Jurisprudence and Legal Theories · Chapter 4
Study notes aligned to the official NEB syllabus.
Jurisprudence studies the nature and purpose of law. But jurists have never agreed on one answer to the question "what is law?" Over the centuries several schools of thought grew up. Each one looks at law from a different angle. Each one captures a different face of it. A student can picture the schools as six observers standing around the same object. The first asks whether the law is just. The second asks what the sovereign has commanded. The third asks how the law grew out of the nation's past. The fourth asks what good the law does for society. The fifth asks what the courts will actually do. The sixth asks whose economic interests the law serves. Understanding all six gives a rounded view of law.
The natural law school is the oldest current of legal thought. It holds that above the law made by the state there stands a higher law. This higher law is universal. It is founded on reason, morality and nature. On this view, man-made law (positive law) is valid only so far as it agrees with the higher law. Its maxim is often put as lex injusta non est lex. This means an unjust law is not truly law. The idea runs a long way through history. It began with the Greek and Roman thinkers. Thomas Aquinas gave it a Christian form and derived human law from eternal and divine law. Hugo Grotius and later writers gave it a rational, secular form. They made it the basis of international law and of the idea of natural rights.
The school's great contribution is clear. It links law to justice and morality. It supplies a standard by which bad laws can be criticised and reformed. Its weakness is also clear. The words "nature" and "reason" are vague. Different thinkers draw different, even opposite, rules from them. An example makes the idea clear. Suppose a government passes a statute. The statute orders that one community may be denied the use of public wells. A natural lawyer would answer this way. The law was passed in proper form. But it violates the higher law of equality and human dignity. So it has no true moral authority. This is more than theory in Nepal. The Constitution of Nepal 2015 writes natural-law ideals into positive law. It guarantees equality in Part 3. It guarantees the right against untouchability and discrimination. It makes any ordinary law that conflicts with those rights void to the extent of the conflict. The natural law school thus explains something important. It explains why constitutions place certain basic rights beyond the ordinary reach of the legislature.
The analytical school is also called the positivist or imperative school. It studies law as it is (positum, as laid down) rather than as it ought to be. It treats law as the command of the state. Its leading figure is John Austin, the founder of the command theory. For Austin, law is the command of the sovereign backed by a sanction. He analysed this into three parts. The first is a command. This is a general order to do or not do something. The second is a sovereign. This is a determinate political superior whom the bulk of society habitually obeys and who obeys no one else. The third is a sanction. This is the evil or penalty that follows disobedience.
Austin separated law sharply from morality. Whether a rule is law depends on one thing. It depends on whether the sovereign commanded it. It does not depend on whether the rule is just. An example shows the method at work. The Muluki Penal Code 2074 provides that whoever commits theft shall be punished. The analytical jurist reads this as a general command. It comes from the law-making authority. It is addressed to everyone. It is made binding by the threat of imprisonment or fine. Whether the punishment is morally ideal is, for this school, a separate question. The school's merit is its clear, precise analysis of legal concepts. This is why jurisprudence is called the grammar of law. Its defects are real too. It ignores custom, precedent and the moral and social roots of law. Its idea of a single determinate sovereign fits a modern constitutional and federal state poorly. Take Nepal as an example. Under the Constitution of Nepal 2015 sovereignty rests in the people. It is exercised through a constitution, through federal and provincial legislatures, and through an independent judiciary. It does not rest in one commander who obeys no one. So Austin's picture of a single human superior has to be heavily qualified.
The historical school has Friedrich Karl von Savigny as its leading figure. It holds that law is not made deliberately. Instead law grows, like language and custom, out of the life of a people. It grows out of their common consciousness. Savigny called this the Volksgeist. The word means the spirit or genius of the nation. On this view law is found, not invented. It develops slowly and organically from the habits, beliefs and traditions of the community. The legislator can only express and refine what already lives in the people's consciousness.
The school rightly stresses custom. It rightly stresses the gradual, national character of law. A clear example in Nepal is the law of family and property. For centuries certain matters were governed by long-standing social practice. These included partition of joint family property (अंशबण्डा) and inheritance. The Muluki Civil Code 2074 was then enacted. It did not conjure these rules from nothing. It largely codified and refined customs the people already followed. That is exactly the organic growth Savigny described. The statute put into written, refined form what already lived in the national life. The school also has a weakness. It underrates the power of deliberate legislation. In the modern welfare state legislation is the chief instrument of legal change. It is used to create entirely new rules on matters that no ancient custom foresaw. Examples are the environment, companies and electronic transactions.
The sociological school studies law in relation to society. It does not treat law as a set of abstract commands. It treats law as a means of ordering human relations and serving social needs. Its best-known exponent is Roscoe Pound. He described law as a form of social engineering. The task of law is to balance and reconcile the competing interests of individuals and of society. It should do this with the least friction and waste. This is much as an engineer builds to serve human purposes. The school asks practical questions. How does law actually work in society? Whom does it serve? Does it meet social needs? It favours using law as an instrument of social reform.
An example brings out the "balancing of interests." Consider a factory beside a residential settlement. The owner has an interest in running his business. The neighbours have an interest in clean air and quiet. Society has an interest in industry. Society also has an interest in public health. Law acts as the social engineer that balances these competing interests. It allows the factory. But it requires the factory to control its pollution and its noise. In Nepal the same engineering spirit is visible. It appears in protective labour, consumer and environmental legislation. That legislation weighs private enterprise against social welfare. The school's strength is its realism and its concern with the effects of law. Its difficulty is that "social interest" and "social welfare" are hard to measure and weigh against one another.
The realist school is strongest in the United States. It carries the sociological concern one step further. It focuses on what courts and judges actually do. It does not focus on the rules in the books. Its pioneer is Justice Oliver Wendell Holmes. The realists argue that law is not a set of logical rules worked out in the abstract. Law is a prediction of how courts will in fact decide. That prediction is shaped by the judge's experience, psychology and the social context. Holmes stressed that the growth of the law owes more to experience than to logic. Taking the practical standpoint of a client, he treated law as in substance a prophecy of what the courts will do in fact.
An example explains the realist outlook. Suppose two lawyers read the same section of a statute. Yet each advises his client differently about the likely result of a case. For the realist, the law on that point is not simply the printed words. The law is what the court will actually decide when the words are applied to the facts by a particular judge. That is why experienced counsel study how the courts have behaved. They do not study merely what the rule says. The school usefully reminds us that law lives in its application. It reminds us that judicial discretion and human factors matter. This is relevant anywhere that higher-court interpretation shapes the real meaning of a provision. Its weakness is that it concentrates too much on the courtroom. It underplays the general rules that guide most conduct outside litigation. After all, most people obey the law without ever going near a court.
The economic or socialist school explains law by the economic structure of society. Its foundation is the thought of Karl Marx. For Marx, law is part of the superstructure of society. This superstructure rests on and reflects the economic base. The base is the prevailing mode of production and the relations of property. On this view law is not neutral. In a class-divided society it is an instrument of the dominant economic class. That class uses law to protect its interests. It uses law to keep its control over the rest. Marx predicted a future classless, communist society. In it private property and class antagonism would disappear. He predicted that the coercive law and state would then gradually become unnecessary and "wither away."
An example shows the base-superstructure idea. Imagine a society where most land is held by a few large owners. On this view the law of property, contract and tenancy tends to protect that ownership. It also protects the bargains the owners make. So the legal order mirrors and secures the existing economic arrangement. The school's contribution is valuable. It exposes the link between law, property and economic power. It inspired protective labour laws, land-reform measures and social-welfare legislation. These try to correct the balance in favour of the weaker economic class. Nepal's own land-reform and labour-protection laws reflect that concern. Its weakness is that it reduces law wholly to economics. It understates law's other roles in keeping order and doing justice. After all, even a classless society would need rules of the road, of marriage and of procedure. These have little to do with the mode of production.