the law harder to understand.
2. Equity: It helps remove rigidity and injustice. Maine suggested that, “Equity is a body of rules existing by the side of the original civil law and founded on distinct principles.”
3. Legislation: It is the most effective and desirable method as laws will be enacted and will become operative officially.

Status to Contract

The society shifts from social status to contractual status where the rights and obligations of individuals only depend upon the contract based on free negotiations. All classes like labour, women, former slaves were now all free to negotiate contracts unlike earlier. Rights in static societies which were earlier decided on the basis of status will in progressive societies be decided on individual basis on the basis of free negotiation.

Praise

Maine incorporated the best ideas of Savigny and avoided abstract, unreal romanticism. He also appreciated codification as well gave importance to all sorts of legal reforms. Maine also acknowledged various other sources of law which Von Savigny failed to do.

Criticism

Many of his ideas on the development of law have been discredited such as the patriarchal theory and the shift of society from contractual status back to social status.

Conclusion

The schools of Jurisprudence present us with an idea of how the law and society and the need for law in a society originated. They aid us in understanding the contributing factors for the establishment of a successful and working society and the need for consent of its people for the law that they are following.