Category Archives: Jurisprudence

The Sociological School of Law

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The sociological school of jurisprudence is the synthesis not only of various juristic concepts but also of various other disciplines such as sociology, psychology, political science and economics.

The sociological school of jurisprudence studies the circumstances which create the legal institutions, and the relationship between those legal institutions and other social institutions which condition the scope and the operation of law. It does not focus on the ethical content of law.

In this school of thought, law is thought of as a social institution which serves collective social purposes and interests (as opposed to merely serving individual purposes and interests).

Some jurists have suggested that the relationship between positive law and the ideals of justice should also be studied by this school since it treats law as an instrument of social progress and by extension, it makes value judgments.

Salient Features

According to Roscoe Pound, the main features of the sociological school of jurisprudence are:
1. It emphasises the functional aspect of law and not its abstract contents.
2. It treats law as a social institution which is closely related to various other disciplines that have a direct impact on society.
3. It believes that human experience is the basis of law and that law is designed to meet dynamic social needs. (This is contrary to the emphases placed on ‘command’ by analytical positivism and on the past by the historical school of jurisprudence.)
4. It either adopts a pragmatic approach by treating law as an applied science which uses functional methods to investigate, analyse and solve social problems or else, it adopts a realistic approach and defines law primarily in terms of judicial precedents.

Also see The Theory of Social Engineering

The Natural Law Theory

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The basis of the Natural Law Theory is that there exist laws above man which can be discovered through reason and which are derived from objective moral principles and the essential nature of the world. The term ‘natural law’ has, however, been interpreted differently at different times. Early Christian writers scoured the scriptures to find these laws. However, in the 17th century, Grotius significantly secularised the concept of natural law by bringing reason into the picture.

What has always been agreed though is that it is not the creation of a temporal political authority. Other characteristics of natural law are that:
1. It is binding on all men everywhere at all times.
2. It is not written.
3. It advocates the equality of men.
4. The rule of law can be studied on an a priori basis.

Further, unlike other laws:
1. It is rigid, immutable, eternal and unalterable.
2. It is not enforceable by an external agency; there is no coercive sanction which backs it.
3. It is not the creation of an act of legislature, it is the result of the teachings of various philosophers.
4. It is unwritten and has not been made by men; all men have done is discover it.

Human law was considered to truly be law only insofar as it conformed to the principles of natural law on one hand. And on the other, law was considered to be law only if it was obligatory. Since natural law was considered higher than human law, any human law contrary to (the principles of justice and morality which are inseparably entwined with) natural law was not really considered to be law at all.

The problem, however, was discovering natural law itself. Enquiries into the realm of natural law began with the Greek philosophers as a challenge to the arbitrariness and the obligatory nature of law itself.

The Ancient Period

Socrates examined key moral concepts such as the Good and Justice. He said that ‘virtue was the most valuable of all possessions; the ideal life was spent in search of the Good. Truth lies beneath the shadows of existence, and that it is the job of the philosopher to show the rest how little they really know’. His pupil, Plato, said that justice lies in integrating reason and wisdom in man’s life.

It was noticed that while there are some occurrences, like the movements of heavenly bodies, were regulated by nature while others, like human etiquette, depended entirely on human choice and were arbitrary. This arbitrariness encouraged philosophers to question why law should be obeyed at all. However, Aristotle pointed out that there were some human laws which were common to all human States (such as the inviolability of heralds) and therefore, by extension, it was natural for humans to have those human laws.

The theory was further developed by the Stoic Philosophers.

Later, the Roman lawyer, Cicero, said that ‘true law is right reason in agreement with nature, it is of universal application, unchanging and everlasting’. It is created by the reason of intelligence of man whose ability to reason enables him to stand highest in creation.

The Medieval Period

The Medieval Period began around the 11th century and continued till the 13th century. It boasted mainly Christian theologians like Thomas Aquinas, Gregory and Ambrose.

St Thomas Aquinas divided law into:
1. The Law of God
2. Natural Law Natural law is created by man’s reason – the sole repository of mans’ social life – and governs human relations; his approach was empirical.
3. Divine/Scriptural law The church if the supreme authority to interpret divine law
4. Human Law It must be based on natural law and aim to do good.

Aquinas spoke of Eternal Law which, for all practical purposes, was the same as natural law. He said that everything is governed by God’s eternal law but man can choose whether or not to follow the law.

Christian theologians also managed to combine pre-Christian philosophy into their own theology with the aid of St Paul who had said that the conscience could arrive at moral truth unaided. For example, Aquinas wrote thirteen commentaries on Aristotle and resolved conflicts by assigning two different meanings – a Christian one and an Aristotelian one – to the same term and saying that such differences evidence true philosophical inquiry.

The Renaissance and the Age of Enlightenment

The Renaissance began around the 14th century and continued till the end of the 16th century. It was followed by The Age of Enlightenment. The dependence on God waned during this time and the authority of the Church diminished. By the 17th century, thanks to the work of scholars like Grotius, philosophers like Hobbes and Locke spoke of man’s rights and natural law in the same breath.

Thomas Hobbes (1588-1679) said that law is the dictate of right reason.

John Locke (1632-1704) said that natural law supported the individual against the absolute power of the sovereign. All government is a fiduciary trust which is dissolved when law is violated or power is abused. In his version of the social contract theory, individuals have inalienable natural rights and their duties are defined in terms of protecting their own rights and respecting those of others. They may revolt against the government if the government betrays its trust. Sovereigns are bound by natural law which Locke described as ‘reason’.

Jean Rousseau (1712-1778) published The Social Contract in 1762. He said that man was forced to adopt institutions of law to survive because the state of nature degenerated. Individuals therefore collectively parted with their natural rights to preserve themselves and remain free; they received civil liberties in exchange of natural rights. The State and law are therefore both the result of and subject to the General Will of the people.

None of this established what natural law is though.

The Modern Period

The 19th century saw a decline in the influence of the natural law theory and an increase in the influence of theories put forward by various other schools such as the analytical, sociological and historical schools.

Bentham called natural law nonsense on stilts though and said that it was the result of confusing scientific laws from moral and legal laws. To the Greeks, watching the movements of heavenly bodies and other natural phenomena, it seemed that every object had a purpose. There is a defence to this: it could be argued that scientific laws too merely describe the way in which things should occur, the way in which they have been pre-ordained to occur. The question then, of course, would be pre-ordained by whom? A Creator? God? The result would be that one would have to prove the existence of God – no easy task.

Auguste Comte said that the natural law theory was false, non-scientific and based on a belief in the supernatural.

David Hume used analytical positivism to destroy the theoretical basis of the natural law theory which he said was vague and obscure.

The 20th century, however, saw a revival in the natural law theory. This was mainly because people did not want to divorce law from morality, customs and religion. In any case, concepts like those of equality and justice which were inherent in the natural law theory were also the foundation of positivism. In addition to this, after the devastation caused by the two World Wars, the West wanted a value-conscious theory of law.

The obvious ‘advantages’ of the natural law theory are that it links law to justice and morality. The problem with that is that and questions of morality are not open to adjudication. Also, law, as we know it today, relies heavily on precedent and on Statutes. Courts generally do not decide disputes ex aequo et bono and if they did, the result would be that it would be impossible to predict a legal decision.

Custom

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Custom used to be one of the most important sources of law but has now, to a large extent, been superseded by statute and precedent. The acceptance of custom as law is far more prevalent in emergent legal systems than it is in mature legal systems.

There are two main grounds on which custom is accepted as law:
1. A state, when it begins to administer justice, respects what society acknowledges and approves of.
2. If there is a widely accepted custom, it is rational and in the interest justice that the custom be continued to be recognised and accepted, in this case, by its incorporation and/or recognition in the law.

Legal Customs

Legal customs are those customs whose authority is absolute under the law. They operate without the medium of a contract and can therefore be directly enforced.

Requirements for Custom to be accepted as Law:
1. Duration (Legal customs should have been existence since time immemorial but there is no such requirement as to duration with reference to conventional customs.)
2. Uniformity
3. Consistency
4. Generality
5. Universality

Conventional Customs

The authority of conventional customs depends on their acceptance and incorporation into agreements by parties which agree to be bound by them. In contractibus tacite veniunte ea quae sunt moris et consuetudinis.

Law originating from the acceptance of certain customs by merchants and the incorporation of those customs into law has resulted in the creation of what is known as ‘law merchant’ (and is a type of conventional law).

Conventional customs pass through three stages historical before they are accepted as law:
1. The custom in question is proved by witnesses.
2. The courts take judicial notice of the custom, and it can therefore be proved using precedent: its immediate source.
3. The custom is incorporated into statutory law.

If conventional customs conflict with Statute, they are admitted only to the extent that statutory law allows their admission. The conventional custom cannot derogate from law any further than the law itself allows. If the law does not allow parties to do something by contract, parties cannot do that thing by establishing a custom which allows it.

If a later conventional custom conflicts with an earlier custom which has been judicially noticed, the earlier custom will prevail.

General Customs

In England, general custom throughout the realm is Common Law. In Blundell v. Caterall, 1821 Best, J. said, “the practice of a particular place is a custom. A general immemorial practice through the realm is the common law.” While this may have been true of English Law in its infancy, the fact of the matter is that, as Salmond pointed out, ‘the Common Law of England has long since ceased to be customary law and has become a body of case law instead’.

Local Customs

Local custom can, in no case, be become part of the law of the whole State. Its operation is confined to a particular local area. For a local custom to be valid, it must be:
1. Reasonable
2. Consistent with statute
3. Observed as of right
4. In existence since time immemorial.

1. Reasonableness

Malus usus abolendus est.
To be valid, custom must be reasonable. This is not to say that it may be disregarded by Courts whenever they think that it is not very wise, it merely means that courts may choose not to accept a custom where it is obviously against public policy and justice.

2. Consistency with Statute

A custom cannot conflict with a statute in English Law. However, Roman Law and legal systems on the Continent follow the maxim ‘Lex posterior derogat priori’.

3. Observance as of Right

Nec vi nec clam nec precario.
‘Right’ over here has got nothing to do with moral right. It means that the custom should have been observed:
1. Openly
2. Without recourse to force
3. Irrespective of the permission of those whom it affected adversely.
e.g. Merchet was always considered undesirable by both tenants and the Church but was a well established custom in many manors nonetheless.

4. Duration

For a custom to be valid, it must have been in existence since time immemorial. As Littleton put it, “No custom is to be allowed but such custom as hath been used by title of prescription, that is to say from time out of mind. ‘Time out of mind’ in Roman and canon law means a time so remote that no man can remember or give evidence concerning it.

In England, however, human memory has become distinguished from legal memory. The Statute of Westminster passed in 1275 that ‘time out of mind’ extended only as far back of the accession on Richard I in 1189 – this law has not changed and the law now imputes that human memory extends to over eight hundred years!

Reference: Salmond on Jurisprudence, Bodenheimer

Legal Realism

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The Courts put life into the dead words of statute. – Gray

The realists consider Courts to be sovereign.

According to Salmond, rules recognised and acted on by Courts are law. This definition in suitable to case law, however, it does not concede that Statutory Law is law even before it has been recognised or applied by Courts.

In addition to this:
1. Realists tend to overestimate the vagueness of formal written laws.
2. Realists do not consider that the fraction of cases in which new law is formulated is miniscule.
3. The focus on Courts and case-law ignores the fact that law is not primarily judge-made: if that was the case, no one would be able to predict what judges would decide.
4. Realists do not appreciate the fact that most situations in which law governs the conduct of people do not find their way to Court.

American realist jurists have been rather sceptical about the value of statutory law on its own: statutes deal with classes of people and they rarely provide for individual anomalies – they are almost always left to a judge’s discretion.

Custom and Prescription

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Historically, the law of prescription was merely considered a branch of the law of custom – as custom, in its narrowest sense, was confined to local custom – although there are differences between the two as they are understood today:

Custom Prescription
Source of law Source of rights
Local: it applies to a particular place Personal: it applies to a particular person
Exists since time immemorial The legal fiction of ‘lost modern grant applies as does Statutory Law (or common Law in the absence of Statute)

A prescription is now contemplated in relation to easements and profits à prendre but it was earlier thought of as a type of particular custom.

The Weakening, Disregard and Destruction of Precedents

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This may be discussed taking into consideration:

  • Overruling a Precedent
  • Refusal to Follow a Precedent
  • Impugning a Precedent
  • Abrogated Decisions
  • Decisions of Equally Divided Courts
  • Incorrect Decisions

Overruling a Precedent

If a precedent is overruled, it becomes null and void, and is deprived of all its authority. It is substituted by a new principle. Only a superior jurisdiction can overrule a precedent.

Refusal to Follow a Precedent

The act of refusing to follow a precedent is an act of co-ordinate jurisdiction. Two courts of equal authority are under no obligation to follow precedents established by each other. They do not have the authority to overrule the other’s precedents but hey can refuse to follow them. When this happens, the two conflicting decisions have to wait for a Court superior to both of them to resolve the conflict by choosing to apply one of the precedents.

Impugning a Precedent

If a point of law has not been argued at all or a precedent has been passed sub silentio, no precedent is created in regard to it. However, if a point is badly argued, the inadequacy of the precedent is a ground for having an authoritative and binding precedent impugned.

Abrogated Decisions

Abrogated Decisions include:
1. Decisions which have been overruled or reversed by a higher Court
2. Decisions which lose their authority because a statute which conflicts with them is enacted later.

It is not entirely clear what happens when a decision is overruled or reversed on a point other than that on which it had been previously decided, although the general view appears to be that the point which the later judgment does not speak of is not overruled or reversed but that it loses some of its authority as a precedent.

Decisions of Equally Divided Courts

Courts are rarely, if ever, equally divided – the general practice is for a Court to sit with an uneven number of members. However, an appeal is usually dismissed if the Appellate Court is equally divided following the maxim omnia praesumitur pro negante.

Incorrect Decisions

Decisions which are incorrect may be based on an incorrect understanding of the principles of law. Logically, they should not be binding but they may be allowed to stand on practical considerations if they have stood the test of time.

Court practice varies considerably. It appears that if people have entered into contracts relying on an incorrect decision, or if the decision affects proprietary rights, the courts will not overrule it although they are likely to overrule a decision which does such things as affect citizens’ rights.

Reference: Salmond on Jurisprudence

The Classification of Precedents

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Judicial precedents may be classified into authoritative and persuasive precedents.

Authoritative Precedents Persuasive Precedents
Those which judges must follow Those which judges may follow
They are legal sources of law. They are historical sources of law.
e.g. Decisions of superior Courts e.g. Foreign judgments, judicial dicta, juristic works

 

The difference between authoritative and persuasive precedents is not always clear-cut though. For example, a decision of the Bombay High Court is authoritative as far as the District Court in Pune is concerned and it is only persuasive as far as the Calcutta High Court is concerned. To deal with this, Salmond spoke of conditionally authoritative precedents of which he said, “In all ordinary cases, it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the administration of justice. Otherwise, it must be followed, even though the Court which follows it is persuaded that it is erroneous or unreasonable.”

Non-authoritative Precedents

A precedent is not binding if:
1. It is made in ignorance of a statute.
2. It is inconsistent with the earlier decision of a higher Court.
3. There exist earlier conflicting decisions of the same rank.
(One might wonder how there can be such an inconsistency if a Court is bound by its own precedents – the answers, however, is simple: such inconsistency can occur if and when the conflicting decision is made before the binding force of a later precedent is recognised, or if the relevant precedent is simply overlooked and not cited in the later case.)
4. It is not comprehensively argued and a precedent is passed sub silentio.

Precedents Sub Silentio

A decision is said to have been passed sub silentio if:
1. It involves a point of law, A, which the Court does not consider while making its decision.
2. The Court bases its decision on another point, B.
3. It is shown that the Court would logically have had to decide Point A in order to decide Point B.
In such cases, the decision is not a precedent as far as Point A is concerned.
Precedents passed sub silentio have no authority. This rule is over three hundred years old – a reference to it was found in R v. Warner (Ward), 1661.

Reference: Salmond on Jurisprudence