In modern times the natural law theory was most vehemently advanced during the American and French revolutions. It was proclaimed that liberty, equality and fraternity are inherent and ‘natural’ to man. But these ideas would be unacceptable to the ancient Greeks and Romans, though they also believed in natural law. To a Greek or Roman, slavery was a ‘natural’ phenomenon, and therefore, equality or liberty would be ‘unnatural’. Thus what is regarded as ‘natural’ in one era and in one society may not be so regarded in another.
The basic difficulty with natural law is that it is vague. What is natural? The answer may differ not only from age to age but even from person to person. How can one frame a legal system on this basis? People wish to have clear-cut, known laws so that they may regulate their conduct accordingly. Natural law is such a hazy concept that, if sought to be enforced, it can only result in confusion. As Kelsen said, with natural law one can prove everything and nothing. Bentham regarded natural law as metaphysical nonsense. Similarly, the Danish jurist Ross (1899-1979) in his book ‘On Law and Justice’(1958) and logical positivists like Carnap (1891-1970) said that the metaphysical speculation underlying natural law was totally beyond the reach of speculation. They pointed out that natural law can be used to defend or fight for every conceivable demand, and it had been used to defend slavery (in Ancient Greece and Rome). Totalitarians have found support in the natural law writings of Duguit and Del Vecchio, while advocates of greater freedom have relied on the writings of the French Philosopher Maritain (1882-1973) and the American jurist Lucey.
Natural law theories arose during the periods of historical transitions and turmoils e.g. during the American and French Revolution. There was also a temporary revival of natural law after the World War II, particularly in Germany where jurists like Radbruch were of the view that Nazi racial laws were so bad that they could not be regarded laws at all. However, soon after this ‘revival’, the natural law theory collapsed because natural law was obviously too vague and uncertain a concept to be accepted in modern industrial society which requires clear-cut rules and ideas.
Positivism, therefore, replaced natural law as the predominant theory in jurisprudence. Positivism lays great emphasis on statutory law, i.e. the law made by the legislature or its delegates, and it is ideally suited to the industrial era (unlike historical jurisprudence which was the jurisprudence of the feudal and pre-feudal era).
The confusion and uncertainties in the feudal laws in most countries of Europe upto the 18th century were impeding the growth of industry, and had to be replaced by simplification, systematization, clarity, uniformity and precision in the industrial era.
Positivist jurisprudence was the response to this situation. The Austinian analytical school is widely regarded as the classical positivist theory.
According to Austin: (1) Law is the command of the sovereign, backed up by sanctions, (2) Law is different from morality, religion, etc.
Thus, positivist jurisprudence regards law as a set of rules (or norms) enforced by the State. As long as the law is made by the competent authority after following the prescribed procedure it will be regarded as law, and we are not concerned with its goodness or badness. We may contrast this with the natural law theory which says that a bad law is not a law at all.
The separation of law from ethics and religion was a great advance in Europe from the feudal era (in which they were all mixed up). “The science of jurisprudence” Austin says “is concerned with positive laws, or with laws strictly so called, as considered without regard to their goodness or badness”. Thus, positivism seeks to exclude value consideration from jurisprudence, and confines the task of the latter to analysis and systematization of the existing laws.
Austin regards law as the command of the sovereign, and since in modern society the most common form in which such command occurs is a statute, statutory law, and especially codification, were given the highest place in positivist jurisprudence.
Thus, in France, the Civil Code of 1804 (the Code Napoleon) evoked great admiration from the French lawyers. Before this Code there were scores of legal systems in France, each province having its own laws (often a hotch-potch of local customs, Roman Laws, decrees of the parliaments, etc.) and the result was total confusion and uncertainty in the law.
By simplifying the law, and standardizing it all over France, the Code Napoleon was a great step forward in history. It was followed by other Codes, e.g. the German Code of 1896.
Positivist jurisprudence was thus of great help in society’s progress from the feudal to the industrial era.
In the 20th century, the main positivist jurist is Kelsen, but it is not necessary to deal with his theory (The Pure Theory of Law) here.
While positivism was a great advance over natural law and was suited to modern industrial society, it had a great defect and that was this: it rigorously excluded a study of the social, economic and historical background of the law. Positivism only studied the form, structure, concepts etc. in a legal system. It was of the view that study of the social and economic conditions and the historical background which gave rise to the law was outside the scope of jurisprudence, and belonged to the field of sociology.
However, unless we see the historical background and social and economic circumstances which give rise to a law it is not possible to correctly understand it. Every law has a certain historical background and it is heavily conditioned by the social and economic system prevailing in the country. The great defect in positivism therefore was that it reduced jurisprudence to a merely descriptive science of a low theoretical order. There was no attempt by the positivist jurists, like in sociological jurisprudence, to study the historical and socio-economic factors which gave rise to the law. Positivism reduced the jurisprudence to a very narrow and dry subject which was cut-off from the historical and social realities. Thus it deprived the subject of jurisprudence of flesh and blood.
This defect in positivism was sought to be overcome by sociological jurisprudence, which became an important trend in the twentieth century. Sociological jurisprudence studies the legal system not in isolation but as part of the social reality. This was definitely a great advance over positivism since, as already mentioned above, the law cannot be properly understood without knowing its historical and social background. Thus, sociological jurisprudence considerably broadened the scope of jurisprudence.
There are many schools of sociological jurisprudence e.g. ‘Living Law’ school of Ehrlich, the ‘Institutional School’ of Durkheim, the ‘Harvard School’ of Roscoe Pound etc. It is not possible in this short time to discuss all these schools. What is common in most of them is their de-emphasis on legislation and emphasis on judge made law. The most extreme school of sociological jurisprudence in the U.S.A. was the realist school. According to Gray, one of the founders of the realist school, statutes, rules etc are not law but the material which the judge uses in making law. Gray was of the view that although sometimes it has been said that law is composed of two parts, legislative law and judge made law, but in truth all law is judge made law. Frank regarded court decisions as ‘actual law’ while statutes, rules, etc. are only ‘probable law’.
The realist school thus totally negated the normative nature of law, and thereby it negated law itself.
Normativism is an essential feature of a legal order. A law is a norm (or rule of conduct) meant for repeated application, and not exhausted by its fulfillment once. A law reflects a certain social or economic relationship, and this relationship is created by the productive forces then prevalent in a given society. Since over a course of time the cycles of economic production kept repeating themselves certain enduring social relationships came into existence which were reflected, formalized and protected by the law. Law, thus, consists of a set of rules reflecting these relationships. It is true that in modern scientific society social relationships are fast changing, but that does not mean that there is instability all the time in society. There are periods of rest and consolidation, and periods of social advance, and the law will reflect both.
The basic mistake of the realists is lack of a true understanding of the nature of law. There are important areas in the law in which judicial discretion cannot be exercised. For example, after the Hindu Marriage Act, 1955 a Hindu can have (at a time) only one wife. This law is so clear that no Judge in India can possibly hold that a Hindu can have more than one wife. Also, it is an over-simplification to say that ‘law is what the Courts do in fact’. Many matters never come to Court, and yet the law is usually complied with.
Since normativity was rejected by the sociological jurists, obviously something had to fill in the vacuum. This was done by the sociological jurists by giving free discretion to the judges, as if judges can solve all problems of society. Thus, sociological jurisprudence shifted the centre of gravity of the legal system from statute to judge made law.
Thus, having started off from a correct approach, sociological jurisprudence soon got derailed. It has been mentioned above that positivist jurisprudence laid great emphasis on statutory, i.e, man-made law (as contrasted to historical jurisprudence which emphasized on customary, i.e., non-man-made law). Sociological jurisprudence, however, pointed out that there were great gaps in the statutory law which had to be filled in by the judges, and even the statutory law had to be interpreted by the judges in a manner as to fulfill the needs of society. Sociological jurisprudence, thus, shifted the centre of gravity of the legal system from statutory law to judge-made law. Whereas under positivism a judge is only a passive agent and it is none of his function to make law (that is the task of the legislature), sociological jurisprudence arms a judge with tremendous powers to play an active role and even make law.
Sociological jurisprudence, thus, overcame an important defect in classical positivism. However, it in turn, suffers from major defects, and is unable to satisfy the intellectual needs of modern society. After all, arming judges with wide discretionary legislative powers solves few problems. There are all kinds of judges, scientific and unscientific, intelligent and dull, active and passive. To give all power to judges is thus a superficial solution to the problems of the modern world.
At present, modern western jurisprudence is undergoing a deep crisis. Despite creating a host of schools and theories, it seems to have exhausted the possibility of any further development and is lying stagnant. However, solutions to vital problems still eluded. A new theory in jurisprudence is, therefore, required in the modern era.
Ancient Indian Jurisprudence and Modern Jurisprudence
Having given the basic feature of ancient Indian jurisprudence and modern jurisprudence, we may summarize the differences between the two. Ancient Indian jurisprudence related to semi feudal and feudal society, whereas modern jurisprudence is related to industrial society. A feudal society is basically an agricultural society in which the productive techniques were primitive and changes in them were very slow. Thus the bullock (In India) and the horse (in Europe) were used for tilling the land for agriculture. This method of production did not change for centuries. The productive techniques being primitive, production was low, and hence changes in the productive technique could not be hazarded for fear that if the experiment failed people would starve. Since the economic cycle in feudal society kept repeating itself for centuries (e.g. the kharif crop during the monsoons, rabi crop in winter, then again the kharif crop in the next monsoon, and again the rabi crop thereafter, etc.), without radical changes in productive techniques, society was relatively stable. Consequently, the main form of feudal law was customary law supplemented by written texts.
In sharp contrast to this is the relative instability of industrial society. Modern industrial society is characterized by the revolutionary nature of modern industry. Since scientific and technical progress has no end (because of new scientific discoveries and inventions) social relations keep changing endlessly. For example, the invention of aircraft in 1903 and the launching of the first man made satellite in 1957 have brought revolutionary changes in society. Within a short period man has not only flown in heavier than air machine (thus ostensively violating the law of gravity), but has actually penetrated into the outer space. The internet was unknown ten years ago but is indispensable today.
Thus we see that while upto the feudal age society was relatively stable and human progress was very slow, and largely spontaneous (because for centuries the same kind of primitive productive technique was used for agriculture), the Industrial Revolution of 18th and 19th century in Europe and America, which later spread all over the world, has completely altered this situation. Machine production ushered in totally new kinds of social relations. The basic feature of modern society is its remarkable instability due to the revolutionary nature of modern industry. By continuously changing the techniques of production (by new scientific inventions and discoveries) modern industry is constantly causing major changes in social relations and, therefore, in the law. While feudal society was based on conservation of production techniques, industrial society is based on continuously altering and improving them.
As already stated above, the main source of law in modern times is legislation. By its very nature, legislation brings about at a particular moment abrupt change in social relations. This is in sharp contrast to customary law which evolved very slowly over the centuries without radical and abrupt departure from the past. Since each major technical advance in modern industrial society brings about a change in social relations, it calls for new legal norms, which is not possible by slow customary growth. Hence, legislation has become the most important source of law in modern society.
However, as pointed out by the sociological jurists, there were often gaps in the statutory law, and also the statutory law did not always keep pace with the pace of social development due to advancement in technology. This required judge made law to fill in these gaps, in certain circumstances.
Hence, we can say that modern industrial jurisprudence while mainly positivist, in that it relies mainly on legislation, also uses the ideas of sociological jurisprudence by supplementing the legislation whenever there is a legal vacuum or when compelling social need arises. Also, it sometimes uses some concepts from natural law, e.g. the rules of natural justice (when there is no statutory rule).
Thus while ancient Indian jurisprudence can be said to belong to the historical school of jurisprudence, modern jurisprudence is a combination of positivism, sociological jurisprudence and natural law.