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Comparative analysis of natural and

positivist law school

Submitted by
Tirunagiri pranav sai-17010324066
Division C, 2nd year, B.B.A L.L.B
Symbiosis Law School, Hyderabad
Symbiosis International University, Pune.
September, 2019

Under the guidance of


Prof.D. Ganesh kumar
Faculty incharge

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C E R T I F I C AT E

The Project entitled “Comparative analysis of natural and positivist law school” submitted to
the Symbiosis Law School, Hyderabad for Company Law II as part of internal assessment is
based on my original work carried out under the guidance of Prof.D.Ganeshkumar In the month
of September. The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Date:

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ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to ______________ for his/her
enlightening lectures __________. I would also like to express my sincere gratitude to our
teaching staff for guiding me the path towards gaining knowledge.

I would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well for their co-
operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project. I am grateful to some of my seniors/friends namely, ________________
for their incredible guidance and support.

Signature of the Candidate

Date:

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Introduction:

The ancient argument over the philosophy of natural law school and positivism is from the
scratch, not conceptual. The two ideas are parallel in their philosophical beliefs and
ideologies. The arguments over one another might be curtailed with technicalities and various
differences but preconceived notions influence over the choice of which is better than the
other. But either of the theories have been adopted in drafting many contemporary policies
and statutes across the globe, because of their adaptability. So the differences actually exist
only in background beliefs. The idea however has arosen from the subject of jurisprudence,
Law and justice have been studied in the ancient kingdoms of Rome and India, and since it’s
foundation it has evolved and keeps evolving to satisfy people’s demands. The first mentions
of jurisprudence were found in Dharmashastras which was a dialogue to understand the
difference between law and morality. In Rome, the idea of jurisprudence has evolved over
time in terms of academics. The study of jurisprudence has not only developed the academics
in the field of law but also gave new pathways in the subjects of political science, economics
and other social sciences. This development has also led to delivery of justice and in the
overall development of societies. Jurisprudence also helps in unwinding some of the most
complex legal problems to provide a more rational and efficient answer to these problems.
Jurisprudence is often considered as the study of law not just in knowing the rules but also in
understanding why those rules have existed in the first place. Jurisprudence academically
helps lawyers in interpreting the statutes and procedural aspects of law. It enhances the
perspective of law in the minds of jurists.

Common Law includes conviction. It includes the endeavored burden of qualities on


others and regularly the seizing of the coercive idea of law to accomplish this. There
are different potential structures the hypothesis can take and has taken, however all include
the faith in the regularizing quality of different theoretical standards perceiving human
worth on an individual premise, and this thus is connected to a solid prior
belief system. Additionally, a characteristic legal counselor will likely give a recognizably
extraordinary variant of the law from somebody else, particularly from a positivist, whose
very tries base on an endeavor to stay away from any plausibility of theory based esteem
impositionalism. There are, for present purposes, three potential types of common law
hypothesis. Right off the bat, the regularizing prescriptive: it is as yet conceivable that there
are individuals who accept or accepted that to the degree that laws struggle with

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characteristic law they are invalid. Such individuals could genuinely depict themselves as
common legal advisors, setting out the standards of characteristic law (the regulating) and
after that guaranteeing they supersede every single other type of commitment (the
prescriptive). In fact their convictions would frame the most flawless type of common law
hypothesis, unmixed with any perplexing hypothesis with regards to the idea of law itself. To
the degree that laws concurred with

Natural law:

Natural law would be substantial, yet getting their mandatory power from the
certainty that they were only recording what was at that point characteristic law. Such
amazing attestations appear to have 'the "supreme" Prince is a ruler who is above positive law
yet under common law and the
law of nations'. Also, the regularizing systematic: this is unquestionably progressively normal
and again includes the portrayal of the theoretical standards of common law in a regulating
sense, yet also perceives the power and contrast of lawful commitments. Over
this, it looks to break down and portray the nature and ambit of lawful commitments in
the light of the standards of characteristic law. Because of this subsequent perspective, the
standards of characteristic law are inconspicuously woven into the embroidered artwork of
the law by ideals of its definition. Be that as it may, to the degree that the examination
doubtlessly won't hold, the lawful commitments are perceived for their capacity versus the
State, and the scholar needs to depend on declaring the standardizing side of his proposition.
At long last, the standardizing: it is feasible for some reasonably to respect themselves
as normal legal counsellors in the event that they acknowledge the positivists' (or anybody
else's) lawful examination in toto, perceiving the power and separateness of legitimate
commitments as particular from the commitments emerging from their standardizing esteems,
while depicting the arrangement of common law goals to which it would be attractive for the
law to acclimate. They could declare that to the degree that the law (howsoever broke down)
contrasts from common law it is mistaken, however would at present remember it as the law
of the State for the motivations behind the native. This kind of normal legal counsellor would
along these lines not endeavour to portray the nature and ambit of the law or of legitimate
commitments, either certainly or on the other hand unequivocally, in the light of the
standards of common law, with the exception of the reasons of its assessment.

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In the event that the principal line was taken, at that point characteristic law and positivism
would include varying originations with regards to the wellsprings of commitments, maybe
mirroring a contrast among induction and objectivism. On the off chance that the third line
was the line taken then the main contrast between characteristic law and positivism would be
that characteristic attorneys hold their extra regulating convictions, and accordingly attempt
to accomplish their ideological goals through the law instead of through denning its
nature and ambit. Be that as it may, numerous characteristic legal counsellors have declared
more than this, and have characterized law and laws in very unmistakable ways; their
impositionalism saturates the law during its very definition and distinguishing proof. They do
imply, all things considered, to talk about characteristic laws.
In this manner the regularizing—investigative type of characteristic law is maybe the most
widely recognized. It includes the inconvenience of characteristic law esteems from inside
the framework and this burden works at various levels. At one level, most such speculations
of characteristic
law make (at any rate) the attestation that 'laws' which don't acclimate with the rest.

Positivist law school:

Positivism likewise implies convictions, yet in an alternate style. It is connected to a


conviction that law and non-legitimate regulating esteems should be viewed as being
independent, maybe for expository immaculateness and thusly for major philosophical and
additionally ideological reasons, or for those principal reasons unadulterated and
straightforward. Despite the fact that it is hypothetically conceivable that a positivist could
truly guarantee, when examining a specific (and practically novel) society, to be occupied
with simply
experimental depiction, in practically any general public there will be individuals who don't
think, talk or go about as though laws and non-legitimate regulating esteems are discrete.
Frequently, lawful commitments and good commitments are obscured. Hence any scholar

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who implies to break down such a general public, or who indicates to layout the general
nature of law inside or without the general public, should assess this. He will
need to gauge the different bits of proof and give more accentuation to a few
than others. The explanations behind doing this will be established in his experience
convictions. In the event that his hypothesis is just regularizing, or prescriptive, at that point
the fundaments surface unquestionably more clearly. In this way there are likewise three
potential kinds of positivist hypothesis for present purposes. Right off the bat, there is the
standardizing prescriptive: law should be viewed as being isolated from non-legitimate
standardizing values, and the ideal limits and
establishments of lawful commitments are then portrayed (the standardizing). To the degree
that there is a cover in the psyches of those inside the State or in the manner in
which commitments are forced, at that point it is wrong and is to be overlooked, regardless of
whether this position is widespread (the prescriptive). Besides, there is the standardizing—
explanatory or simply diagnostic, which can take
different structures. One probability is that the position is again portrayed in an
unique regularizing sense, and after that the nature and ambit of law and legitimate
commitments is dissected and portrayed in order to seem to adjust with this insofar
as is conceivable. To the degree that the realities obviously won't capitulate to this
treatment, the scholar can just perceive this situation and state the
regularizing side of his hypothesis. Notwithstanding, a second and almost certain probability
is that a positivist of this sort will just utilize the simply scientific, and renounce any
vital convictions with regards to the purposes behind his endeavoured investigation.'
Thirdly, the regulating, as in it just sets out the recommendation that
law and non-legitimate standardizing values should be viewed as being discrete, maybe
with justificatory thinking. The scholar could perceive that they were definitely not
thoroughly isolated in the brains of residents, yet would then state that for
philosophical as well as ideological reasons, they should be viewed as being so.
Once more, it would maybe be less common for a positivist to build up a hypothesis of this
type.

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Conclusion

The impact of such thoughts all through Hart's idea is self-evident. his idea
is entirely steady with them, particularly in his examination of standards. The
principle qualification emerging from his hermeneutical examination is his celebrated
differentiation between the interior and outside purposes of view, to be made any place social
principles are watched. The interior perspective is the one embraced by somebody
who makes proclamations in applying the standards of the framework which uncover a regard
for the guidelines, and who applies the principles in the manner they were expected to be
applied? It is additionally embraced by somebody who requests similarity with the principles
in such a style. Once more, it is received by somebody who scrutinizes deviation from the
rules and whose analysis shows a regard for the principles, or somebody who
rationally acknowledges the authenticity of analysis for such deviation in such a style.
The selection of a hermeneutical procedure can likewise be distinguished in Hart's
examination of the various principal legitimate ideas that he talks about. Consequently he
contends that the creation of law by sanctioning is something we can see completely
just by thinking about private methods for making specific legitimate commitments—by
means of promising. Or on the other hand, his examination of legal techniques for
understanding appears to be actually to recreate the more summed up dialog of such systems
given by either of them. and like the ancient roman dialogue Socrates had mentioned the
whole basis of an argument is not to prove one’s intellectual superiority over the other but to
become knowledgeable and expand their point of views