American Realist School
of Jurisprudence-
American
Realism is not a school of jurisprudence but it is pedagogy of thought. They
are concerned with the study of law as it works and functions which means
investigating the social factors that makes a law on the hand and the social
results on the other. The emphasize more upon what the courts may do rather
than abstract logical deductions from general rules and on the inarticulate
ideological premises underlying a legal system.
John Chipman Gray-
1839-1915- The real relationship of jurisprudence to law depends not upon what
law is treated but how law is created. Gray stresses the fact that the statutes
together with precedents, equity and custom are sources of law but the law
itself is what the persons acting as judicial organs of the state laid down as
rules of conduct. To determine, rights and duties, the judges settle what fact
exists and also lay down rules according to which they deduce legal
consequences from facts. Gray emphasizes the role which judges play in laying
down the law because it is the judge who while interpreting the statute, custom
or equity create law rather than discovering the law. The law as expressed in
statutes or customs gets meaning or precision only after the judge expresses
his opinion. The judge depend on the sources of the law such as statute,
judicial precedent, opinion of experts, customs and public policies and
principles of morality, the law becomes concrete and positive only in the
pronouncements of the court. Judge made law is the final and authoritative form
of law. He suggests that the judicial pronouncements of law are the true
subject matter of jurisprudence for evaluations. Gray’s contribution lies in
the fact that judicial decisions often have been responsible for giving not
only content but direction to political, social and economic thought.
The
contribution of Gray in formulating the principle that the judges or the courts
have the first and the final say as to what the law is and obviously the role
of jurisprudence is to understand and evaluate the law made by judges is the
realist approach to understanding law and legal institutions.
Justice Oliver Wendell
Holmes- American Realist Movement- Scope of
Jurisprudence has an enhanced effect on American Realist thinking. The concept
of law traditionally is a collection of rules from which deductions can be
made. Holmes observed that life of the law has not been logic, it has been experience.
The law embodies the story of a nation’s development through many centuries and
it cannot be dealt with as if it contained only the axioms and corollaries of
mathematics. Law must be strictly distinguished from morals.
Holmes
definition of law and the scope of jurisprudence led to future developments in
constructing American Realism which focused attention on empirical factors
underlying legal system.
Jerome Frank-
1889-1957- Law and Modern Mind-
Rule
Sceptics believe that the lawyer should be able to predict to his clients, the
decisions in most law suits not yet commenced but legal rules enunciated in
court’s opinions sometimes called paper rules, too often proved unreliable as
guides in the prediction of decisions.
The
Fact Sceptics also engage in rule scepticism and tear behind the paper rules.
The Fact Sceptics are primarily interested in trial courts, yet they too cannot
predict future decisions.
The
conventional description how the courts render decision from the application of
legal rules does not describe the picture of judicial law making correctly and
fairly, especially when testimony of witnesses are to be recorded in the trial
where the chances making of mistakes on part of the witnesses as to the
correctness of what they saw or heard in their recollection of what they
observe may be at variance with the reality.
Similarly,
Trial judges and jurists, also human, may have prejudices of an unconscious
unknown even to themselves for or against some judges, lawyers, witnesses.
These prejudices can even be racial, religious, economic, and political or
gender biased. He laid emphasis on understanding the working of the lower
courts as he believed points of law emerge from fact situation of the lowest
situation of the court hierarchy. The textbook approach of law is misleading as
the working of the court system is uncertain and misty.
Instead
of taking precedence, emphasis should be there in training in fact-finding,
evaluation of prejudices, psychology of witnesses both for the trial judges and
for the prospective jurors to give effect to the empirical analysis of law and
legal institutions.
John Rawls-
He was a political scientist and one of the most influential moral
philosophers. He gave theory of Justice and said that political thought is
distinct from natural law. This society is self-sufficient association of
persons who in their relations to one another recognize rules of condition as
biding and act in accordance. They specify co-ordination designed to advance
good of those who are taking part in it.
The
society is witnessing a conflict of interest both in terms of sharing of
benefits as well as making a better life. A set principle is required in
determining the limits of individual advantages and social arrangement for
proper division of heirs. It is called as “Social Justice”. It provides a way
of assigning rights and duties in basic institution of society. It also defines
appropriate distribution of benefits and burdens of social co-operation.
The
main idea is to carry it to higher level of abstraction, the familiar theory of
social contract. These can regulate all agreements and they specify
co-operation that can be entered into and forms of government that can be
established. Thus, justice is termed as fairness.
He
conceives that basic structure of society distributes primary goods. They are
liberty, opportunity, income and wealth, health and vigor, intelligence and
imagination.
Two principles of Justice-
1. Each
person is to have equal right to most extensive total system of basic liberties
compatible with a similar system for all.
2. Social
and economic inequalities are to be arranged so that both are greatest benefit
of the least advantage consistent with the just saving principle.
3. Attached
to offices and persons open to all under fair equality for the protection of
liberty itself.
a. Maximization
of liberty subsists only to such constraints as are essential for the
protection of liberty itself.
b. Equality
for all, both in basic liberties of social life and also in distribution of all
other forms of social good. It is subject only to the exception that the
inequalities may be permitted if they produce greatest possible benefit for
those least well-off in given scheme of inequality.
4. Fair
equality of opportunity and elimination of all inequalities of opportunities
based on birth or wealth.
Clarence Morris-
Laws have to be good to achieve justice. Morris covers all varieties of laws
which govern human conduct.
Law
means more than statutes and ordinances. It includes both adjudicated decisions
of cases and social recognition of those legal obligations that exist without
governmental promptings.
The
conception of justice is inbuilt in law provided law takes into account genuine
aspirations of people.
Doing
justice through law means lawmakers serve the public by advancing its genuine
aspirations which are deep seeded, reasonable and non-exploitative. There is
need for judicial and legislative creativity for affecting the public
aspirations.
Conformity with Culture-
It
is an awareness of lawmaker of his responsibility to the environment where
people exist and live. The lawmaker must keep in mind, the environment within
which law has to exist and develop.
Morris
believes law to be justifies morally, socially and technically. He does not
assert that just quality is a necessary condition for continuity of law.
Jerome Hall-
There is objective and absolutely valid ethical values. Democracy is a part of
modern natural law because values incorporated in democratic law represents
most stable policy decisions which to be implemented by compulsion
Integrative Jurisprudence-
It is a combined jurisprudence of positivists, naturalists and sociological
description and an understanding of value components of legal order.
Law of Action-
Hall meant that law as social institution cannot be understood without
understanding day to day practices of judges, administrators and law
enforcement officials. Law is not simply rules, percepts and doctrines but is
actual working of them. Therefore, law as action would necessarily mean moral
principles and ideas.
Karl Llewellyn-
1893-1962- he recognized the functional approach to law and delineated certain
positions as common to American Realist. He summarized it.
1. The
conception of law is in a constant state of flux.
2.
The conception of law
is a means to social ends and not an end in itself so that any part needs to be
constantly examined for its purposes and for its effect and to be judged in the
light of both and of their relation to each other.
3.
The conception of
society is in flux and in flux it is typically faster than the law so that
probability is always given that any portion of law needs re-examination to
determine how far it fits the society it purports to serve.
4.
For the purpose of
these enquiries, the jurist should look at what courts and officials and
citizens without reference to what they ought to do. There should be a
temporarily divorce of is and ought for the purposes of study.
5.
Juristic enquiry must
regard with suspicion the assumptions that legal rules as they are formally
enunciated or inscribed in books represent what courts and people are actually
doing.
6.
Jurist must regard with
equal suspicion that rules of law formally enunciated actually do produce the
decisions which purport to be based on them.
7.
There must be
recognition of the necessity of grouping cases in narrower categories as the
realists tries to indicate explicitly which criterion is being applied in any
particular instance.
8.
Jurists must insist on
evaluation of any part of law in terms of its effects and insistence on the
worthiness of crime to find these effects.
9. Jurist
must insist on sustained and programmatic attacks on the problems of law along
any of these lines.
My philosophy of law-
He stresses that law is a going and necessary institution in the society. Law
as a going institution must be tested by life and achieve results. The legal
phenomenon can be booked for the purposes of law jobs. He goes on for advocacy,
counselling, judging, law making, mediation, conciliation, organization,
policing etc. All these areas need a fresh look. While commenting on common law
traditions list three major characteristics of judicial precedents as doing law
jobs.
The
reputations of the opinion writing judge, the principle of broad generalization
to bring order and sense in the precedent, and policy of prospective
consequence of the rule under consideration are considerations which must be
taken into account before evaluating a judicial decision.
The
facts of law are facts of life and the precedence of courts whether lower or
higher unit not in the sense what they have decided but what was bothering and
helping the court.
Scandinavian Realist
School
The
approach which they have developed over the centuries is peculiar and has very
little parallel with other countries. The law is Judge made law and little
codification happens in these countries.
Law
can be explained only in terms of observable facts and the study of such facts
which is the science of law. Therefore, law is a true science with any other
concern with facts and events in the realm of casualty.
Law
is nothing but the very life of mankind in organized groups and the conditions
which make possible peaceful co-existence of mass of individuals and social
groups and the co-operation for the other ends than mere existence and
propagation.
Axel Hagerstrom-
1868-1939-He is considered to be the spiritual father of the Scandinavian
Realists. He mastered the Roman Law. He was essentially a jurist of
philosophical times. Legal Science are important tools in reorganization of
society in just the same way as natural sciences depict the natural phenomenon.
The
rights, duties, property, will of the state were all word play. Legal
Philosophy is a sociological dispensation based on Historical and Psychological
Analysis. The idea of rights and duties expressed in the imperative form is
really about something which the legislator had in mind too be actualized by
means of the law.
The
claims and assertions of rights and duties is basically what in fact a person
claiming a right can obtain from the party who is under an obligation through
the process of law. Judges while applying the legal odds, ‘it shall be so’ is
nearly a phrase which does not express any kind of idea but serves as a
psychological means of compulsion in a certain case.
It
is only from the ideas that logical content can be drawn. On the other hand the
ideal content of law is arrived at for psychological associative reasons.
The
legal enactments concerning rights and duties are powers which fall outside the
physical world. Even if, the legislator also understands why rights and duties
are certain social state of affairs which he aims at realizing, yet the idea of
rights and duties are supernatural powers and bonds present and active
throughout. The essence of Hagerstorm’s thesis is the extrapolation of the idea
of rights and duties as they are odd propositions but there content is
something of supernatural power with regard to things and persons.
The
second aspect of his thesis is that rights and duties have a psychological
explanation found in the feelings of strength and power associated with the
conviction of possessing a right. Therefore, one fights better if one believes
that one has right on one’s side.
Karl Olivercrona- 1897-
Rules of law are independent imperatives that are propositions in imperative
form but not issuing like commands from particular persons.
Law
as fact- Law is a link in the chain of cause and effect. The binding force of
law is a reality merely as an idea in human minds. The content of a rule of law
looking at both substantive and procedural aspects may be defined as an idea of
imaginary action by people, for e.g. judges in imaginary situations. The
application of law consists in taking these imaginary actions as models for
actual conduct when the corresponding situations arise in real life.
Rule
of Law is not command in the proper sense. Its innermost meaning is to range
law among the facts of actual world and the commands if there are any are
natural facts. State as an organization cannot issue commands as it is the
individuals who may issue commands. The rules of law are independent
imperatives as they are propositions which function independently of any person
who commands. Law chiefly consists of rules about force. The rules of civil and
criminal are at one and at the same time, the rules for private citizens as
well as the use of force by the officials.
He
asserts that the belief that moral ideas are the primary factors that the law
is inspired by them and justice is represented by rules of law is incorrect as
they are not based on facts rather are superstitions.
Legal
Language and Reality- He held that the purpose of all legal enactments,
pronouncements, contracts and other legal acts is to influence man’s behaviour
and direct them in certain ways.
The contribution of
Olivercrona is multifold.
1.
By Stressing that Law as fact is something which has to be observed and the
legal conception such as command-duty, legal rights-duties are fantasies of
mind.
2.
The Psychological Pressures are the real reason for law.
3.
Rules of Law are imperatives distinct from commands.
A.B. Lundstedt-
1882-1995- Legal Thinking Revisited-
He contends that natural justice is an external factor for balancing the
interests of the parties based on evaluation. The entire substratum of legal
ideology, the so called material law and its basis, natural justice lacks the
character of reality. Even legal rights, legal obligations, legal relationships
and the like lack such a character. The common sense of justice is far from
being able to support the material law, on the contrary, receives its entire
bearing through the maintenance of law i.e. legal machinery which takes the
common sense of justice into its service and directs it in groves and furrows
advantageous to society and its economy and consequently, legal ideology does
not and cannot perceive those realities appertaining to legal machinery but
places them right on their head. Legal conceptions such as wrongfulness, guilt
and the like are operative only in the subjective conscience and could not have
objective meaning.
To
contend that the defendant has violated a duty was a judgment of value and
thus, an expression of feeling. The only realistic significance that could be
assigned to such terms was in connection with the coercive legal machinery of
the state called into action for the purpose of enforcing a contract or
punishing a wrong-doer.
The
idea of law as a means of achieving justice is chimerical. It is not founded on
justice but on social needs and pressures. He promoted the method of social
welfare which is a guiding motive for legal activities.
Rylands
v. Fletcher- The court decided what the rules
as to damages should be for cases in which something dangerous had escaped from
land. The fact that the court reasoned in terms of obligation on the property
owner was illusionary, superfluous and because it mystifies, also harmful.
Legal
activities are indispensable for the existence of society. Social Welfare as a
guiding principle of legal activities are decent food, clothing, shelter, all
conceivable material comforts as well as the protection of spiritual interests.
The
contribution of Lundstedt in developing a value neutral realist theory is
remarkable as it stresses that concepts such as right and duty, liability etc.
are tools of thought used in deciding the cases.
Alf Ross-
1899- The Concept of valid law on the analogy of a game of chess being played
by two players and an onlooker who does not know the rules of the game. Human
social life acquires the character of community life from the very fact that a
large number of individual actions are relevant and have significance on set of
common conceptions of rules. They constitute a significant whole bearing same
relation to one another as move and counter move.
A
norm is a directive which stands in relation of correspondence to social facts.
The norm is said to be the directive in the sense of a meaning contained is a
norm only if it corresponds to certain social facts. The fundamental condition
for an existence of a norm must be that it is followed by in the majority of
cases; the pattern of behaviour presented in the directive is followed by
members of the society.
On Law and Justice-
Legal Sanction- They are applied as per the
decisions of the courts. Therefore, the existence of a legal norm would have to
be derived from an observed regularity in the court’s decision. A norm may
derive from a past decision and it follows from this view that all norms
include those of legislation, should be viewed as directives to courts. Legal
rules are rules about the exercise of force and as such are directed to
officials.
Directives and Norms-
He contends that from a psychological point of view, there is another set of
norms directed to individual which are followed by them and felt to be binding.
The test of validity of law lies in the predictability of decisions. So valid
law means the abstract set of normative ideas which serves as a scheme of
interpretation for the phenomenon of law in action which again means that these
norms are effectively followed.
His contribution is
multi-dimensional.
1. He
is concerned to divest legal validity from all meta-physical necessities.
2. His
thrust is that the legal norms are valid if courts would enforce and predict
them. Norms are essentially addressed to courts rather than to private
individuals
3. The
natural law philosophy in recognizing the relationship between law and morals
is fallacious.
Marxist Theory of Law
Karl marx-
1818-1883- Fredreich Engels- Both of them were the founders of the greatest
social and political movement which began in 19th century and
flourished in 20th century as a political philosophy in Eastern
Europe which is the erstwhile Soviet Union and influenced all the decolonized
colonies of the world and is practised in China’s Political Philosophy.
Marx’s
view of state and law was co-terminus with the understanding of society and
social process. Marx’s originality of thought lies in the fact that he
synthesized almost entire philosophical thought from Aristotle to Hegel.
The
sociological understanding of the society led Marx to pronounce that the
desired system would be a Communist Society based on rational planning,
co-operative production and equality of distribution and most importantly,
liberated from all forms of political and bureaucratic hierarchy.
Marx
condemned and rejected the state and money as Bourgeois concept and the
proletariat has a historical mission of emancipating the society as a whole.
Law seems to be nothing than a function of economy without any independent
existence.
His
classification of society into various classes-
1. The
capitalists
2. The
Wage Labourers
3. The
land owners
This
conflict will eventually have to be resolved. The resolution of the conflict
will take the shape of a Proletarian revolution. Once this revolution takes
place, it will seize the power of the state and transform the means of
production in the first instance into the state property. The earlier state of
exploitation and representative of class antagonism will be replaced by a state
truly representative of society as a whole which means taking possession of
means of production in the name of society is at the same time its last
independent act of a state. The interference of the state in social relation
becomes superfluous in one’s sphere after another and then ceases off itself.
The government of persons is replaced by administration of things and directs
the process of production. However, the Proletarian revolution in order to
reach the stage of Communism shall have to pass through various stages.
1. Establishment
of a Proletarian Dictatorship which is essential to convert the capitalist
modes of production to the Proletariat mode of production.
2.
Stage of
Nationalization of the property and all the capital modes of production.
3. Stage
of Socialism as the property is in common ownership, the society at large shall
be responsible for the production and distribution of goods.
As
the production of goods in common ownership, the distribution of commodities
will have to follow “from each according to his ability to each according to
his needs”.
Inequalities
will remain and hence, the need to distribute the goods is inevitable. The
ultimate stage is that of Communism and this state he imagined in his work
called “Critique of Gotha Program-1875”. Communist society will have to develop
and emerge from capitalist society and in respect will carry with it some marks
of capitalist society. Accordingly, the individual producer recedes back from
the society what he gave to it by way of labour. If a labourer has worked for
fixed hours of a day, he is entitled to the amount of wages for which he has
worked. He receives a certificate from society that he has furnished such and
such amount of labour and with this certificate he draws from the social stock
of means of consumption as much as costs same amount of labour.
Higher Communist State-
Concept of power and labour gets vanished. After production force increases,
then there will be all round development of individual. This we get from “Communist Manifesto”. In higher form
of communist state after enslaving subordination of the individual to the
division of labour and anti-thesis between mental and physical labour has
vanished after labour has become not only a means of life but life’s prime
want, after the productive forces have also increased with the all-round
development of individual. And all the springs of the co-operative wealth flows
more abundantly.
The
concept of state is a super structure in a capitalist state to organize and
uphold class oppression. The bureaucracy and the executive in a state are for
the managing common class and struggle waged by the society against each other.
Law is not based on will but once the bourgeois state is overthrown by a
proletariat, the proletariat state comes into existence. This state is
representative of social will of all the classes. The nexus between
safeguarding the private property by a capitalist state is replaced by a
proletariat state which has nationalized all the private property. However,
state and statecraft remains important and integral in the proletarian society.
E. Pashukanis-
1891-1937- he tried to remove the gloss on law and Marxism as experimented by
the Marxist state. He believed that proletariat law practised in erstwhile
Soviet Union needs alternative general concepts to reinforce Marxist theory of
law. Power is collective will as the rule of law is realized in the bourgeois
society to the extent that this society represents a market.
Karl Renner-
The institutions of private law and their social functions- It utilized the
Marxist theory of sociology to develop a theory of law. Socialists and Marxists
have failed to understand that new society has always pre-formed in the womb of
the old and that is equally true for law. The process of change from one given
order to another is automatic.
Renner
confesses that the concept of property in terms of Marx has not remained the
same but the property whether in socialism and capitalism has not remained an
instrument of exploitation rather the natural forces of change have put
property into various restrictions be it tenants, employees or consumers.
However, the power of property remains whatsoever the political character of
the state may be.
Natural Law-
Hugo Grotius- Dutch
Jurist- Father of International Law-
Formulated the doctrine of social life of men as its unique characteristics for
peace and tranquillity with fellowmen according to the measure of the
intelligence with the intelligence of other fellow men with whom he has to live
with. This unique characteristic is to be found in natural law because natural
law is directly proportional to human intelligence. Natural Law is superior to
all law as it is dictated by reason and any law which is not in conformity with
rational nature is either irrational or immoral. He believed whole universe is
regulated by the law of nature.
He
also developed the concept of “Pacta
sunt Servanda”. He conceptualized the notion of a state as an association
of the freemen joined together for the enjoyment of rights and for their common
interest. This association is a result of a contract in which people have
transferred their sovereign power to a ruler who has acquired it as his private
power and whose actions under ordinary circumstances are not subject to legal
control. However, the ruler is bound to observe the natural law and the law of
nations. Grotius uses the construction of social contract for a twofold
purpose, internally for the justification of the absolute duty of obedience of
the people to the government, internationally to create a basis for legally
binding and stable relations among the states. Grotius puts forward social
contract as an actual fact in human history. The constitution of each state,
Grotius thinks, had been precedent by a Social Contract by means of which each
people had chosen the form of government which they consider most suitable for
themselves.
The law of war and
peace- Natural law is the dictate of the
right reason which points out that an act, according as it is or is not in
conformity with rational nature has in it a quality of moral base and moral
necessity.
Immanuel Kant-
He gave modern thinking a new basis which no subsequent philosophy would
ignore. In ‘Critique of Pure Reason’, he set for himself the task of analysing
the world as it appears to human consciousness. Nature follows necessity but
human mind is free because it can set itself purposes and free will. Compulsion
is essential to law and a right is characterized by the power to compel. The
aim of Kant was a universal world state, the establishment of a republican
constitution based on freedom and equality of states was a step towards league
of states to secure peace. Kant was doubtful of the practical possibility of
the state of nations and he saw no possibility of international law without an
international authority superior to the states.
He
was a German Idealist. He based his theory on pure reason. He says man is a
part of reality and is subject to its laws (sovereign’s laws). Though, it is
through will of the people, the sovereign comes into existence, but still the
man is not free. His reason and inner consciousness makes him a free moral
agent, so the ultimate aim of the individual should be a life of free will and
it is when free will is exercised according to reason and uncontaminated by
emotions, that free willing individuals can live together.
People
are morally free when they are able to obey or disobey a moral law but since
morality and freedom are same, an individual can be forced to obey the law
without forcing the freedom provided by law in conformity with morality.
He
talks about proclamation of autonomy of reason and will. Human reason is law
creating and constitutes moral law.
Freedom in law means freedom from arbitrary subjection to another. Law
is the complex totality of conditions in which maximum freedom is possible for
all.
The
sole function of the state is to ensure observance of the law. The individual
should not allow himself to be made a means to an end as he is an end in
himself, if need be he should retire from society if his free will would
involve him in wrong doing.
Society
unregulated by right results in violence. Men have an obligation to enter into
society and avoid doing wrong to others. Such a society has to be regulated by
compulsory laws. Those laws are derived by pure reason of the idea of social
union; men will be able to live in peace.
What
is needed is a rule of law and not of man. Kant’s ideal of laws does not bear
any relation to any actual system of law; it is purely an ideal to serve as a
standard of comparison and not as a criterion for the validity of law. Kant
considered political power as conditioned by the need of rendering each man’s
right effective while limiting it at the same time through the legal rights of
others. Only the collective universal will armed with absolute power can give
security to all. This transfer of power is based on social contract which is
not a historical fact but it is an idea of reason. The Social Contract is so
sacred that there is an absolute duty to obey the existing legislative power.
Rebellion is not justified. Therefore, he considers a republican and
representative state is an ideal state. Only the united will of all can
institute legislation and law is just only when it is at least possible when
the whole population should agree to it. He was in favour of separation of
power and was opposed to privileges of birth and established church and
autonomy of corporations. He was in favour of free speech. The function of the
state was essentially that of the protector and guardian of that law.
George Wilhelm
Frederich Hegel- 1770-1831- Theoretical
explanation of the universe- He developed a theory called ideal dialectism. It
is a way of investigating the truth of opinions by discussion and logical
argument. Later on, Karl Marx converted this into material dialectism and
political idea and statecraft. The basic tenets of Hegel philosophy is
neo-Kantian natural law. His system is a monistic one. The idea unfolds from
the simple to the complex by means of the dialectical process and any face of
reality is based on reason. The history of civilization does not depend on
unfolding of events but there is an objective spirit as standard bearer of
reason unfolding human civilization. What is reasonable is real and what is
real is reasonable. The moving spirit of civilization is the “idea”. This idea
is responsible for the movement of the civilization both in terms of leadership
thrown up in the movement of the civilization. All the social systems are on a
move from one stage to another.
The
first stage of conceiving the idea is thesis which is from the standpoint of
the one’s observation, a given concept of the civilization from that
standpoint. However, by the time thesis is conceived, the opposite of idea of
thesis is hidden within the idea. The principle or doctrine which is taken at the
first starting point would be thesis but these rules and principles have a
counter point inbuilt in them which when reduced to tangible categories may
become ‘anti-thesis’ of them. However, the antithesis of idea of the doctrines,
rules would before becoming concrete and metamorphosed would enter into
synthesis, new phase and the synthesis would again become thesis as the content
and structure of these rules, principles and doctrines. This is an endless
circle and is true human history.
The
history of civilization does not depend upon unfolding of events but there is
an objective spirit. The nations are on a move to achieve this freedom. Once
the nations achieve these ideals, the young nations would strive to do the
same. Law essentially is made to understand the idea of freedom from its
external manifestations. He used the metaphor of natural law that man is free,
passions, irrational desires and material interest which have to be
subordinated to his rational and spiritual self. The mandate of natural is that
man should lead a life governed by reason and respect the reason of others.
Property- Private
Property- State has the ultimate control of the property.
Contract- Contract is
the capacity of the individual to acquire or dispose of property.
Wrong- It is an act or
disposition which negates the will of others.
Georgio Del Vecchio-
He talked about Ideals of Law as compared to positive law. Ideals of law should
correspond to natural law is higher law and provides criteria for evaluating
positive law and to measure its elements of justice. It is the basic principle
which guides legal and human evolution. The respect for human autonomy should
be there.
His
theory takes experience from Kantian metaphor which is the basis of justice.
Earlier conceptions of natural law such as consent, liberty, representative
democracy and conscience which have to a great extent recognized in positive
law will further impact the evolution of positive law. The law faces a struggle
and this struggle leads again to evolution of law.
Though,
he basis his thesis on Kant but he differs in one aspect. The state is not only
concerned with making of law but also with enforcement of law and should
concern with social, political and economic well-being of social life of human
beings.
The
contribution of Vecchio in reviving of natural law is that search of ideals for
reforming positive law lies in natural law as natural law is part of the human
nature.
His
work displays a profusion of philosophical, historical and juristic learning.
Law is not only formal but has a special meaning and an implicit faculty of
valuation. Law is a phenomenon of nature and collected by history.
Complete List of Jurisprudence Notes
1. Jurisprudence- Nature and Scope of Jurisprudence
2. Jurisprudence- The Nature of Law
3. Jurisprudence- Administration of Justice
4. Jurisprudence- The Sources of Law
5. Jurisprudence- Legal Concepts
6. Jurisprudence- School of Thoughts
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