JURISPRUDENCE

JURISPRUDENCE

The English term Jurisprudence is based on the Latin word jurisprudentia: juris is the genitive
form of jus meaning "law", and prudentia means "prudence". Jurisprudence is thus the study
and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers
and social theorists of law), try to assign a deeper understanding of the nature of law, of legal
reasoning, legal systems and of legal institutions. There is no universal or uniform definition
of Jurisprudence since people have different ideologies and notions throughout the world. It
is a very vast subject.

DEFINITION OF JURISPRUDENCE
Bentham was the first one to analyse what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

However, Austin stuck to the idea that law is command of sovereign. The structure of English
Legal System remained with the formal analysis of law (Expositorial) and never became what
it ought to be (Censorial).

J. Stone also tried to define Jurisprudence. He said that it is a lawyers extraversion. He

further said that it is a lawyers examination of the percept, ideas and techniques of law in the
light derived from present knowledge in disciplines other than the law.

Thus, we see that there can be no goodness or badness in law. Law is made by the State so
there could be nothing good or bad about it. Jurisprudence is nothing but the science of law.

Definitions by:

Austin- He said that Science of Jurisprudence is concerned with Positive Laws that is
laws strictly so called. It has nothing to do with the goodness or badness of law.

This has two aspects attached to it:

1. General Jurisprudence- It includes such subjects or ends of law as are common to all
system.

2. Particular Jurisprudence- It is the science of any actual system of law or any portion of
it. Basically, in essence they are same but in scope they are different.

Salmonds Criticism of Austin

He said that for a concept to fall within the category of General Jurisprudence, it should be
common in various systems of law. This is not always true as there could be concepts that fall
in neither of the two categories.
Hollands Criticism of Austin

He said that it is only the material which is particular and not the science itself.

Hollands Definition- Jurisprudence means the formal science of positive laws. It is an

analytical science rather than a material science.

1. He defined the term positive law. He said that Positive Law means the general rule of
external human action enforced by a sovereign political authority.

2. We can see that, he simply added the word formal in Austins definition. Formal here
means that we study only the form and not the essence. We study only the external features
and do not go into the intricacies of the subject. According to him, how positive law is
applied and how it is particular is not the concern of Jurisprudence.

3. The reason for using the word Formal Science is that it describes only the form or the
external sight of the subject and not its internal contents. According to Holland, Jurisprudence
is not concerned with the actual material contents of law but only with its fundamental
conceptions. Therefore, Jurisprudence is a Formal Science.

. This definition has been criticized by Gray and Dr. Jenks. According to them, Jurisprudence
is a formal science because it is concerned with the form, conditions, social life, human
relations that have grown up in the society and to which society attaches legal significance.

5. Holland said that Jurisprudence is a science because it is a systematized and properly co-
ordinated knowledge of the subject of intellectual enquiry. The term positive law confines
the enquiry to these social relations which are regulated by the rules imposed by the States
and enforced by the Courts of law. Therefore, it is a formal science of positive law.

6. Formal as a prefix indicates that the science deals only with the purposes, methods and
ideas on the basis of the legal system as distinct from material science which deals only with
the concrete details of law.

7. This definition has been criticized on the ground that this definition is concerned only with
the form and not the intricacies.

Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the land or
civil law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.

2. Specific- This deals with the particular department or any portion of the doctrines.

Specific is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development

3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to
be. It deals with the ideal of the legal system and the purpose for which it exists.

Criticism of Salmond- Critics say that it is not an accurate definition. Salmond only gave the
structure and failed to provide any clarity of thought.

Keeton- He considered Jurisprudence as the study and systematic arrangement of the

general principles of law. According to him, Jurisprudence deals with the distinction
between Public and Private Laws and considers the contents of principle departments of law.

Roscoe Pound- He described Jurisprudence as the science of law using the term law in
juridical sense as denoting the body of principles recognized or enforced by public and
regular tribunals in the Administration of Justice.

Dias and Hughes- They believed Jurisprudence as any thought or writing about law
rather than a technical exposition of a branch of law itself.

Conclusion- Thus, we can safely say that Jurisprudence is the study of fundamental legal
principles.
THE HART FULLER DEBATE

1. Natural law theory holds that along with the positive law there exists certain ideal
principles or values to which the positive law should correspond if it is to be regarded
as genuine law. Thus, while positivism holds that to be valid law, all that is required is
that it should issue from a competent legislator after following the prescribed process,
natural law theory requires in addition that such law, to be valid, must conform to
some ideal principle (Which may emanate from morality, reason, god, or some other
such source).
2. The Hart-Fuller "debate" illustrates the opposing points of view of positivism and
natural law, particularly in the context of Nazi laws.
3. The debate began when Hart published his Holmes lecture entitled Positivism and the
separation of law and morals delivered at Harvard Law school in 1957. The reply was
given by Fuller in his article , Positivism and Fidelity to Law - A reply to Prof.Hart in
1958.
4. Hart's rejoinder was in his book 'The concept of Law', which Fuller replied in his
book The morality of law.
5. This ding-dong, inconclusive series of repartees an drejoinders led Cotterrell to
remark in his book 'The Politics of Jurisprudence' - "There is often a sense that in the
battle of arguments no one ever wins, and further that there are no reliable criteria by
which one could recognise victory anyway. The disputes seem timeless, the issues
never resolved. Decade after decade positivists and natural lawyers face one another".
6. Justice Katju stated that the theory of dynamic positivism really puts the debate to an
end. Dynamic positivism certainly supports Hart's view that Nazi laws were also laws
but the reasons which dynamic positivism gives are deeper and more consistent than
those of Hart. Dynamic positivism aims at guiding society forward on scientifically
planned lines. It studies the historical trend in society, and aims at peacefully helping
social advance.
7. A typical example considered in the Hart-fuller debate was of the wife of a german
who reported her husband to the Gestapo for criticizing Hitler's conduct of the war.
The husband was tried and sentenced to death, but his sentence was converted to
service as a soldier on the Russian front. The husband survived the war and after the
war instituted legal proceedings against his wife. The wife's defence was that her
husband had committed an offence under a Nazi statute of 1934. Post war germany,
however, held the wife liable. Hart argued that the decision of the court was wrong, as
the nazi law of 1934 (the basic principle of nazi law was laid down in the enabling act
of july 12, 1934 passed by the german reichstag which amended the german
constitution by permitting hitler to issue decrees inconsistent with the constitution.was
a valid law as it satisfied his "rule of recognition" 1 whereas fuller contended that the
Nazi regime was so 'lawless' that nothing therein could qualify as law.
8. Fuller says that a law to be a law must have "inner morality".

1 It says that a law to be valid must be made in accordance with the constitution
(whether the constitution is written or unwritten).
 9. The Nazi regime was certainly immoral, but it was immoral because it was totally
inconsistent with the mode of production of modern industrial society and the social
relations and values which such a society engenders.

Thomas Aquinas

Aquinas distinguishes four types of lawhuman, divine, eternal, and naturalas follows:

1. Human lawan ordinance of reason for the common good promulgated by him who
has the care of the community.
2. Eternal law Gods plan for all of creation.
3. Natural lawThe part of eternal law that applies to human beings; it is Gods plan for
us. Natural law can be discerned by unaided human reason, and it consists in the
correct moral principles. E.g. it is never permissible intentionally to kill an innocent
human being, and one must never intend what is evil, even as a means to achieving
a good or avoiding a bad result are natural laws, in Aquinass view.
4. Divine lawthe part of eternal law that God reveals to us human beings via
Scripture. If something is against natural law, then its against divine law too. But
some things, primarily of a religious nature, are contrary to divine law but not natural
law. For example, natural reason and natural law tell us that the God of traditional
theism exists and should be venerated. But it is only through divine revelation that we
can know that baptism, membership in the Christian church, etc. are necessary for our
salvation.
5. Aquinas insists that human laws are genuine laws only if they do not contradict either
natural or divine law.
 ANALYTICAL LEGAL POSITIVISM
Legal positivism is regarded as one of the most influential schools of thought in legal
jurisprudence around the world. This theory was developed to a great extent by jurists such as
John Austin and Jeremy Bentham around the 18th and 19th century. Subsequently, this school
of thought was taken forward by influential jurists such as Herbert Lionel Adolphus Hart and
Joseph Raz.

The above jurists have significant differences in their views but the common idea that all of
the above jurists have is that they analyse law as it is. Therefore, they have the common
objective of helping people understand the law of the land as it is and not as it ought to be.
Therefore, the legal positivist school only aims to identify the law as it is laid down by a
superior body and not how it should have been.

Moreover, the other common theme between all the jurists of the legal positivist school was
that they kept law and moral principles on a completely separate footing. The legal positivists
believed that law had no relation to the moral principles. However, they were of the opinion
that law often reflects the morality of the people that it controls. Therefore, they said that the
law does not have to be in consonance with the principles of morality and ethics and rather
law is what is laid down by the superior body.

Depending on the weightage given to the moral principles, legal positivists can be divided
into positive positivists and negative positivists. Positive positivists such as Hart were of the
opinion that the moral principles do exist in the universe but it is not required for the law to
abide by them. Hart writes that it is in no sense a necessary truth that law satisfy demands of
morality, though in fact they have often done so. Therefore, they do not negate the existence
of moral principles. However, Negative Positivists are those who completely negated the
existence of the principles of ethics and morality. Therefore, they did not believe in the
existence of moral principles. This includes jurists such as John Austin.

Therefore, we can clearly infer that the legal positivist school does not completely negate the
existence of moral principles and to some extent also articulates that the law may be based on
the principles of morality and ethics. Their view is that even the moral standards attain a legal
status only through some form of official promulgation. The school of legal positivism seeks
to demarcate between law as it is and law as it ought to be It does not analyse the Censorial
nature of law, that is, law as it ought to be and concentrates on the law as it is given by a
superior authority. Two of the main jurists associated with the legal positivist school are John
Austin and Jeremy Bentham. Their main idea of law was similar but they differed in certain
aspects.

Whether a certain rule is a law, creating legal obligations to comply with it, all depends on its
source. Valid laws are simply rules that come from certain people (kings, city councils, etc.),
in accordance with certain procedures, that the society enforces. A rule can be a genuine,
valid law even though it is grossly unjust. According to H.L.A. Hart, a contemporary legal
positivist, the essence of legal positivism is the separation thesis.
Separation thesis:

having a legal right to do doesnt entail having a moral right to do it, and vice versa
having a legal obligation to do something doesnt entail having a moral right to do it,
and vice versa;
having a legal justification to do something doesnt entail having a moral justification,
and vice versa; etc.

In order to know what your legal rights are, you need to look at what laws your society has.
In order to know what your moral rights are, you need to figure out what is the true morality.
You might have legal rights that the true morality says you shouldnt have (e.g. the right to
own slaves), and your society might deny you legal rights that the true morality says you
should have (e.g. the right to be free, to own ones own body and labor power).

HANS KELSEN'S PURE THEORY OF LAW

He published the first edition of The Pure Theory of Law in 1934 and the second expanded
edition in 1960. Kelsen writes that a theory of law must be free from ethics, politics,
sociology, history etc. In other words, it must be pure. Tha aim of a theory of law is to reduce
choad and multiplicity to unity.

Grundnorm - "All legal norms of a given legal system ultimately derive their validity
from one basic norm".

Common wisdom has it that Kelsens argument for the presupposition of the basic norm takes
the form of a Kantian transcendental argument. The structure is as follows:

1. P is possible only if Q

2. P is possible (or, possibly P)

3. Therefore, Q.
In Kelsens argument, P stands for the fact that legal norms are ought statements , and Q is
the presupposition of the basic norm. In other words, the necessary presupposition of the
basic norm is derived from the possibility conditions for ascribing legal significance to
actions and events. In order to interpret an action as one of creating or modifying the law, it is
necessary to show that the relevant legal significance of the act/event is conferred on it by
some other legal norm. At some point, as we have noted, we necessarily run out of legal
norms that confer the relevant validity on law creating acts, and at that point the legal validity
has to be presupposed. The content of this presupposition is the basic norm.

Postulates of Kelsen

1. Law is a norm of action

Kelsen regards Jurisprudence as a normative science and not a natural science.

 In natural sciences, laws are statements of the sequence of cause and effect.

If A is, B is.

There can be no infraction of such a law, for a single infraction invalidates the law.

Jurisprudence according to Kelsen is a normative science.

If A is, then B ought to B. Eg: If a person commits a murder, he ought to be

hanged.

The law is valid irrespective of consequences.

Norm unlike facts focus on what 'ought' to be and not what 'is'. X kills Y is a fact.
Whether X ought to be punished for committing murder of Y or not is a norm.

2. There is no difference in public and private law

3. Denies any legal difference between natural and juristic personality

4. Law as normative science and not natural science

He described law as 'normative science' as distinguised from natural science.

According to him, science of law is knowledge of what law ought to be or it is the
ought character which provided normative character to law. E.g., A commit theft he
ought to be punished.

Hans kelsen claimed that the theory is pure on two counts

It distinguishes law from (A) morals and (B) Fact.

Grundnorm

He termed his basic norm as Grundnorm, thus all other norms drive its validity from
Grundnorm. A grundnorm is said to be accepted when it has secured for itself a minimum
level of effectiveness. When it ceases to derive a minimum of support, it ceases to be the
basis of the legal order. For that reason, it is replaced by some other grundnorm which obtains
minimum support. the grundnorm is the intial hypothesis upon which the whole system rests.

Hans Kelsen's Introduction to Pure Theory of Law

The two editions of Kelsen's book were separated by twenty-six years, and the second edition
(1960) was almost twice the length of the first in the detail of its presentation. The original
terminology which was introduced in the first edition was already present in many of
Kelsen's writings from the 1920s, and were also subject to discussion in the critical press of
that decade as well, before it was first published in 1934.

The Pure theory of Law as a Theory of Positive Law

On page one, paragraph one of Pure Theory of Law, Kelsen introduces his theory as being a
theory of positive law. This theory of positive law is then presented by Kelsen as forming a
hierarchy of laws which start from a Basic Norm or Grundnorm where all other norms are
related to each other by either being inferior norms, when the one is compared to the other or
superior norms. The interaction of these norms is then further subject to representation as a
static theory of law (Kelsen.s chapter 4) or as a dynamic theory of law (Kelsen's chapter 5).

Law and Morals in the Pure Theory of Law

Kelsen's strict separation of law and moralswas an integral part of his presentation of the pure
theory of law. The application of the law, in order to be protected from moral influence or
pilitical influence, needed to be safeguarded by its separation from the sphere of conventional
moral influence or political influence. Kelsen did not deny that moral discussion was still
possible and even to be encouraged in the sociological domain of intersubjective activity.
However, the static operation of the pure theory of law (see section below) was not to be
subject to such influences as presented by Kelsen in Chapter Two of the second edition of this
book.

Law and Science

For Kelsen, in Chapter three of Pure Theory of Law, law was defined as the application of
norms to its function for the state. Science was generally the domain of the causal
understanding of epistemological data and its primary logical and causally oriented technique
was to be distinguished from the normative reasoning as was to be found int eh pure theory of
law.

The Static aspect of law

As mentioned above, in Chapter Four of his book, Kelsen distinguished the static theory of
law from the dynamic theory of law (see discussion below). the stati theory of law
represented the law as a hierarchy of laws where the individual laws were related the one to
the other as either being inferior, the one to the other, or superior with respect to each other.
This hierarchical theory was largely adopted from Adlof Merkl's reserch in the structural
aspects of the law while Kelsen was still in Vienna.

Law and State

Chapter six of Pure Theory of Law has Kelsen present his celebrated identity theory of law
and state. This is Kelsen's highly functional theory of the state and the law as representing the
same entity. It is not to be confused with the sociological domain or the cultural domain of
inter subjective activity. Nor is it to be confused with the political or even the religious
domain of inter subjective interaction among individuals.

State Law and International Law

In Chapter Seven, Kelsen presents his disucssion of the interaction of state law and
international law as these are especially guided by the understanding of political sovereignty.
For Kelsen, the assessment of international law is that it represents a very primitive from of
law in distinct contract to the highly developed forms of law as may be found in individual
nations and states. As a result, Kelsen emphasizes that international law is often prone to the
conduct of was and severe diplomatic measures (blockade, seizure, internment, etc.) as
offering the only corrective measures available to it in regulating the conduct between
nations. For Kelsen, this is largely inevitable due to the relative primitiveness of international
law in contemporary society.

Legal Orders

For Kelsen as for other Central European contempararies, norms occur not singly but in sets,
termed 'orders'. The ordering principle of an order of moral norms, and of an order of natural
law, if one could exist- wold be logical, as deduction. From the general norm 'do not kill other
human being, it follows deductively that A must not he maintains, is not, or not centrally, like
a 'static order. An order of positive law. 'dynamic', in that its ordering principle is
authorisation. Each relatively 'higher' norm authorises someone (an individual or an organ,
primarily of the state) to create further and relatively 'lower' norms.

Basic Norm (Grundnorm).

Kelsen assumes, however, that the scientific representation of a positive-legal order, as a

hierarchy of legal propositions, must have a guarantor of unity. This guarantor cannot be
other than a component of the representation, hence legal proposition. Being a legal
proposition, it counts as a representation of an actual norm. So Kelsen calls it, elliptically, a
'basic norm (Grundnorm), A basic norm is 'presupposed' in legal science for each order of
positive law, to make it possible to understand that material as an order of positive law. this
norm is simply that 'the historically first constitution is to be obeyed'. That constitution may
have become established by custom or by revolution: the jurist does not evaluate the
circumstances.

Grundnorm in India : A new perspective

1. The Grundnorm or the Basic Norm is a concept given by Hans Kelsen, an Austrian
jurist through his renowned Pure Theory of Law. Grundnorm refers to the source of
the validity of positive law.
2. As far as the validity of Grundnorm is considered, it exists through its acceptance by
the society as the reason for the authority of all the rules of the system. Therefore, the
existence of a Grundnorm is necessarily presupposed, for without it the rest of the
norms could not be explained. Moreover, any norm can be a Grundnorm, with only
condition being that it would justify or validate the norm underneath it.
3. In Indian context, laws need to be evaluated on the touchstone of the Constitution in
order to be declared as valid laws. The laws of the land derive legitimacy from the
Constitution and are consequently subordinate to it. Therefore, it is widely believed
that Constitution of India qualifies as the Grundnorm in India.
4. However, the very fact that the Constitution can be amended shows that it is possible
to derogate from the authority of the Constitution itself. If a Constitutional provision
is amended substantially, it can no longer confer validity upon the laws under it.
Similar would be the effect, if, a provision of a Constitution is repealed. Thus, it
would be improper to refer to the Constitution as the Grundnorm.
5. Given this backdrop, the author suggests that the Grundnorm in the Indian context
should lie in the Basic Structure. As we proceed, it is prudent to understand the
context and evolution of the Basic Structure. The Basic Structure is the core of the
Constitution on the touchstone of which the validity of the provisions of the
Constitution including the amendments made to the Constitution is evaluated. If a
provision violates the Basic Structure of the Constitution, then, that provision is
considered as null and void. Its origin can be traced back to the landmark case of
Keshvanandan Bharti v. State of Kerala where the concept was evolved in the form of
doctrine in which it was held that the basic features of the Constitution are un-
amendable and form the crux of the Constitution. This meant that any law could come
into existence only after it is tested on the touchstone of the Basic Structure.
Consequently, any provision of the Constitution or the laws flowing from it would be
redundant if they violate the Basic Structure of the Constitution. Therefore, it can be
construed that the validity of the provisions of the Constitution and that of the laws
under its authority is dependent upon the Basic Structure. Hence, this is in accordance
with the Kelsens theory of Grundnorm. The Basic Structure (i.e. the Grundnorm)
authenticates other provisions of the constitution (i.e. lower norm) which further
confer validity on the laws made under it, provided, they do not violate the basic
structure. Moreover, the Basic Structure cannot be amended or repealed as mandated
by Basic Structure doctrine.440 Therefore the problem pointed out with the
Constitution as a whole doesnt hold true for the Basic Structure and thus it could be
contended that Basic Structure is the Grundnorm in Indian context.
6. The author is of the view that the above-mentioned approach of considering Basic
Structure as the Grundnorm is an alternative solution to the contentious debate
surrounding the primacy of critical over conventional morality and vice versa. For
instance, to establish the validity of a given law, the law should be in conformity with
the provisions of the Constitution which ultimately means that if the law satisfies the
parameters set by the Grundnorm, then the law would be considered as valid. In the
present context, if the given law does not violate the Basic Structure, the law shall be
considered as valid. Therefore, there should be no leeway provided to contemplate
whether the law is morally sound or not as per conventional or critical morality.
7. Therefore, it is humbly submitted that the Grundnorm in the Indian context is the
Basic Structure instead of the Constitution. Such a stance could possibly give an
alternative solution to avoid the debate of critical and conventional morality. The
researcher advocates that laws should be evaluated on the touchstone of Basic
 Structure viz. the Grundnorm, so as to, avoid the issues surrounding the morality of
law.

The great contribution of Kelsen was that he demonstrated the unity of the legal system as
well as the mechanics of its operation and that was really a valuable contribution.

H.L.A.HART'S PRIMARY AND SECONDARY RULES

His views were expressed in his book The Concept of law, wherein he made a distinction
between primary and secondary rules. Legal rules are 'the key to the science of
jurisprudence'. A distinction between primary and secondary legal rules, where a primary rule
governs conduct and a secondary rule allows of the creation, alteration, or extinction of
primary rules. primary rules (rules of conduct) and secondary rules (rules addressed to
officials and which set out to affect the operation of primary rules). Secondary rules deal with
three problems: first the problem of uncertainty about what the law is (the secondary rule for
this dilemma is called the rule of recognition and states the criteria of validity of a law),
second the problem of rigidity of rules (which requires rules of change allowing laws to be
varied), and third the problem of how to resolve legal disputes (from which rules of
adjudication arise). This model of law, essentially a union of primary and secondary rules, is
for Hart the essence of a legal system.

Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be
related to the meaning of the words, not any natural or moral belief. A "core" case would be
one that the statute is intended to cover. In the classic example, a statute that bans vehicles
from a park obviously is intended to cover cars. A "penumbra" case would be one not
considered by the creators of the law, such as an airplane in the example above. A judge
interpreting such a law from a positivist viewpoint would look to a definition of the words of
the statute.

The Distinction Between Primary and Secondary Rules

Hart's basic idea is quite simple.

Primary rules are rules of conduct; they tell you what your are legally obligated to do (or
refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal
law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the
prohibition.

Technically, the class of secondary rules includes everything except primary rules. The
category of secondary rules includes legal rules that allow for the creation, extinction, and
alteration of primary rules; these secondary rules are power-conferring rules. Thus, contract
law empowers individuals and firms to make contracts; contracts themselves are usually
collections of primary rules.

More precisely, primary rules are rules that govern primary conduct, and secondary rules are
rules that govern primary or secondary rules. Thus, the distinction between primary and
secondary rules is just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer
power. This leaves open the possibility that some rules can regulate other rules, but do so by
imposing duties. For example, a secondary rule might impose a duty to legislate in a certain
way or a prohibition on certain kinds of rule creation.

He distinguished primary rules from secondary rules or duty imposing rules from power
conferring rule. Primary rules are rules meant to guide the conduct of the individuals and
other legal persons and secondary rules are rules about how primary rules are to be created
and recognized. The example of duty imposing rules are rules of Income Tax Act, Wealth tax
Act, etc. which requires that taxes must be paid. The examples of power conferring rules are
power to enter into a contract, make will etc. These may be used or ignored

Some more examples may help:

Examples of Primary Rules - Primary rules regulate the behaviour of man in the
society. These rules either grant rights or impose obligations on the members of the
society

Criminal prohibitions.

Tort rules.

The individual right to freedom of speech.

The provisions of contracts that define the primary obligations of

the parties.
The environmental law rule that forbids discharge of toxic
substances in rivers and streams.

Examples of Secondary Rules - Secondary rules are those that stipulate how and by
whom the primary rules may be formed, recognised, modified or extinguished.

Contract law rules that enable parties to form contracts.

The rules that allow testators to create a will.

The constitutional rules that confer legislative powers on

Congress.
The statute that authorizes the Supreme Court to promulgate
rules of practice and procedure for the federal courts.
 For example, they grant Congress the power to legislate and
private citizens the right to vote. They state the procedure one
must follow in order to make a legal will. Secondary rules are, as
Hart puts it, rules about primary rules

He specifically enumerates three secondary rules as follows:-

1. The Rule of Rocognition:- The rule by which any member of society may discover what
the primary rules of the society are. In a simple society, Hart states, the recognition rule might
only be what is written in a sacred book or what is said by a ruler. Hart claimed the concept
of rule of recognition as an evolution from Hans Kelsen's Grundnorm, or basic norm.

2. The Rule of Change:- The rule by which existing primary rules might be created, altered
or deleted.

3. The Rule of Adjudication:- The rule by which the society might determine when a rule
has been violated and prescribe a remedy.

According to Prof. H.L.A. Harts the concept of law, there are certain matters which influence
human behaviour. These can be divided into two categories, social habits and social rules.

SOCIAL HABITS :- An example of a social habit might be the habit of a group to go to the
cinema on Saturday evening. Habits are not rules. If some people in the group do not go to
the cinema on Saturday evenings, this will not be regarded as a fault, nor render them liable
to criticism

SOCIAL RULES :- An example of a Social rule might be a rule that a man should take his
hat off in church. If someone breaks the rule, this is regarded as a fault, and renders the
offender liable to criticism. Such criticism is generally regarded as warranted, not only by
those who make it but also by the person who is criticised. Further, for a social rule to exist,
at least some members of the group must be aware of the existence of the rule, and must
strive to see that it is followed, as a standard, by the group as a whole.

If something is a social rule, then we would find that such words as ought, must, should
are used in connection with it. Social rules are of two kinds. i. Those which are no more than
social conventions, for example rules of etiquette or rules of correct speech. These are more
than habits, as a group strives to see that the rules are observed, and those who break them are
criticised. ii. Rules which constitute obligations. A rule falls into this second category when
there is an insistent demand that members of the group conform, and when there is great
pressure brought to bear on those who break the rule, or threaten to do so.

Harts Minimum Content of Natural Law:

In the Concept of Law Hart suggested that there is a core of indisputable truth in the
doctrines of natural law. Again his tactics look back to Hobbes ad he claims to be merely
using reason to identify what minimum sort of rules are required by the basic elements of the
human condition. Five truisms about humanity give a reason for postulating a minimum
content of social rules; these are:

1. Human vulnerability
2. Approximate equality
3. Limited resources
4. Limited altruism
5. Limited understanding and strength of will

MODERNISM

Modernist legal theories are built on the idea of constitutionalism, the idea of a society
governed by the rule of law with the supremacy of law or the constitution at the top of the
pyramid of laws.

POST MODERNISM JURISPRUDENCE

1. Critical legal studies movement and feminist jurisprudence both had by the end of the
1980s submerged into post-modernism.
2. The word postmodernism in literal sense means after modernism. It was originally
a reaction to modernism (the word post is not in the sense after).
3. Post modernism is mostly influenced by the western European disillusionment
induced by World War II.
4. Postmodernism is difficult to define, because to define it would violate the
postmodernist's premise that no definite terms, boundaries, or absolute truths exist.
5. In general, postmodernism is an attack on modernist claim about the existence of truth
and value which has been emerged from the European enlightenment of the 18th
century. Post-modernist, therefore, disputes about the past assumptions particularly
with respect to modernist assumption that truth or an objective reality can be possibly
known.
6. Post-modernists characterize modernity as an iron cage of bureaucratization,
centralization and the infinite manipulation of psyche by the culture industry and the
disciplinary machines of power and knowledge.
7. They believe that modernitys structures, its laws, its literature, its architecture, its
arts, or any of its products are subject to deconstruction, a process which reveals a
number of alternatives. They do not believe that society contains any objective truth
or natural laws upon which it can be grounded.
8. Some post-modernist assert that we live in a prison house of language.
9. The postmodernism in their historical, cultural, artistic, and philosophical discourses,
propagate that every statement necessarily be tentative, fragmentary, time-bound and
inherently open to contestation.
10. Post-modernist writing are trying to offer an alternative to the rigid, arbitrary,
normative structure of the liberal legal system.
 11. The term 'Post modernism' was used as early as 1914 in an article in the Hibbert
journal written by J.M. Thompson. In this context it was used to describe fundamental
changes in attitudes and beliefs within Christian society of the time. It was re-coined
in 1949 to describe dissatisfaction with modern architecture, leading to the post-
modern architecture movement. Later the term was applied to several movements,
including in art, music and literature that reacted against modern movements and are
typically marked by revival of traditional elements and techniques.

Postmodernism is a response to the legitimate crises of the society. It is argued that the
modern bureaucratic state has become dysfunctional, either because it has colonized other
life-worlds, or because it has inappropriately interfered with the functioning of other
subsystems. The result has been inefficiencies in managing economic and social problems
and the distortion of human relations.

There many scholars who propagates the post-modern theories in different disciplines,
the most important are French philosophers Jacques derrida ( 1930) and Michel Foucault
(1926-1984) and psychoanalyst Jacques Lacan.

Derrida - originated the philosophical method of deconstruction, a system of analysis

that assumes a text has no single or fixed meaning. It because of the inadequacy of language
to express the authors original intention and because a readers understanding of the text is
culturally conditioned that is influenced by the culture in which the reader lives. Thus texts
have many possible legitimate interpretations brought about by the play of language. His
method of deconstruction when applied to text of law and jurisprudence brought into picture
many conflicting forces within the text and that highlight the devices the text use to claim
legitimacy and the truth for itself, many of which may lie beyond the intension of its author.
These ideas about language resemble with views held by the analytic philosophers
Wittgenstein and Quine.

Post-modernism ideas are giving voice to underprivileged - Under the influence of the
writings of Michael Foucault and Jacques Derrida post- modernist scholars engaged with the
study which emphasizes on the shifting relationships between self and other. The other
appears to be the individual who is outside the system who is disadvantaged by it. The other
cannot assert that the law is on their side within the current situations since the system
alienates them. Post modernism recognises that they have an equal claim to consideration
since their assertions are no less valid than those who are advantaged by the system or no less
valid than even the views of lawyers, judges, or politicians. Post-modernist concern with the
other has definitely helped to give an impetus to the claims of disadvantaged groups like
women, blacks, and tribal within law. However, to what extent and in what manner the law
should seek to accommodate their claims is not clearly bought out in post-modernist writings.

Even a statement of fact, the postmodernists would argue, is a statement of opinion,

because there is no true meaning to the concept of chair. Even what appears to be a factual
statement is, thus, open to debate and deconstruction.
Post modernism -
De-construction and
Re-construction

Re-construction ideas - are given by Santos.

Santos recognises that modern men and women are configuration or networks of
different subjectivities. He depicts six prevalent structural subjectivities arising out of six
dominant structural places found in contemporary capitalist society. They are the
household place,
workplace,
citizen place,
world place,
market place and
community place.

These structural places are the loci of major power forms circulating in our society.

Household Place - In the household place, the contradiction or competition is between the
dominant paradigm of patriarchal family and the emergent paradigm of the co-operative
domestic community.

Patriarchial Family vs Co-operative domestic community

Work Place - In the workplace the competition is between the dominant paradigm of
capitalist expansionism and the emergent paradigm of eco-socialist sustainability which
involves free associations of producers geared towards the democratic production of use-
values without degrading nature.

Capitalist expansionism v. Eco-socialist sustainability

Citizen Place - In the citizen place, competition is between authoritarian and radical
democracy.

Authoritarian v. Radical democracy

In radical democracy, the democratic process is furthered by the transformation of the

relations of power into relations of shared authority, despotic law into democratic law and
regulatory commonsense into emancipator common sense.

Market Place -The contradiction in the market place is between the paradigm of
individualistic consumerism and the paradigm of human needs.

Individualistic Consumerism vs. Human needs

Community place - In the community place, the competition is between fortress

communities and amoeba community.

Fortress Communities v Amoeba community

World Place - In the world place, the competition is between the paradigm of unequal
development and exclusive sovereignty and the paradigm of democratically sustainable
development and reciprocally permeable sovereignty.

Unequal development and exclusive sovereignty vs Democratically sustainable

development and reciprocally permeable sovereignty.

Santos is optimistic that the emergent paradigm will result in the emergence of a new system
of international and transnational relations guided by the principles of cosmopolitanism and
common heritage of mankind. Santos has used opposing paradigms of the structures of
modernity which certainly provides an insight into a better alternative.

Critics of Post-Modernism

Philosopher Noam Chomsky has argued that postmodernism is meaningless because it adds
nothing to analytical or empirical knowledge. He asks why postmodernist intellectuals won't
respond like people in other fields when asked:

"Seriously, what are the principles of their theories, on what evidence are they based, what do
they explain that wasn't already obvious, etc? These are fair requests for anyone to make. If
they can't be met, then I'd suggest recourse to Hume's advice in similar circumstances: to the
flames."

Dawkins - It has been suggested that the term "postmodernism" is a mere buzzword that
means nothing.

Kaya Yilmaz - Kaya Yilmaz defends the lack of clarity and consistency in the term's
definition. Yilmaz points out that because the theory itself is anti-essentialist and anti-
foundationalist it is fitting that the term cannot have any essential or fundamental meaning.
Postmodernism relies on concrete experience over abstract principles, knowing
always that the outcome of one's own experience will necessarily be fallible and relative,
rather than certain and universal. Postmodernism is "post" because it is denies the existence
of any ultimate principles, and it lacks the optimism of there being a scientific, philosophical,
or religious truth which will explain everything for everybody - a characteristic of the so-
called "modern" mind. The problem with Postmodernism is that it leaves us without absolute
foundations for determining absolute truths about how we should think and live wisely on
earth. In conclusion postmodernism and modernism are somewhat intertwined and its in
reality very hard to draw distinct line between the two theories except for the fact that the
later evolved from the former.

Characteristics of Post Modernism

The following principles appear elemental to postmodernists:

1. There is no absolute truth - Postmodernists believe that the notion of truth is a

contrived illusion, misused by people and special interest groups to gain power over
others.
2. Truth and error are synonymous - Facts, postmodernists claim, are too limiting to
determine anything. Changing erratically, what is fact today can be false tomorrow.

3. Self-conceptualization and rationalization - Traditional logic and objectivity are

spurned by postmodernists. Preferring to rely on opinions rather than embrace facts,
postmodernist spurn the scientific method.

4. Traditional authority is false and corrupt - Postmodernists speak out against the
constraints of religious morals and secular authority. They wage intellectual
revolution to voice their concerns about traditional establishment.

5. Ownership - They claim that collective ownership would most fairly administrate
goods and services.

6. Disillusionment with modernism - Postmodernists rue the unfulfilled promises of

science, technology, government, and religion.

7. Morality is personal - Believing ethics to be relative, postmodernists subject

morality to personal opinion. They define morality as each persons private code of
ethics without the need to follow traditional values and rules.

8. Globalization Many postmodernists claim that national boundaries are a hindrance

to human communication. Nationalism, they believe, causes wars. Therefore,
postmodernists often propose internationalism and uniting separate countries.

9. All religions are valid - Valuing inclusive faiths, postmodernists gravitate towards
New Age religion. They denounce the exclusive claims of Jesus Christ as being the
only way to God.

10. Liberal ethics - Postmodernists defend the cause of feminists and homosexuals.

11. Pro-environmentalism - Defending Mother Earth, postmodernists blame Western

society for its destruction.
HISTORICAL SCHOOL OF JURISPRUDENCE

In the words of salmond - "That branch of legal philosophy which is termed historical
jurisprudence is the general portion of legal history. It bears the same relation to legal history
at large as analytical jurisprudence bears to the systematic exposition of the legal system. It
deals,
In first place, with the general principles governing the origin and development of
law, with the influences that affect the law
In Second place, it deals with the origin and development of those legal conceptions
and principles which are so essential in their nature as to deserve a pace in the
philosophy of law.

1. Historical jurisprudence is the history of the first principles and conceptions of legal
system.
2. Historical jurisprudence deals with law as it appears in its various forms at its several
stages of development.
3. It is the connection between the modern and primitive conception of law.
4. It takes up custom as enforced by the community and traces its development.

Prof Dias points out that the Historical School arose more or less contemporaneously with
the Analytical school at the beginning of the 19th Century and should be regarded as a
manifestation of the reaction against natural law theories. The reaction against natural law
theories provided a rich bed in which the seeds of historical scholarship took root and spread.

Montesquieu :- According to Sir Henry Maine, Montesquieu was the first jurist who
followed the historical method. He made researches into the institutions and laws of various
societies and came to the conclusion that "laws are the reaction of climate, local situations,
accident or imposture".
Hugo - The view of Hugo was that law, like language and manners of the people, forms itself
and develops as suited to the circumstances. The essence of law is its acceptance, regulation
and observance by the people.
Burke - Burke laughed at an attempt to deduce a constitution from abstract principles and
pointed out that it could only be the result of a gradual and organic growth.

Savigny - The issue whch caused the expounding of the thesis of Historical school was the
problem of the codification of law in Germany which had arisen due to the political changes
brought about by the Napoleonic wars. During the period of French domination, the cod
Napoleon remained in force in many parts of Germany. After the restoration of the national
government, the problem of codification drew the attention of the people. Many jurists were
in favour of promulgating a new code incorporating the best points from foreign kaws as
neither the old code nor the customary laws were adequate enough to fulfil and suit the
present needs and codification of the people of germany. The main supporter of codification
was Thibaut who was inspired by the code of napoleoan and impressed by the movement for
german national unification. He was apposed by Savigny who had knowledge of the defects
of contemporary codes. His view was that a code was not a suitable instrument fo rhte
development of German law at that time. His contention was that law is a product og the lives
of the people and manifestation of their spirit. The source of law is the general consciosuness
of the people and cannot be borrowed from outside.

Historical jurisprudence came to prominence during the German debate over the proposed
codification of German law. This term was first coined by Professor Savigny, in his Book
On the Vocation of Our Age for Legislation and Jurisprudence in the year 1814 against the
proposal on codification of german laws. Savigny in his pamphlet Vocation of Our Age For
legislation and jurisprudence where he spoke against the Thibaut theory of necessity of a
General code for germany (1814) and he invented a whole new school of Jurisprudence as
Historical School. Though this process delayed the codification of German law, but it gave
the entire new phase to the German Jurisprudence which boosts their political Structure.
Savigny was not opposing to the development of law in germany, but he was opposed to the
process by which the law is developed. He thinks that the development should be on the basis
of the historical knowledge and not by the arbitral legislation. The historical school of jurists
was founded by Friedrich Karl von Savigny (17791861)

Savigny supported that, the meaning and content of law would be analysed through
research into their historical origins and mode of transformation.
Prof. Savignys main idea behind the theory was that, Law is an expression of will of
the people and it doesnt come from the deliberate legislation and it gradually
develops as the consciousness of the nation arises.
Historical research was necessary for understanding and reform of the existing law.
His warning was that legislators should look before they leap into reform.
Laws grows with the growth and strengthens with the strength of the people, and
finally dies away as the nation loses its nationality.

His main works

1. In 1803 appeared his first major work, The Law of possession, in which he traced the
process by which he original roman doctrines of possession had developed into the
doctrine and actions prevailing in contemporary europe.
2. The History of Roman Law in the middle ages, he analysed roman and local laws.
3. The essence of his thesis is to be found in his work of 1814 entitled "On the vacation
of our time for legislation and jurisprudence".
4. He studied the course of the development of roman law from ancient times till its
existing state as the foundation of civil law of contemporary europe. That led him to
 the hypothesis that all law originated in custom and only much later was created by
juristic activity.

SAVIGNY - VOLKSGEIST
1. According to savigny, the nature of any particular system of law was a reflection of
the spirit of the people who evolved it. This was later characterised as the Volksgeist
by Putcha, a disciple of Savigny.
2. Savigny used Volksgeist, spirit of the people, to designate what he regarded as the
source of law.
3. The broad principles of the system are to be found in the spirit of the people and they
manifest themselves in customary rules. Law is a matter of conscious growth. Any
law-making should follow the course of historical development. Custom not only
precedes legislation but it is superior to it. Legislation should always conform to the
popular consciousness.
4. Savignys theory stated that law is the product of Volksgeist, which contains the
whole history of the nations Culture and which also reflects the inner convictions of
the society which are deep rooted in the societys experience. So, Volksgeist drives
law slowly to the development.
5. In a simple sense, Volksgeist is a general and common perception of the people. The
concept of Volksgeist in German legal science states that, law can only be understood
as a manifestation of the spirit and perception of the people.
6. The crux of Volksgeist was that a nations legal system is greatly influenced by the
historical culture and traditions of the people and its growth was located in their
acceptance. Hence, law was developed as a response to the impersonal powers to be
found in the peoples national spirit and not by the arbitrary act of the legislation.

Savigny rejected natural law. To him ,a legal system was a part of the culture of a people.
Law was not the result of an arbitrary act of a legislator but developed as a response to the
impersonal powers found in the peoples national spirit. Law is the product of the volksgeist,
the national spirit or the genius of the people.
Savigny succesfully used his volksgeist theory to reject the french code and the move
to codify law in germany. The result was that German law remained, until 1900, Roman law
adapted to german conditions with the injection of certain local ideas.
Nations and their law go through three developmental stages :-
1. Political stage - A the outset of a nation, there is a "political" element of law. There are
principles of law which are not found in legislaton but are a part of "national
convictions". These principles are implicitly present in formal symbolic transactions
which command the high respect of the population, form a grammar of the legal
system of a young nation and constitute one of the system;s major characteristics"/
2. Technical stage - In its middle period, law retains this :political" element to which is
added the "technical" element of juristic skill. This period is the apogee of a people's
legal culture and is the time when codification is feasible.
 3. Loss of national identity - With the decline of a nation, law no longer has popular
support and becomes the property of a clique of experts. In due courde of time, even
their skill decays. Ultimately, there is a loss of national identity.

CRITICS OF CONCEPT OF VOLKSGEIST

Prof Dias
who observed that the idea of Volksgeist suited the nature of Germans, but it was
acceptable in a very limited sense.
He also points out that effect of Volksgeist is very limited and in modern times it only
plays a role of notifying the laws rather than creating it
the view of Savignys Volksgeist was that it only formulates undeveloped principles
of a legal system and could not provide all the necessary details.
He treated it as a discoverable thing but eve in a small group, people hold different
view on different issues and "the spirit" does not exist.
He further points out that the volksgeist theory minimises the influence which
individual have exercised upon legal development. There are always men who by
their superior genius are able to give legal development new direction.
The view of Dias is that today the volksgeist is of little or no relevance as many
existing laws have come from "outside". Savigny's theory of Volksgeist makes sense
only to a limited extent in a continuum.
Dias maintains that many institutions have originated not in a Volksgeist but in the
convience of a ruling oligarchy.
The opponents of savigny pointed out that if this theory of Volksgeist wa staken
literally, that would have thwarted the unification of germany permanently by
emphasising the individuality of each separate state of germany and by fostering a
parochial sense of nationalism.
Savigny's veneration for roman law led him to advance doubtful propositions. There
was a strict adherence to the doctrine of privity of contract in roman law and the law
of negotiable instruments was opposed to it. Hence savigney condmened negotiable
instruments as "logically impossible". This was so although the feelings of the
commercially minded people were strongly in favour of negotiable instruments. The
weakness of savigny's approach was due to the fact that he venerated past institutions
without regard to their suitability to the present.
The another weakness of the thesis of savigny was according to him, the only persons
who talked of the Volkgesit were academic jurists who were not versed in the
practical problems of legal administration.
The view of savigny was that legislation was subordinate to suctom and at all times it
should conform to the Volkgeist. Thus it undermines the need of legislation.
Another argument was that there were matters on which there was no Volksgeist and a
codification might introduce new and unadaptable provisions and that would add to
the prevailing difficulties.
Lord Lloyd also points that savigny underrated the significance of legislation for
modern society.
 Another criticism against savigny is that he was "so occupied with the source of the
law that he almost forgor the stream". He overlooked the forces and factors which
influence and determine the growth of law.

In case of Meera Kumari Dhungana v. His Majestys Government Ministry of Law, Justice
and Parliamentary affairs and others (N.K.P.2052(462). It was discussed that, Law has a
prodigious relationship with the society and each and every society is govern by certain
norms and principles. Here the Supreme Court mentioned that, if any law created by the
legislation and if it inflicts the normal tradition of the people then it will create chaos in the
society. It clearly means that law should not be introduced in such a way so as to change the
norms of people at once which have been followed by them since a long time. Hence, it
clarifies that law should be in consistency with the customs and traditions of people and any
law reform or amendment in law should be done with due regards to the sentiments and
norms of society in order to bring sustainable and peaceful change in the society. Hence,
Supreme Court in the present case rightly analysed the relation between social spirit and law.
And today this change is well accepted and has introduced a new standard in the Nepalese
legal system. So by this we can see that in this case the Supreme Court total focus on the
aspect of the spirit of the people so that the stability and harmony would be maintained in the
society.

In todays Scenario, always it is not the peoples will which matters. In order to build law and
order in the society, an act made by the legislature is must. There is not only legislator who
creates law, but also the judiciary who plays a crucial role in defining law in the present era.
So in todays world both legislator and people should coordinate with each other to create a
better law for the society

In Volksgeist, Savigny put over emphasis on the customs and traditions of the community and
completely neglected the role of legislature. We cannot deny that Custom is not the source of
law, but it cannot be the only source of law. In India, the initial practices of following the
customs was existed in the ancient period but that was also corrected during the development
of time and those constraints was removed from the society like: Sati Pratha, child marriage,
discrimination between man and woman etc.

To overcome this problem the legislators should create such law which is created for the
benefit of both legislation and society. Like in Hindu Succession Act, 1956, amendment was
made by adding daughter as a coparcenary in the Hindu Joint Family property. So these kinds
of laws are required in todays under which no ones right can be hindered so the goals can be
achieved very easily. We cannot say that the customs should completely dispose of from the
society, but it should be properly framed and structured, so that the right of the people cannot
be infringed.

Sir Henry Maine - Maine made a comparative study of the various legal systems and traced
the course of their evolution. According to him, the law develops through four stages.
 1. In the first stage - law was made byt he commands of the ruler beleived to be acting
under divine inspiration, as the inspiraion by the Themistes in the poems of Homer.
2. In the second stage, the commands crystallise into customary law.
3. in the third stage - the knowledge and adminstration of customs goes into the hands of
a minority, usually of a religious nature, due to the weakening of the power of original
law-makers.
4. The fourth stage was the time of codes. Law is promulgated in the form of a code, as
solan's attic code or the twelve tables in the rome.
Societies which do not progress beyond the fourth stage which closes the era of spontaneous
legal development are called static societies by maine.
"The movement of progressive societies has hitherto been a movement from status to
conttract".
LEGAL REALISM
Realism is the anti-thesis of idealism. The realist movement in United States
represents the latest branch of sociological jurisprudence which concentrates on decisions of
law courts. The realists contend that law has emanated from judges; therefore law is what
courts do and not what they say. For them, Judges are the law- makers. However, modern
Realism differs from sociological school as unlike the latter, they are not much concerned
about the ends of law but their main attention is on a scientific observation of law and its
actual functioning. It is for this reason that some authorities have called Realist approach as
the left wing of the functional school. The contention of realists is that judicial decisions are
not based on abstract formal law but the human aspect of the Judge and the lawyer also has
an impact on courts decisions. Some quarters feel that realist movement in the United States
should not be treated as a new independent school of jurisprudence but only a new
methodology to be adopted by the
sociological school.
According to Friedmann, the mental founders of the Realist movement in America
were Oliver Windell Homes, Gray, Cardozo and Jerome Frank who emphasized on functional
and realistic study of law not as contained in the statute or enactment but as interpreted and
laid down by the courts in their judicial pronouncements.
Also called Legal Realism, this is a school of legal thought that advocates a less abstract and
more realistic, practical and pragmatic approach to the law by taking into account customary
practices and the circumstances surrounding the particular transaction.

Like Sociological Jurisprudence, this theory also points the gap between 'law in
books' and 'law in action'.

Law is not what Judges say but what judges actually do when determining cases.

Law is uncertain until it is decided by a judicial action.

This school believes that law is a product of judicial interpretation.

Justice Oliver Wendall Holmes is considered as the father of this theory.

Like Positivist Theory, this theory also sees Law as the will of the state but is made
through the medium of Courts.

Patton calls this school as the left wing of the functional school.

BASIC FEATURES OF REALIST SCHOOL

 Realism denounces traditional legal rules and concepts and concentrates more on
what the courts actually do in reaching the final decision in the case before them. In strict
sense of the term, realist define law as generalized prediction of what the courts will do. The
main characteristic features of realist jurisprudence as stated by Goodhart are as follows :--
(1) Realists believe that there can be no certainty about law as its predictability depends
upon the set of facts which are before the court for decision.
(2) They do not support formal, logical and conceptual approach to law because the Court
while deciding a case reaches its decision on emotive rather than logica grounds.
(3) They lay greater stress on psychological approach to the proper understanding of law as it
is concerned with human behavior and convictions of the lawyers and Judges.
(4) Realists are opposed to the value of legal terminology, for they consider it as tacit method
of suppressing uncertainty of law.
(5) They prefer to evaluate any part of law in terms of its effects

1. Realists dont give any importance to laws enacted by legislature. And they uphold
only judge-made law as genuine law. A great role of judges understanding about law,
society and also their psychology affect any judgment given by them. At the same
time, in a same case applying same law two different judges give the different
judgments.
2. Realism denounces traditional legal rules and concepts and concentrates more on
what the courts actually do in reaching the final decision in the case.
3. In strict sense, realists define law as generalized prediction of what the courts will do.
4. Realists believe that certainty of law is a myth and its predictability depends upon the
set of facts which are before the court for decision.
5. It presupposes that law is intimately connected with the society and since the society
changes faster than law so there can never be certainty about law.
6. They do not support formal, logical and conceptual approach to law. The realist
school evaluates any part of law in terms of its effect.
7. Jerome Frank has stated, Law is what the court has decided in respect of any
particular set of facts prior to such a decision, the opinion of lawyers is only a guess
as to what the court will decide and this cannot be treated as law unless the Court so
decides by its judicial pronouncement. The judges decisions are the outcome of his
entire life history.
 AMERICAN REALISTS

American Realism = Analytical positivism and sociological approaches . It is positivist in that

it first considers the law as it is. On the other hand, the law as it stands is the product of many
factors. In as much as the realists are interested in sociological and other factors that
influence the law. Their concern, however, law rather than society.
Julius Stone calls the realist movement a gloss on the sociological approach

MAIN JURISTS OF AMERICAN REALIST SCHOOL & THEIR THEORIES:

a) JUSTICE OLIVER WENDEL HOLMES: BAD MAN THEORY:

1. The seeds of realism were sown by Justice Holmes.
2. He said that Law is not like mathematics. Law is nothing but a prediction. Holmes vie
of law as "prediction" placed both litigation and the professional lawyers in the centre
of the legal stage.
3. "The law embodies the story of a nation's development through many centuries and it
cannot be dealt with as if it only contained the axioms and corollaries of a book of
mathematics" - Oliver Holmes
4. According to him, the life of law is logic as well as experience. The real nature of the
law cannot be explained by formal deductive logic.
5. Judges make their decisions based on their own sense of what is right. In order to see
what the law is in reality, he adopted the standpoint of a hypothetical Bad man
facing trial. Therefore his theory is known as Bad Man Theory. This theory says that a
bad man successfully predicts the actual law than other people. Holmes said that law
should be looked from bad mans perspective.
6. On the basis of this prediction Holmes defined the law as, Prophecies (ability to
predict) of what the court will do in fact and nothing more pretentious.

b) JUSTICE GRAY:
John Chipman Gray only exhibited limited factors in common with the realists. His approach
was certainly as court-oriented as the realists. For Gray the law was simply what the court
decided. Everything else, including statutes, were simply sources of law. He said, The law of
the State or of any organized body of men is composed of the rules which the courts, that is,
the judicial organs of that body, lay down for the determination of legal rights and duties.

c) KARL N. LLEWELLYN: A LAW JOBS THEORY:

 Karl Llewellyn was a professor of law at the Columbia University. He confessed that there is
nothing like realist school instead it is a particular approach of a group of thinkers belonging
to the sociological jurisprudence. According to Llewellyn realism means a movement in
thought and work about law. Karl Llewellyn outlined the principle features of the realist
approach. Which are as follows:-
1. There has to be a conception of law in flux and of the judicial creation of law.
2. Society changes faster than law, so there is a constant need to improve the law.
3. There has to be a temporary separation between is and ought for the purpose of study.

Karl Llewellyn described the basic functions of law as law-jobs.[9] Law is an institution
which is necessary in society and which is comprised not only of rules but also contains an
ideology and a body of pervasive and powerful ideals which are largely unspoken, largely
implicit, and which pass unmentioned in the books. Law has jobs to do within a society.
These are[10]:
i. The disposition of the trouble case: a wrong. A grievance, a dispute. This is
the garage-repair work or the going concern of society with its continuous
effect upon the remarking of the order of society.
ii. The preventive channeling of conduct and expectation so as to avoid
trouble, and together with it, the effective reorientation of conduct and
expectations in similar fashion.
iii. The allocation of authority and the arrangement of procedures which mark
action as being authoritative; which includes all of any constitution and
much more.
iv. The positive side of laws work is the net organization of society as a
whole so as to provide integration, direction and incentive.
v. Juristic method to use a single slogan to sum up the task of handling the
legal materials and tools and people developed for the other jobs to the end
that those materials and tools and people are kept doing their law-jobs, and
doing them better, until they become a source of revelation of new
possibility and achievement.

d) JEROME FRANK: FATHERS SYMBOL THEORY:

Frank preferred to call himself a "constructive legal sceptic" rather than a realist. His classic
work, Law and the modern mind presents a very close examination of judicial process
and is full of practical illustrations. His thesis is that law is uncertain or certainty of law is a
legal myth. He exploded the myth that law is continuous, uniform, certain and invariable and
asserted that the judges do not make the law, instead they discover it. Frank observes that a
judges decisions are the outcome of his entire life history. His friends, his family, vocations,
schools, religion, all these factors are influential.

Frank accordingly divided realists into two camps, described as

1. rule skeptics and
2. fact skeptics.
 The rule skeptics rejected legal rules as providing uniformity in law and tried instead
to find uniformity in rules evolved out of psychology, anthropology, sociology,
economics, politics etc.
The rule skeptics avoided that criticism by saying that they were not deriving
purposive ought but only predictions of judicial behavior analogous to the laws of
science. Frank called this brand of realism the left-wing adherents of a right-wing
tradition, namely, the tradition of trying to find uniformity in rules.
The fact skeptics rejected even this aspiration towards uniformity. He abandoned all
attempts to seek rule-certainty and pointed to the uncertainty of establishing even the
facts in trial courts. It is impossible to predict with any degree of certainly how
fallible a particular witness is likely to be, or how persuasively he will lie.

CRITICISM OF AMERICAN REALIST SCHOOL:

1. The realist approach to jurisprudence has evoked criticism from many quarters. The critics
allege that the exponents of realist school have completely overlooked the importance of
rules and legal principles and treated law as an assemblage of unconnected court decisions.
Their perception of law rests upon the subjective fantasies and life experience of the judge
who is deciding the case or dispute. Therefore there cant be certainty and definiteness about
the law. This is indeed overestimating the role of judges in formulation of the laws.
Undoubtedly, judges do contribute to law-making to a certain extent but it cannot be forgotten
that their main function is to interpret the law.
2. Another criticism so often advanced against realists is that they seem to have totally
neglected that part of law which never comes before the court. Therefore it is erroneous to
think that law evolves and develops only through court decisions. In fact a great part of the
law enacted by legislature never comes before the court.
3. The supporters of realist theory undermine the authority of the precedent and argue that
case law is often made in haste, without regard to wider implications. The courts generally
give decisions on the spot and only rarely take time for consideration. They have to rely on
the evidence and arguments presented to them in court, and do not have access to wider
evidence such as statistical data, economic forecasts, public opinion, survey etc.
4. Realist school has exaggerated the role of human factor in judicial decisions. It is not
correct to say that judicial pronouncements are the outcome of personality and behavior of
the judges. There are a variety of other factors as well which has to take into consideration
while reaching his decisions.
5. The realist theory is confined to local judicial setting of United States and has no universal
application in other parts of the world like other schools of jurisprudence.
SCANDINAVIAN REALISTS
Scandinavian realism denotes the legal philosophy of a group of scholars who have all been
strongly influenced by Axel Hagerstrom and his critical philosophical writings. They all agree
in denying the possibility of a science of justice or values.

The Scandinavian Realist Moment was contributed by Hagerstorm, Lundstedt,

Oliverona an Alf Ross.

Like American Realists, they too are concerned to explain the law as it is but unlike
them, they are not bothered about the functioning of the Courts.

Hagerstrom: Legal concepts are meaningless unless their interpretation is associated

with remedies and other legal procedure.

Lundstedt: Law is simply the facts of social existence, all else is illusion. Feelings of
justice do not direct the law, they direct the law.

Oliverona: Our morality is formed by law and not the other way round.

Alf Ross: Jurisprudence is empirical science and acknowledge the normative

character of law.

Features

Reality can be discovered and analyzed by investigating of the fundamental facts of

the legal system. Metaphysical speculation should be rejected.

Jurisprudence must be a natural science based on empiricism. Assertions without

proof are non-sense. Hence, Jurisprudential propositions which cannot be verified are
unacceptable.

Morality is created by law. Law is not created by morality.

Natural law is an illusion and jurisprudential arguments derived from it are

unacceptable.
 Law is determined by social welfare which includes minimum requirements of
material life, security of person, property and freedom of action.

Law can be understood in terms of psychological responses to groups of stimuli.

Values such as 'goodness' are no more than the embodiment of reactions expressing
approval of a stimulus.

AXEL HAGERSTROM

1. He is known as the father of scandinavian realits.

2. He stated that metaphysical concepts are fake and we dont have justice and rights. In
his motto "Praeterea censeao metaphysicam esse delendam" (Moreover I propose that
metaphysics must be destroyed). His antimetaphysical view rejects the existence of a
meta-physical reality or supernatural world beyond the existence of the physical
reality or natural world.
3. Hgerstrm is committed to the realistic view that concepts are embedded in the facts
of physical reality that make an impact upon the minds of human beings using their
senses of sight and touch to arrive at knowledge of reality to be expressed in
meaningful words in terms of concepts that can be used to express judgements since
the truth of a judgement is the reality of the thing.
4. Hagerstorm appoints to the following method. He first reviews the attempts that have
been made to discover the empirical basis of a right. He dismisses each such attempt
as unsuccessful: the factual basis which we are seeking cannot be found, either in
protection guaranteed or command issued by an external authority. He concludes that
there are no such facts. The idea has nothing to do with reality: its content is some
kind of supernatural power with regard to things and persons. Hagerstorm next sought
a psychological explanation and found it in the felling of strength and power
associated with the conviction possessing a right. One fights better if one believes
that one has right on ones side. It is clear from his writing that, though rights may
not exist, they are useful tools of thought. He rejected the notions of right-duty
relationship and the theory of legal obligations because they do not have any objective
basis. For him these are merely psychological notions.

KARL OLIVECRONA
1. He was a pupil of Axel Hagerstorm, the spiritual father of Scandinavian legal realism
2. His most striking work on legal theory, the first edition of his book Law as Fact in
1939, he tried to explain the relation between moral standards and law.
Professor Olivecronas views about Scandanavian realism have been appreciated for their
practical implications.
1. He emphasized the study of law as a social fact.
2. According to him, law is nothing but a set of social facts.
3. He rejected the view that laws are a command or an expression of the will of the State
and argued that they are independent imperatives issued by constitutional agencies
 of the State from time to time and they operate in the minds of the judge while
reaching a particular decision.
4. For him, there is no such thing as the binding force of law; it is a myth. For instance, a
person may break the law and go undetected yet no one would say that the law is not
binding on him.
5. In his opinion, the notion of binding force of law only exists in the mind of a person
because of the psychological pressures w
6. ich exert an influence on his conduct and motivates him for regularity of behavior
which is an attribute of a legal system.
7. Olivecrona propagated the view that law is a set of independent imperatives
prescribed by law agencies, such as Courts, Parliament, etc. producing a set of social
facts based on the application of organized force of the state.
8. Law has "binding force" in so far as it is valid. An invalid law is not binding. There is
no such thing as " the binding force behind law".
9. Oliver crona rejects the idea of "the binding force of law" as olludory and
meaningless. The binding force of law is a mirage of language and it exists only as an
idea in individual minds.

ALF ROSS
He dealt about the concept of 'valid law'. According to Ross, validity of law lies in the
predictability of decisions.
In his view, laws are the legal norms in the form of directives addressed to the courts.
These norms of conduct, i.e., laws may be of two types, namely
i) norms of conduct which deal with behavioural aspect of law; and
ii) norms of competence or procedure which prescribe the mode of procedure to be followed
for determining the norms of conduct.
Ross pointed out that while deciding a case, the actual past behaviour of the judge as
well as the set of ideals by which he motivated must be taken into account in order to
determine the predictability of law in future.

LUNDSTEDT

The most striking feature of Lundstedts realism is assertion that law at any time, place and
society is determined by social welfare which is the guarding motive for legal activities.
Therefore, Judges should think in terms of social welfare and in terms of rights and duties.
The sense of security is the main force behind social welfare and therefore, Lundstedt was
inspired to extend the principle of strict liability in matters relating to disputes concerning
torts, contract and criminal law with a view to preventing disruption of the society.

Lundstedt regarded law simply as the fact of social existence in organized groups
which makes the co-existence of people in society possible. He rejected the traditional
concepts of right or duty and asserted that law simply consists of rules about the application
of organized force. He observed that Judges should think in terms of social aims and
objectives and not rights or duties. He preffered to use the term social welfare and property,
freedom of action and protection of spiritual interests. In his view, social welfare strives to
attain a balance between all other competing interests without intrusion of set values.

LAW AS FACT
The Scandanavian Realist, resemble other modern schools in their positivist outlook in their
desire to eliminate metaphysics. For them law can be explained only in terms of observable
facts, and the study of such facts, which is the science of law, is, therefore, a true science like
any other concerned with facts and events in the realm of casuality. Thus, all such notions as
the binding force or validity of law, the existence of legal rights and duties, the notion of
property are dismissed as mere fantasies of the mind, with no actual existence other than in
some imaginary metaphysical world

Contribution of realist school of jurisprudence

1. The main contribution of realists to jurisprudence lies in the fact that they have
approached law in a positive spirit and demonstrated the futility of theoretical
concepts of justice and natural law.
2. Opposing positivists view, the realists hold that law in uncertain and indeterminable
in nature therefore; certainty of law is a myth.
3. As Frank Jerome rightly pointed out, realist school has sought to liberate the judges
from the enslavement of unduly rigid legal concepts and exorted them to take into
consideration the ground realities of social facts while deciding the cases.
4. According to Friedmann, realist movement is an attempt to rationalize and modernize
the law- both administration of law and the material for legislative change, by
utilizing scientific method and taking into account the factual realities of social life.
5. For Julius Stone, Realist movement is a gloss on the sociological approach to
jurisprudence. He considers realism as a combination of the positivist and the
sociological approach. It is positivist in the sense that it undertakes the study of law as
it is, and sociological, because it expects that law should function to meet the ends of
society. Thus in his view, realist school is merely a branch of sociological
jurisprudence and a method of scientific and rational approach to law.
6. Expressing similar views, Dr. Allen thinks that realist school is an improvised form of
the sociological jurisprudence.

Criticism against realism

1. Their perception of law rests upon the subjective fantacies and lifeexperience of the
Judge who is deciding the case or dispute. Therefore, there cannot be certainty and
definiteness about the law. This is indeed overestimating the role of Judges (court) in
formulation of the laws. Undoubtedly, judges do contribute to law-making to certain
extent but it cannot be forgotten that their main function is to interpret the law.
2. Realists have exaggerated the role of human factor in judicial decisions. It is not
correct to say that judicial pronouncements are the outcome of personality and
 behaviour of the judge. There are a variety of other factors as well which he has to
take into consideration while reaching hid decision Last but not the least, the realist
theory is confined to local judicial setting of United States and has no universal
application in other parts of the world. The Scandinavian jurist Olivecrona has,
however, accepted the universal validity of the nature of law.
3. The supporters of realist theory undermine the authority of the precedent and argue
that case law is often made in haste, without regard to wider implications. The
courts generally give decisions on the spot and only rarely take time for consideration.
They have to rely on the evidence and arguments presented to them in court, and do
not have access to wider evidence such as statistical data, economic forecasts, public
opinion, survey, etc

Realism in the Indian Context

1. The legal philosophy of realist school has not been accepted in the sub-continent for
the obvious reason that the texture of Indian social life is different from that of the
American life-style.
2. The recent trends in the public interest litigation which Professor Upendra Baxi
prefers to call as social action litigation have, however, widened the scope of judicial
activism to a great extent but the Judges have to formulate their decisions within
limits of constitutional frame of the law by using their interpretative skill.
3. This in other words, means that the judges in India cannot ignore the existing
legislative statutes and enactments. They have to confine their judicial activism within
the limits of the statutory law.
4. Besides, the doctrine of precedent which has no place in the realist philosophy, plays a
significant role in the Indian judicial activism within the limits of the statutory law.
Besides, the doctrine of precedent which has no place in the realist philosophy, plays a
significant role in the Indian judicial system inasmuch as precedents provide guidance
to the presiding judge about the existing position of the law in question. They are;
however, free to overrule the previous decision on the ground of inconsistency,
incompatibility, vagueness, change of conditions, etc. assigning reasons for their
deviation from the earlier ruling.
5. Thus the Indian legal system, though endows the judges with extensive judicial
discretion, does not make them omnipotent in the matter of formulation of law.
6. The legislative statutes and enactments, precedents and the rules of equity, justice and
good conscience are indispensable part of the judicial system in India.
In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to
the realists legal philosophy, it does lay great stress on the functional aspect of the law and
relates law to the realities of social life. Again, it refuses to accept the realists view that
Judge-made law is the only real law and other laws are worthless, but at the same time it
does not completely ignore the role of Judges and the lawyers in shaping the law. Thus it
would be correct to say that the Indian legal system has developed on the pattern of
sociological jurisprudence as evinced by the post-independence socio-economic legislation
but it considers doctrine of realism alien to Indian society which has a different life style and
social milieu.
Undoubtedly, the Indian Judges do have the liberty of interpreting law in its contextual and
social setting keeping in view the social, economic, political, cultural, historical and
geographical variations of the Indian society. The power of review and the doctrine of
overruling its earlier decisions have enabled the Supreme Court to effectuate the socio-
economic contents of the constitutional mandate through the process of judicial interpretation
and use of its inherent powers. Thus the Apex Court in Bengal Immunity Case overruled its
earlier decision in Dwarkadas v. Sholapur spinning & weaving Co. 2 and observed that the
Court is bound to obey the Constitution rather than any decision of the Court, if the decision
is shown to have been mistaken. Justifying its stand, the Court further observed that where a
constitutional decision affects the lives and property of the public and where the court finds
that its earlier decision is manifestly wrong and injurious to the public interest, it should not
hesitate to overrule the same.
Adopting a same line of approach, Justice P.B. Gajendragadkar, in Keshav Mills v. Income
Tax Commissione3 r observed that Supreme Court has inherent jurisdiction to reconsider and
revise its earlier decision if it does not serve the interest of public good.
In the case of Golak nath v. State of Punjab, 4 the Supreme Court speaking through Subba
Rao, CJ, (as he then was), observed:-
While ordinarily the Supreme Court will be reluctant to revise its previous decision, it is its
duty on the constitutional field to correct itself as early as possible, for otherwise the further
progress of the country and happiness of the people will be at a stake
The observations made by Justice K. Ramaswamy deserve a special mention in context of
realism in interpretation of the Constitution and the law of the land. To quote his words, he
observed:-
The Judge is the living oracle working in dry light of realism pouring life or force
into the dry bones of law to articulate the felt necessities of the time

There are a number of cases where the rules or laws are made by the judiciary. Some of the
following cases where Supreme Court played the role of law-maker are given as below:

In Hussainara Khatoon v. State of Bihar[18], the Supreme Court has held that speedy trial is
an essential and integral part of the fundamental right to life and liberty enshrined in Article
21. In Bihar a number of under trial prisoners were kept in various jails for several years
without trial. The court ordered that all such prisoners whose names were submitted to the
court should be released forthwith. Since speedy trial is being held to be a fundamental right
guaranteed under Article 21 of the Constitution of India. The Supreme Court considered its
constitutional duty to enforce this right of the accused person.

2 A.I.R. 1954 SC 119 (137

3 AIR 1965 SC 1616

4 air 1971 sc 1643

In Shri Ram Food and Fertilizer case[19], the Supreme Court directed the company,
manufacturing hazardous and lethal chemicals and gases posing danger to health and life of
workmen and people living in its neighborhood, to take all necessary safety measures before
reopening the plant.

In Ganga Water Pollution case[20], the petitioner sought the direction from the Supreme
Court restraining the respondents from letting out trade effluents into the river Ganga till such
time they put up necessary treatment plants for treating the trade effluents in order to arrest
the pollution of water in the said river.

In Parmanand Katara v. Union of India[21], the Supreme Court has held that it is a
paramount obligation of every medical (private or government) to give medical aid to every
injured citizen brought for treatment immediately without waiting for procedural formalities
to be completed in order to avoid negligent death.

In M.C. Mehta v. State of Tamil Nadu[22], it has been held that the children cannot be
employed in match factories which are directly connected with the manufacturing process as
it is a hazardous employment within the meaning of Employment of Children Act 1938.
There can, however, be employment packing process but it should be done in are away from
the place of manufacture to avoid exposure to accident. Every children must be insured for a
sum of Rs. 15,000/- and premium to be paid by employer as a condition of service.

Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare Forum v.
Union of India[23], the Supreme Court directed 162 tanneries in Tamil Nadu to be closed
because these were polluting the air and the water around the area where they were operating
and the water had been unworthy for drinking.

M.C. Mehta v. Union of India[24], with a view to preserve environment and control pollution
within the vicinity of tourist resorts of Badkhal and Surajkund the court directed the stoppage
of mining activities within two kilometer radius of these two tourist resorts.

In a significant judgment in Vishakha v. State of Rajasthan[25], the Supreme Court has laid
down exhaustive guidelines for preventive sexual harassment of working women in place of
their work until any legislation is enacted for this purpose.

CONCLUSION
The realism school is not considered as a school by many jurists and many thinkers. Some
criticize it saying that it is just a branch of sociological school. Scandanavian realism is
speculative in approach to legal problems, and it does not devote much attention to
psychological behaviour of Judges as the American realist do. It has empirical approach to
law and life alike American Realism and give more weight to the social effects of law with
emphasis on judicial decisions.
Difference between American and Scandinavian Realisms
According to Raymond Wacks, there are 3 differences between American and Scandinavian
realisms
AMERICAN REALISTS SCANDINAVIAN REALISTS
Americans are, in general pragmatic and Scandinavians launch a philosophical assault
behaviorist emphasizing law in action as on the metaphysical foundations of law
opposed to legal formalism
Americans are rule sceptics Scandinavians are metaphysics sceptics.
Americans are concerned with the work of Scandinavian jurisprudence scope is wider
the courts and their operation and it embraces the whole legal system.
Americans were more empirically minded Less empirical
than Scandinavians

FEMINIST JURISPRUDENCE

Blacks Law Dictionary defines jurisprudence as the philosophy of law, or the

science, which treats of (sic) the principles of positive law and legal relations.

Feminist Jurisprudence - A branch of jurisprudence that examines the

relationship between women and law, including the history of legal and social biases
against women, the elimination of those biases in modern law, and the enhancement of
womens legal rights and recognition in society.

"Feminist Jurisprudence is the analysis of law from the prespective of all women" - Catharine
Mackinnon.
The global idea of feminism refers to the belief that men and women deserve equality
in all opportunities, treatment, respect, and social rights. In general, feminists are people who
try to acknowledge social inequality based on gender and stop it from continuing. Feminists
point out that in most cultures throughout history men have received more opportunities than
women.
Feminists believe that women are oppressed simple due to their sex based on the
dominant ideology of patriarchy.
Feminist jurisprudence is a philosophy of law based on the political, economic, and
social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in
1960s.
Feminists believe that history was written from a male point of view and does not
reflect women's role in making history and structuring society. Male-written history has
created a bias in the concepts of human nature, gender potential, and social arrangements.
The language, logic, and structure of the law are male-created and reinforce male values. By
presenting male characteristics as a "norm" and female characteristics as deviation from the
"norm" the prevailing conceptions of law reinforce and perpetuate patriarchal power.

TRADITIONAL, OR LIBERAL, FEMINISM asserts that women are just as rational as

men and therefore should have equal opportunity to make their own choices. Liberal
feminists challenge the assumption of male authority and seek to erase gender based
distinctions recognized by law thus enabling women to compete in the marketplace.
"Society has a false belief that women are by nature less intellectually and physically capable
than men" - Tong
Liberal Feminism central core aspects are
Rationality,
Individual choice
equal rights
equal oppurtunities for women

Carol Gilligan, in her seminal work In a Different Voice (1982) believes that women bring to
social reality a distinctive voice and a moral conviction, the ethic of care, which is
relational, based on the values of connectedness, subjective emotion and non-violence. She
distinguishes this from the masculine mode, the ethic of justice, which relies on alternate
values of objectivity, rationality and emotional distance. Cultural feminists stress the need to
include women in decision making institutions to ensure the balance of interests and
more peaceful outcomes.

RADICAL FEMINISM
Like the liberal feminist school of thought, radical or dominant feminism focuses on
inequality. It asserts that men, as a class, have dominated women as a class, creating gender
inequality. For radical feminists gender is a question of power. Radical feminists urge us to
abandon traditional approaches that take maleness as their reference point. They argue that
sexual equality must be constructed on the basis of woman's difference from man and not be
a mere accommodation of that difference.
Radical feminism is a movement that believes sexism is so deeply rooted in society
that the only cure is to eliminate the concept of gender completely.
Radical feminists suggest changes, such as finding technology that will allow babies
to be grown outside of a woman's body, to promote more equality between men and
women. This will allow women to avoid missing work for maternity leave, which
radical feminists argue is one reason women aren't promoted as quickly as men. In
fact, radical feminists would argue that the entire traditional family system is sexist.
Men are expected to work outside the home while women are expected to care for
children and clean the house. Radical feminists note that this traditional dichotomy
maintains men as economically in power over women, and therefore, the traditional
family structure should be rejected.
 It is this sex-gender system that has created oppression and radical feminist's mission
is to overthrow this system by any possible means.
Catharine Mackinnon, a leading Radical feminist who propounded the dominance model to
explain oppression of the female, asserted that unless womens experience is critically
defined and communicated, the form and content of the law and the patriarchy it represents
will continue to prevail

CULTURAL FEMINISTS - The goal of this school is to give equal recognition to women's
moral voice of caring and communal values.
Cultural feminism emphasizes essential differences between men and women in terms
of biology, personality and behaviour. Women are seen to have different and superior virtues
that provide the foundation for a shared identity, solidarity and sisterhood. Since by nature
women are viewed as kinder and gentler than men, it follows that if women were in power,
the world would be a better place. In the 1960s and 70s, some women supported the idea of
forming separate women-only cultures.

SOCIAL FEMINISTS - Socialist feminism is a movement that calls for an end to

capitalism through a socialist reformation of our economy. Basically, socialist feminism
argues that capitalism strengthens and supports the sexist status quo because men are the ones
who currently have power and money. Those men are more willing to share their power and
money with other men, which means that women are continually given fewer opportunities
and resources. This keeps women under the control of men.

In short, socialist feminism focuses on economics and politics. They might point out
the fact that in the United States women are typically paid only $0.70 for the exact same job
that a man would be paid a dollar for. Why are women paid less than men for the same work?
Socialist feminists point out that this difference is based on a capitalist system.

socialist feminists believe that there is a direct link between class structure and the
oppression of women. Western society rewards working men because they produce tangible,
tradable goods. On the other hand, women's work in the domestic sphere is not valued by
western society because women do not produce a tangible, tradable good. This gives men
power and control over women. Socialist feminists reject the idea that biology predetermines
ones gender. Social roles are not inherent and women's status must change in both the public
and private spheres.

Socialist feminists like to challenge the ideologies of capitalism and patriarchy. Much
like the views of radical feminists, socialist feminists believe that although women are
divided by class, race, ethnicity and religion, they all experience the same oppression simply
for being a woman. Socialist feminist believe that the way to end this oppression is to put an
end to class and gender. Women must work side by side men in the political sphere. In order
to get anything accomplished, women must work with men, as opposed to ostracizing them.
There must be a coalition between the two and they must see each other as equals in all
spheres of life. In contrast to ideals of liberal feminism, which tend to focus on the individual
woman, the socialist feminist theory focuses on the broader context of social relations in the
community and includes aspects of race, ethnicity and other differences.

Kate Millet
1. Kate Millett important feminist of the twentieth century, in her book Sexual Politics
impressively lined up the historical argument for feminism that women ought to be
given equal treatment in society.
2. She describes the relation between the sexes as basically political. It is an
arrangement whereby one group of person is controlled by another.
3. She argues that for the establishment of patriarchal society, the status accorded to
women has been a demeaning one, that of the homemaker and chattel, and feels that
all basic sexual difference are cultural in origin.
4. Millett believes that patriarchy imposed strict fidelity and subservience on women
5. Millett thinks that one of the aims of freeing women is to free them from
immemorial subordination which in the process can bring us a great deal closer to
humanity.
6. Patriarchy is a central concept in Kate Millets The Sexual Politics, analyses the
institution of the family, and is identified as a key means through which mens
domination is achieved.
7. Thus, radical feminist perspective gives theoretical priority to two systems
capitalism and patriarchy in the explanation of patriarchy.

Catherine A. MacKinnon
1. Her works include "Toward A Feminist Theory of the State"
2. Catherine MacKinnon is a prolific writer from this perspective, who identifies that, as
a consequence of the pervasive male domination women cannot trust the present form
of the state, and the very notion of equality becomes questionable.
3. According to MacKinnon-
The state is in male in the feminist sense: the law sees and treats women the way
men see and treat women. The liberal state coercively and authoritatively constitutes
the social order in the interest of men as a gender- through its legitimating norms,
forms, relations to society, and substantive policies. The states formal norms replicate
the male point of view on the level of design.