Ankita Lode, a final-year student of Yeshwant Law College, Wardha has written this Article. It explains Schools of law in jurisprudence, provides a Historical Overview of Schools of Law, The Major Schools of Law & Criticisms among other things.
Jurisprudence is a branch of knowledge that deals with the study of law, legal systems, and legal philosophy. It seeks to provide a deeper understanding of the nature of law and its role in society. At its core, jurisprudence is concerned with the study of legal concepts, principles, and theories, and how they shape the development and interpretation of the law. One of the main areas of study in jurisprudence is the schools of law. Schools of law refer to distinct approaches or methods of interpreting and applying the law. They are characterized by different theories, principles, and assumptions about the nature of law and its purpose.
II. Historical Overview of Schools of Law
Legal systems are the core element of every society as they provide a framework for resolving conflicts, defining rights and responsibilities, and regulating social behaviour. Throughout history, various legal systems have evolved, reflecting the cultural, political, and social contexts of the societies in which they emerged. This essay provides a historical overview of the schools of law, starting from ancient legal systems, medieval legal systems, and modern legal systems.
A) Ancient Legal Systems
The ancient legal systems were based on customary law, religious law, and natural law. These legal systems emerged in the ancient civilizations of Egypt, Mesopotamia, India, China, and Greece.
1) Egyptian Legal System
The Egyptian legal system was based on the concept of Ma’at, which means justice, truth, and righteousness. The laws were recorded on stone tablets and papyri and were enforced by the pharaoh and his officials. The law was divided into two categories, civil law, and criminal law. Civil law dealt with matters such as property rights, contracts, and inheritance, while criminal law dealt with offenses such as theft, assault, and murder. The punishment for offenses was severe, including fines, imprisonment, amputation, and even death.
2) Mesopotamian Legal System
The Mesopotamian legal system was based on the Code of Hammurabi, which was a collection of laws created by the Babylonian king Hammurabi in the 18th century BCE. The Code of Hammurabi was engraved on a stone stele and contained 282 laws that covered various aspects of daily life, such as marriage, property, and commerce. The Code of Hammurabi was the first legal code to establish the principle of “an eye for an eye, a tooth for a tooth,” which means that the punishment for an offense should be proportional to the offense itself.
3) Indian Legal System
The Indian legal system was based on the Dharmashastra, which was a collection of religious and ethical texts that defined social and moral laws. The Dharmashastra was divided into two categories, the Smritis and the Shastras. The Smritis were texts that dealt with civil and criminal law, while the Shastras were texts that dealt with ethics, morality, and religion. The Indian legal system was characterized by its focus on mediation and conciliation rather than punishment.
4) Chinese Legal System
The Chinese legal system was based on the concept of Confucianism, which emphasized the importance of social harmony and moral values. The laws were codified in the Tang Code and the Song Code, which contained provisions for civil and criminal law. The Chinese legal system was characterized by its use of mediation and arbitration to resolve disputes.
5) Greek Legal System
The Greek legal system was based on the concept of natural law, which held that laws should be based on reason and morality rather than on the will of the gods or the rulers. The laws were codified in the Athenian Constitution and the Laws of Solon, which contained provisions for civil and criminal law. The Greek legal system was characterized by its emphasis on the rights of the individual and the importance of democracy.
B) Medieval Legal Systems
The medieval legal systems were based on the Roman law, canon law, and feudal law. These legal systems emerged in Europe during the Middle Ages.
1) Roman Law
The Roman law was a legal system that was based on the Corpus Juris Civilis, which was a collection of legal texts created by the Byzantine emperor Justinian in the 6th century CE. The Roman law was characterized by its emphasis on the principles of equity, natural law, and the protection of property rights. Roman law influenced the legal systems of many European countries and is still an important source of law in some countries.
2) The canon law
The canon law was a legal system that was based on the laws of the Roman Catholic Church. The Canon law was enforced by the church courts and dealt with matters such as marriage, divorce, and inheritance. Canon law was influenced by Roman law and was characterized by its emphasis on morality and the authority of the church.
3) Feudal Law
The feudal law was a legal system that was based on the feudal system of governance. Feudal system was a hierarchical system in which the king or lord owned the land and granted it to his vassals in exchange for loyalty and military service. The feudal law dealt with matters such as land tenure, inheritance, and the obligations of vassals to their lords. The feudal law was characterized by its emphasis on the obligations of loyalty and service to the lord.
C ) Modern Legal Systems
The modern legal systems are based on civil law, common law, and socialist law. These legal systems emerged in Europe and spread throughout the world.
1) Civil Law
Civil law is a legal system that is based on Roman law and is characterized by its emphasis on written codes and statutes. Civil law is used in many European countries and in many countries that were colonized by European powers. The civil law is also used in international law.
2) Common Law
Common law is a legal system that is based on the precedents and judgments of courts rather than on written codes and statutes. The common law is used in many English-speaking countries, including the United Kingdom, the United States, and Canada. The common law is characterized by its emphasis on the importance of judicial decisions in shaping the law.
3) Socialist Law
The socialist law is a legal system that was used in communist countries, such as the Soviet Union and China. The socialist law is based on the principles of Marxism and is characterized by its emphasis on the collective ownership of property and the protection of social rights. Socialist law has been largely replaced by civil law and the common law in many countries
III. The Major Schools of Law
Law is a crucial component of society, shaping our behaviour and guiding our interactions with one another. It governs our conduct and provides structure and order to our society. However, despite its significance, the concept of law remains contested and subject to debate. Different schools of thought and theories have been developed throughout history to explain what the law is, its functions, and its role in society.
Natural Law School
The Natural Law School is one of the oldest schools of legal thought, dating back to ancient Greece and Rome. This school of thought holds that the law is based on natural principles that are inherent in human nature. According to this view, there are certain moral and ethical principles that are universal and transcend time and place.
The Natural Law School asserts that the law should be in harmony with these natural principles, which include justice, fairness, and the protection of human rights. Natural law theorists believe that there are certain fundamental rights that all people possess, and that the law should protect these rights.
Some of the key thinkers associated with the Natural Law School include Aristotle, Thomas Aquinas, and John Locke. Aristotle believed that the law should promote the common good and that it should be based on reason and morality. Aquinas, a Christian theologian, argued that the law should be grounded in divine law and that it should promote the happiness of individuals and society. Locke, an English philosopher, held that the law should be based on the natural rights of individuals, such as the right to life, liberty, and property.
The Natural Law School has been influential in shaping the modern legal system, particularly in the area of human rights. The concept of natural rights, which is central to this school of thought, has been incorporated into various legal documents, including the United States Constitution and the Universal Declaration of Human Rights.
The Positivist School emerged in the 19th century as a response to the Natural Law School. Unlike natural law theorists, positivists believe that the law is not based on natural principles but is instead a set of rules and regulations that are created by human beings. According to this view, the law is a social construct that is shaped by historical, cultural, and political factors.
Positivists argue that the law is not concerned with morality or ethics but rather with maintaining social order and regulating human behavior. They maintain that the law is a product of the state and that it reflects the interests of those in power. As such, the law is subject to change and evolution over time.
Some of the key thinkers associated with the Positivist School include Jeremy Bentham and John Austin. Bentham, an English philosopher, believed that the law should be based on the principle of utility, or the greatest good for the greatest number of people. He argued that the law should be used to promote social welfare and to minimize human suffering. Austin, a British legal theorist, held that the law should be based on the commands of the sovereign, or the person or entity with ultimate authority in a society.
The Positivist School has had a significant impact on the development of modern legal systems, particularly in the area of statutory law. The emphasis on the importance of the state and its role in creating and enforcing laws has been incorporated into many legal systems around the world. This Law School is one of the oldest and most important schools.
The Historical School emerged in the 19th century in Germany as a response to the Positivist School. This school of thought emphasizes the importance of studying the historical development of the law in order to understand its nature and function. Historical school thinkers believe that the law is not simply a product of the state, but is shaped by social and cultural forces as well.
According to this view, the law is the product of a long historical process that has been shaped by the values and customs of a particular society. Historical school thinkers argue that the law should be studied in its historical context in order to understand its meaning and significance.
Some of the key thinkers associated with the Historical School include Gustav Hugo and Friedrich Carl von Savigny. Hugo believed that the law should be studied in its historical context, and that the legal system should evolve over time to reflect changes in society. Savigny, a German legal scholar, argued that the law is a product of the historical development of a particular society, and that it should be studied in relation to its cultural and social context.
The Historical School has had a significant impact on the development of legal scholarship, particularly in the area of legal history. The emphasis on the importance of studying the historical development of the law has helped to shape our understanding of the legal system and its evolution over time.
The Realist School emerged in the early 20th century in the United States as a response to the limitations of the Positivist and Historical Schools. Realists believe that the law is not simply a set of rules and regulations, but is a complex social phenomenon that is shaped by a variety of factors, including politics, economics, and social forces.
According to this view, the law is not simply a product of the state or the historical development of a society, but is shaped by a variety of external factors that are beyond the control of legal actors. Realists argue that legal decisions are often influenced by political considerations, economic pressures, and social norms, and that the law is therefore not always predictable or consistent.
Some of the key thinkers associated with the Realist School include Oliver Wendell Holmes Jr. and Jerome Frank. Holmes believed that the law should be studied in relation to its social context, and that legal decisions should be based on practical considerations rather than abstract principles. Frank, a legal philosopher and judge, argued that the law is influenced by a variety of external factors, including psychological and sociological factors, and that legal decisions should be studied in relation to these factors.
The Realist School has had a significant impact on legal scholarship, particularly in the area of legal realism. The emphasis on the importance of studying the social and cultural context of legal decisions has helped to shape our understanding of the legal system and its role in society.
The Sociological School emerged in the early 20th century in Europe as a response to the limitations of the Positivist School. Sociological school thinkers believe that the law is not simply a product of the state, but is shaped by a variety of social and cultural factors, including economic and political conditions, social norms, and cultural values.
According to this view, the law is a product of social interaction and reflects the interests and values of various social groups. Sociological school thinkers argue that the law should be studied in relation to its social context in order to understand its meaning and significance.
Some of the key thinkers associated with the Sociological School include Eugen Ehrlich and Max Weber. Ehrlich believed that the law is a product of social interaction and that it reflects the interests and values of various social groups. Weber, a German sociologist and legal scholar, argued that the law is a product of cultural values and that it reflects the interests and values of those in power.
The Sociological School has had a significant impact on legal scholarship, particularly in the area of legal sociology. The emphasis on studying the social and cultural context of the law has helped to broaden our understanding of the legal system and its role in society.
Feminist jurisprudence is a school of legal theory that examines the ways in which the law perpetuates gender inequality and seeks to promote the interests of women in the legal system. It emerged in the 1960s and 1970s as part of the broader feminist movement, which sought to challenge and transform traditional social, economic, and political structures that perpetuated gender discrimination and oppression.
Feminist jurisprudence critiques the ways in which legal systems have historically been dominated by men and have perpetuated patriarchal norms and values. It challenges the idea that the law is neutral and objective, arguing that legal systems have been designed to serve the interests of men and have ignored the experiences and needs of women.
Feminist legal theorists argue that law should be responsive to the experiences of women and should take into account the ways in which gender inequality shapes women’s lives. They argue that the law should be used as a tool to promote gender equality and to challenge patriarchal structures and practices.
Some of the key issues addressed by feminist jurisprudence include domestic violence, sexual harassment, reproductive rights, and the gender pay gap. Feminist legal theorists have also explored the ways in which intersectional factors such as race, class, and sexuality intersect with gender to shape the experiences of women.
Overall, feminist jurisprudence seeks to promote a legal system that is responsive to the needs and experiences of women and that promotes gender equality. It is an important and ongoing project that continues to shape legal theory and practice today. This Law School is one of the newest schools.
IV. CHART– Schools of Law in Jurisprudence, Proponents & Key Beliefs
|School of Jurisprudence||Proponents||Key Beliefs|
|Natural school of Jurisprudence.||Aristotle, St. Thomas Aquinas, Hugo Grotius||Law is based on universal moral principles that are inherent in human nature.|
|Positivist/Analytical school of jurisprudence.||John Austin, H.L.A. Hart||Law is the command of the sovereign backed by the threat of punishment.|
|Historical school of jurisprudence.||Friedrich Carl von Savigny, Henry Maine||Law evolves over time as a product of historical development and cultural traditions.|
|Realist school of jurisprudence||Oliver Wendell Holmes Jr., Karl Llewellyn,Jerome Frank||Law is a social construct and should be interpreted in light of social, economic, and political considerations.|
|Sociological school jurisprudence.||Eugen Ehrlich,Max Weber, Roscoe Pound||Law should reflect social needs and values and should be used to promote social justice.|
|Feminist school of Jurisprudence.||Catharine MacKinnon, Martha Fineman||Law reflects and perpetuates gender inequality and must be reformed to ensure equal rights and opportunities for women. Feminist jurisprudence seeks to reform the law to ensure that it recognizes and protects the rights and interests of women, and to promote gender equality in all areas of law and society. Feminist jurisprudence is a relatively new and evolving school of thought that emerged in the late 20th century.|
V. Criticisms of the Major Schools of Law
The field of legal theory is complex, and there are a number of different schools of thought that have emerged over the years. Each of these schools has its own set of principles and ideas about how the law should be understood and applied. However, each of these schools has also been subject to various criticisms and debates. Here we will discuss the criticisms of the major schools of law.
a) Criticisms of Natural Law School:
The Natural Law School is based on the idea that there are certain inherent, universal principles that should guide the development and interpretation of the law. These principles are thought to be discoverable through reason and natural order. However, this school has been criticized for its lack of specificity, as it can be difficult to determine what these natural laws actually are. Additionally, some argue that the idea of natural law is too subjective, as it can be influenced by personal beliefs and cultural values
The Natural School of Jurisprudence is a theory that posits that the law is based on universal principles that are inherent in human nature, and that these principles can be discovered through reason and logic. However, this theory has been subject to several criticisms over the years.
- Lack of consensus on what is “natural”: One of the main criticisms of the Natural School of Jurisprudence is that there is no consensus on what is considered “natural.” The concept of natural law is subjective, and what is considered natural by one person or group may not be considered natural by another. This lack of consensus makes it difficult to establish a universal set of principles that can guide legal decision-making.
- The law should be based on facts, not ideals: Another criticism of the Natural School is that the law should be based on facts and not on ideals. Natural law theorists argue that laws should be based on what is morally right or wrong, but critics argue that laws should be based on empirical evidence and should be designed to achieve specific goals, such as protecting public safety or promoting economic growth.
- The natural law is too abstract: Critics of the Natural School argue that the concept of natural law is too abstract and cannot be applied to concrete legal problems. They argue that the law must be grounded in specific, concrete principles that can be applied to real-world situations.
- The natural law is not immutable: Another criticism of the Natural School is that the natural law is not immutable, but rather is subject to change over time. Natural law theorists argue that the principles of natural law are fixed and eternal, but critics argue that these principles can change as society evolves and as our understanding of human nature changes.
- The natural law is not universally applicable: Finally, critics argue that the concept of natural law is not universally applicable. They argue that what is considered natural in one society or culture may not be considered natural in another, and that the concept of natural law is therefore limited in its ability to guide legal decision-making on a global scale.
b) Criticisms of the Positivist School
The Positivist School is based on the idea that the law is a set of rules created by human authorities. The positivist school of jurisprudence, also known as legal positivism, is a legal theory that emphasizes the formal sources of law, such as statutes, judicial decisions, and legal codes, as the sole basis for determining what the law is. While this approach has been influential in shaping modern legal systems, it has also been subject to criticism, some of which are as below:
- Moral Criticisms: One of the main criticisms of Positivist school is that it separates law from morality. Critics argue that the law should be based on moral principles, and that the positivist approach allows for unjust laws to be enforced as long as they are formally valid.
- Narrow Scope: Positivist school also has a limited scope, as it only focuses on the formal sources of law and ignores the social, economic, and political factors that can influence legal decision-making. This narrow approach can lead to an incomplete understanding of how the law operates in practice.
- Lack of Guidance: Another criticism of legal positivism is that it provides little guidance for resolving legal disputes or making legal decisions. Because the positivist approach emphasizes the formal sources of law over all other factors, it can be difficult to determine how to apply the law in specific cases.
- Ignoring Historical and Cultural Context: Legal positivism also fails to take into account the historical and cultural context in which the law is developed and enforced. This can lead to a failure to recognize the impact of social norms and cultural traditions on legal decision-making.
- Political Bias: Critics also argue that legal positivism is politically biased, as it tends to reflect the interests of those in power. This can lead to the perpetuation of unjust laws and systems of oppression.
c) Criticisms of Historical School
The Historical School emphasizes the importance of historical context and tradition in the development of the law. However, it has been criticized for its tendency to rely too heavily on the past and to resist change. Critics argue that this can result in a stagnant and inflexible legal system that is unable to adapt to new circumstances and social changes. Some criticisms of this school, include:
- Lack of flexibility: The Historical School tends to be very conservative and resistant to change. Its focus on tradition and historical precedent can lead to a reluctance to adapt to new social and economic conditions. This can be seen in the way that some legal systems that are heavily influenced by the Historical School continue to adhere to outdated laws and practices.
- Stagnation: The Historical School can also be criticized for its emphasis on the past at the expense of the present and future. This can lead to a stagnation of legal thinking, as practitioners and scholars focus on the past rather than exploring new ideas and innovations. This can be particularly problematic in areas such as technology and intellectual property law, where rapid changes are occurring.
- Lack of universality: Another criticism of the Historical School is that its emphasis on the unique historical and cultural context of each society can lead to a lack of universality in legal thinking. This can make it difficult to apply legal principles across different cultures and societies and can lead to a lack of consistency and predictability in legal outcomes.
d) Criticisms of the Realist School:
The Realist School emphasizes the importance of the social and political context in which legal decisions are made. It has been criticized for its lack of attention to legal principles and the rule of law. Critics argue that this approach can lead to an overly subjective and politicized legal system, where the law is used to advance particular interests rather than to promote justice and the common good. Several criticisms of the realist school of jurisprudence include:
- Lack of coherence: Realism is a broad and multifaceted movement, and its adherents have varied views on the nature of law and legal reasoning. This lack of coherence can make it difficult to pin down exactly what the realist position is.
- Overemphasis on judicial decision-making: Realists tend to focus heavily on judicial decision-making, to the exclusion of other aspects of legal practice, such as legislative and administrative action. This narrow focus can lead to an incomplete understanding of the role of law in society.
- Neglect of legal principles: Realists often argue that legal decisions are shaped by factors such as the judge’s personal beliefs and social context, rather than legal principles. While it is certainly true that these factors can influence legal decision-making, the realist emphasis on them can lead to a neglect of the importance of legal principles.
- Lack of normative guidance: Realism is primarily a descriptive theory of law, focused on how the law actually operates in practice. As such, it provides little normative guidance on how the law ought to operate or what principles should guide legal decision-making.
- Criticisms of relativism: Critics of the realist school argue that its emphasis on the contingency and contextual nature of legal decision-making can lead to a kind of relativism, in which there are no objective standards for legal reasoning. This can undermine the legitimacy of the legal system as a whole.
e) Criticisms of Sociological School:
The sociological school of jurisprudence is a legal theory that focuses on the social context of law, rather than the abstract principles of justice or natural law. While this theory has its strengths, there are also several criticisms that have been levelled against it :
- Lack of objectivity: Critics of the sociological school argue that it is not truly objective, because it is based on subjective interpretations of social phenomena. Since sociologists cannot completely divorce themselves from their own social and cultural biases, this may affect their analysis of law and society.
- Overemphasis on social context: Another criticism of the sociological school is that it places too much emphasis on the social context of law, to the detriment of other important legal considerations, such as fairness, justice, and individual rights.
- Failure to account for legal norms: Some critics argue that the sociological school fails to account for the role that legal norms play in shaping social behaviour. According to this view, legal rules and principles are not simply a reflection of social norms, but also help to shape and guide them.
- Insufficient attention to legal theory: Finally, some critics argue that the sociological school places too little emphasis on legal theory, such as natural law or legal positivism. While the sociological approach may provide important insights into the social context of law, it may not fully capture the normative dimensions of legal reasoning and decision-making.
f) Criticisms of the Feminist School of Jurisprudence:
The feminist school of jurisprudence is a legal theory that focuses on analyzing the ways in which the law perpetuates gender inequality and advocates for legal and social changes to address these inequalities. While this theory has contributed greatly to the understanding of gender and the law, it has also been subject to criticism. Some common criticisms of the feminist school of jurisprudence include:
- Essentialism: Some critics argue that feminist legal theorists essentialize women by assuming that they share common experiences, perspectives, and interests. This can lead to a narrow and exclusionary view of gender that fails to account for the diversity of women’s experiences.
- Over-generalization: Critics argue that feminist legal theorists often over-generalize the experiences of women and assume that gender is the sole determinant of women’s experiences. This can lead to a neglect of other factors such as race, class, sexual orientation, and religion that also contribute to women’s experiences.
- Lack of engagement with other legal theories: Some critics argue that feminist legal theorists have not engaged sufficiently with other legal theories such as critical legal studies, postmodernism, and liberalism. This can lead to a lack of theoretical richness and a failure to fully engage with the complexities of legal issues.
- Overemphasis on law reform: Some critics argue that feminist legal theorists have placed too much emphasis on law reform and have neglected other avenues for social change such as activism, community organizing, and cultural change.
- Lack of empirical research: Some critics argue that feminist legal theorists have not engaged sufficiently with empirical research and have relied too heavily on anecdotal evidence and personal experience. This can lead to a lack of rigor and a failure to test their theories against empirical evidence.
Studying the schools of law provides us with a historical and global perspective on the evolution of legal systems and their relationship to social, political, and economic contexts. It allows us to appreciate the diversity of legal traditions and to recognize the ways in which the law can both shape and be shaped by cultural norms and values. There are several areas of research that could benefit from a deeper understanding of the different schools of law. For instance, scholars could explore the ways in which legal education and training can better incorporate a critical understanding of the law and its social and political contexts. They could also examine the ways in which legal institutions, such as courts and legislatures, incorporate or exclude different perspectives in their decision-making processes.
Additionally, there is a need for research that explores the relationship between legal systems and broader social, political, and economic trends. This could include investigating the ways in which legal systems respond to globalization, technological change, or shifting cultural norms. It could also involve examining the impact of legal systems on issues such as poverty, inequality, and social justice.
In conclusion, studying the different schools of law has significant implications for our understanding of the legal system and its role in society. By critically evaluating the law and recognizing the diversity of legal traditions, we can better appreciate the complexity of legal reasoning and promote a more just and equitable legal system.
References: Schools of Law
 Bix, B. (2011). Jurisprudence: Theory and Context (7th ed.). Sweet & Maxwell.
 Marmor, A. (2019). Philosophy of Law (3rd ed.). Princeton University Press.
 MacCormick, N. (2007). Legal Reasoning and Legal Theory (3rd ed.). Oxford University Press.
 Austin, J. (1832). The Province of Jurisprudence Determined. London: John Murray.
 Raz, J. (2009). The Authority of Law: Essays on Law and Morality (2nd ed.). Oxford University Press.
 Brian Bix, “Legal Theory,” Stanford Encyclopedia of Philosophy, accessed April 30, 2023.