Schools of Jurisprudence

Mnemonic for the order of the major schools: Natural (ancient) then Positivist (nineteenth century) then Historical (early nineteenth, a reaction to codification) then Sociological (late nineteenth and twentieth) then Realist (early twentieth) then Critical (late twentieth).

Basic position: there exists a higher law, derived from nature, reason, God or human nature, which is superior to man-made law and provides the standard by which the justice of positive law is measured. The slogan associated with it is lex iniusta non est lex (an unjust law is no law), which comes from St Augustine and is developed by Aquinas.

Stages of development (very important for chronological questions):

(a) Greek natural law

• Heraclitus and the Sophists debated physis (nature) against nomos (convention).

• Socrates, Plato and Aristotle: Plato's Republic describes justice as each class performing its proper function. Aristotle (in Nicomachean Ethics and Politics) distinguished natural justice (valid everywhere with the same force) from legal or conventional justice, and divided justice into distributive and corrective (rectificatory) justice. He said man is a political animal.

• The Stoics (Zeno, Epictetus, Marcus Aurelius) taught that the universe is governed by reason (logos), and that all men, being rational, are subject to a universal law of nature.

(b) Roman natural law

• Cicero in De Re Publica described true law as right reason in agreement with nature, of universal application, unchanging and everlasting.

• Roman jurists developed the jus naturale, the jus gentium (law of nations) and jus civile (civil law). Gaius and Ulpian explained these categories.

(c) Medieval natural law (the theological phase)

• St Augustine (City of God): an unjust law does not seem to be law.

• St Thomas Aquinas (Summa Theologica) gives the most famous classification of law, a four-fold scheme:

  • Lex aeterna (eternal law): the divine reason governing the whole universe.

  • Lex divina (divine law): the revealed law of Scripture.

  • Lex naturalis (natural law): man's participation in the eternal law through reason.

  • Lex humana (human law): the rules made by human authorities, derived from natural law, and valid only if consistent with it.

• Aquinas defines law as an ordinance of reason for the common good, made by one who has care of the community, and promulgated.

(d) The Renaissance and the age of reason (the secular, rationalist phase)

• Hugo Grotius (1583 to 1645), the 'father of international law', in De Jure Belli ac Pacis (1625) argued that natural law would exist even if God did not exist, because it rests on human reason and man's social nature (appetitus societatis). He separated natural law from theology.

• Thomas Hobbes (Leviathan, 1651): in the state of nature life is 'solitary, poor, nasty, brutish and short'; men surrender their rights to an absolute sovereign through a social contract for security.

• John Locke (Two Treatises of Government, 1689): in the state of nature men have natural rights to life, liberty and property; government exists by consent to protect these, and may be resisted if it breaches the trust. Locke influenced the American Declaration of Independence and constitutionalism.

• Jean-Jacques Rousseau (The Social Contract, 1762): 'Man is born free and everywhere he is in chains'; sovereignty rests in the general will of the people.

• Immanuel Kant (Metaphysics of Morals, Rechtslehre): the categorical imperative; law is the sum of conditions under which the freedom of one can co-exist with the freedom of all according to a universal law of freedom.

(e) Decline in the nineteenth century: the natural law approach was attacked by the historical school (Savigny), utilitarians (Bentham called natural rights 'nonsense upon stilts') and positivists (Austin). It was seen as vague and subjective.

(f) Revival in the twentieth century: two World Wars, the Nazi regime and the Nuremberg trials revived the idea that there are limits to the validity of positive law.

• Rudolf Stammler (Theory of Just Law): natural law with a variable content. The form of just law is constant, the content changes with time and place. He proposed the social ideal of a community of free-willing men, and two principles of respect and participation.

• Josef Kohler: law as an evolving civilisation; 'jurisprudence of culture' (neo-Hegelian).

• Giorgio del Vecchio: natural law as the inherent consciousness of justice in man.

• Gustav Radbruch: after WWII, advanced the Radbruch formula: a positive law, even if duly enacted, must yield to justice where the contradiction is intolerable (extreme injustice is not law).

• Lon Fuller (The Morality of Law, 1964): the procedural natural law of eight desiderata (see Topic 1) and the claim that law has an inner morality. Fuller's argument in the Hart–Fuller debate (Harvard Law Review, 1958) is the classic 'natural law reply' to positivism.

• John Finnis (Natural Law and Natural Rights, 1980): a new natural law approach drawn from Aquinas, setting out the basic goods: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness and religion. Finnis argues that law's moral force is a central case matter: unjust laws are law in a defective sense.

• Ronald Dworkin: principles in law (see Dworkin below) and his 'moral reading' of the Constitution, a neo-natural law element although he does not use the label.

• John Rawls (A Theory of Justice, 1971): a modern social-contract account of justice (see Topic 9).

The Hart–Fuller debate (1958) in detail:

• Context: the post-war German informer case: a woman denounced her husband under a Nazi statute for insulting remarks about Hitler; after the war, she was prosecuted for illegally depriving him of liberty. The question was whether the Nazi statute was 'law'.

• Hart (positivist): the Nazi statute was law, but it was so evil that it should not be obeyed. The right solution is to pass a retrospective statute and say openly that it is a departure from the principle against retroactivity, and to separate the question of 'what law is' from 'what it ought to be'.

• Fuller (natural law): a system so flawed that it fails to meet the inner morality of law is not law at all; such a regime is incompatible with the idea of legality. The court should have refused to apply the statute.

• Hart's reference to the core and penumbra: a rule has a core of settled meaning and a penumbra of uncertainty, the standard example being a rule that bans vehicles in a park (does it ban roller skates?). Fuller answered that interpretation involves purpose, not merely words.

Features of natural law thinking (for 'which of the following' questions):

• Law and morality are necessarily connected.

• Law has a moral validity test, unjust rules are defective or void.

• Law is discovered by reason, not merely made.

• It supplies a critical standard for judging and reforming positive law.

• It has been used both to support revolution (Locke, American and French Revolutions) and to justify the status quo (feudal order under medieval theology).

Indian connection: the Indian concept of Dharma has features of natural law (a universal order). In constitutional adjudication, the Supreme Court's use of basic structure (Kesavananda Bharati v State of Kerala, 1973), the reading of natural justice and 'due process' into Article 21 (Maneka Gandhi v Union of India, 1978), and the expansion of fundamental rights are often analysed as natural-law-flavoured reasoning. In Golak Nath (1967), fundamental rights were treated as 'natural rights' beyond amendment, although that decision was later overruled in Kesavananda.

Criticisms: vagueness and subjectivity (whose reason? whose nature?); confusion between is and ought; has been used to justify contradictory positions; Hume's guillotine says one cannot derive an 'ought' from an 'is'; and the failure to explain why an immoral rule can still be valid (because validity and justice are different).

Basic position: law is a matter of social fact, not moral merit. The separation thesis is that there is no necessary connection between law and morality, and the sources thesis is that the existence of law depends on social sources (who made it, how), not its content.

Bentham (1748 to 1832):

• Founder of utilitarianism: the principle of utility requires that the right act or law is the one which produces the greatest happiness of the greatest number. He measured pleasure and pain through the hedonic (felicific) calculus with seven factors: intensity, duration, certainty, propinquity (nearness), fecundity, purity and extent.

• Works: A Fragment on Government (1776), An Introduction to the Principles of Morals and Legislation (1789), Of Laws in General, Limits of Jurisprudence Defined.

• Rejected natural rights and the social contract; supported codification; classified law into expositorial and censorial; and coined the terms international law, codification and utilitarian.

John Stuart Mill: Utilitarianism (1863), On Liberty (1859): introduced a qualitative distinction among pleasures ('better to be Socrates dissatisfied than a fool satisfied') and the harm principle (power may be rightfully exercised over an individual against his will only to prevent harm to others). The harm principle is central in the law and morality debate (Topic 3).

John Austin: see Topic 1.3.

H.L.A. Hart (1907 to 1992) The Concept of Law (1961): the leading modern positivist, Professor of Jurisprudence at Oxford.

• Criticism of Austin: the gunman analogy shows the 'command and threat' model cannot account for obligation; the model cannot explain power-conferring rules, continuity of legislative authority, customary law, or the self-binding nature of the legislature.

• Distinction between 'being obliged' and 'having an obligation': a gunman obliges you to hand over money, but you are not under an obligation to do so.

• Law as the union of primary and secondary rules:

  • Primary rules impose duties (what people must or must not do). They solve the problem of static rules.

  • Secondary rules are rules about rules. They are of three types: the rule of recognition (identifies valid rules; solves the problem of uncertainty), rules of change (provide for making and altering rules; solve the static quality), and rules of adjudication (empower courts to decide breaches; solve the inefficiency of social pressure).

• The rule of recognition is the ultimate rule of the system. It is not itself 'valid' or 'invalid', it simply exists as a matter of fact (accepted by officials). It is the key to the concept of legal validity.

• Internal and external point of view: the internal point of view is that of someone who accepts the rule as a standard of conduct (the participant), and the external point of view is that of an observer who only records regularities. Law cannot be understood from the external viewpoint alone.

• Open texture of law: because language is general, every rule has a core of settled meaning and a penumbra of doubt where judges exercise discretion.

• Minimum content of natural law: Hart accepted that there are certain truisms about human nature which give law a minimum moral content: human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. Hence rules protecting persons, property and promises are present in all societies. This is often tested as 'Hart's concession to natural law'.

• Hart's theory of justice and morality: he distinguishes legal obligation from moral obligation, and recognises that morals can influence law, but does not require it for validity.

• Hart versus Devlin (1959 onwards): see Topic 3.

• Hart on punishment: Punishment and Responsibility (1968): the justifying aim of punishment is general deterrence, but it is limited by retributive principles of who may be punished and how much (a mixed theory).

Joseph Raz (1939 to 2022): developed exclusive (hard) legal positivism: legal validity depends only on sources (social facts), never on moral criteria. His works include The Authority of Law (1979) and The Morality of Freedom (1986). He developed the 'service conception of authority'. In contrast, inclusive (soft) positivism (Hart's Postscript, Jules Coleman, W.J. Waluchow) allows that a legal system may incorporate moral criteria in its rule of recognition (for example, a constitutional bill of rights).

Key differences within positivism:

Ronald Dworkin (1931 to 2013): Taking Rights Seriously (1977), Law's Empire (1986), A Matter of Principle (1985), Justice for Hedgehogs (2011), Justice in Robes (2006), Freedom's Law (1996).

• Attack on positivism: a legal system contains not only rules but also principles (standards observed because they are a requirement of justice, fairness or morality) and policies (standards setting a goal for community welfare). Rules apply in an all or nothing fashion, principles have weight and can be balanced against each other. Hart's rule of recognition cannot identify principles by pedigree alone.

• Hard cases and the rights thesis: in hard cases the judge does not have strong discretion; the judge must find the right answer by constructing the theory that best fits and justifies the existing legal materials. Judges decide on principle (rights), not on policy, which belongs to the legislature.

• Hercules: the ideal, superhumanly learned and patient judge who can construct such a theory.

• Law as integrity: in Law's Empire, law is an interpretive concept; the judge is a writer of a chain novel, adding a chapter that fits the earlier chapters, and showing the practice in its best moral light. Integrity combines fit and justification. Law's Empire opposes conventionalism and pragmatism.

• Cases cited by Dworkin: Riggs v Palmer (1889, New York: a murderer cannot inherit from his victim under the will, the principle that no man may profit from his own wrong) and Henningsen v Bloomfield Motors (1960, on freedom of contract and unequal bargaining power).

• Rights as trumps: individual rights trump collective goals.

• Hart's reply (Postscript to The Concept of Law, 1994): principles can be identified by the rule of recognition if the system uses inclusive criteria; Dworkin's theory misunderstands the descriptive nature of Hart's project.

Hans Kelsen (1881 to 1973), Austrian jurist and the principal drafter of the 1920 Austrian Constitution. Works: Pure Theory of Law (1934, revised 1960), General Theory of Law and State (1945).

Aims and the idea of purity:

• Methodological purity: law should be studied as it is, not as it ought to be morally. Kelsen wanted to purge jurisprudence of psychology, sociology, ethics and political theory. This is a science of law, not a theory of justice.

• Is and ought: a norm is an 'ought' proposition. Natural science deals with causality (is), legal science with imputation (if X then ought to follow Y).

• A legal norm is valid if it belongs to a legal order which is, on the whole, efficacious. Validity comes from a higher norm, not from the facts.

The hierarchy of norms (Stufenbau): every lower norm derives validity from a higher norm: individual decision then statute then constitution then Grundnorm (basic norm). The Grundnorm is not enacted, it is a presupposition of juristic thinking: 'one ought to obey the historically first constitution'. It is a transcendental-logical presupposition (borrowed from Kant), not a moral or natural-law norm.

Other features:

• Law is a coercive order: it attaches sanctions to conduct.

• State and law are identical: the State is merely the personification of the legal order; Kelsen rejected the dualism of state and law.

• Static and dynamic systems of norms: in a static system norms are valid because of their content (as in morality), in a dynamic system norms are valid because they were created in a particular way, which is the character of law.

• Public and private law distinction: Kelsen rejected it as ideological. Rights and duties: a right is merely a reflex of a duty.

• International law: Kelsen advocated the primacy of international law (monism).

• Grundnorm and revolutions: when a revolution succeeds and the new regime becomes effective, the Grundnorm changes. This explains the following decisions, often asked:

  • State v Dosso (1958, Pakistan): Munir CJ applied Kelsen to hold that the successful coup of 1958 created a valid legal order. This was overruled in Asma Jilani v Government of Punjab (1972).

  • Uganda v Commissioner of Prisons, ex parte Matovu (1966): the Ugandan High Court held that the 1966 revolution had created a new legal order with a new Grundnorm.

  • Madzimbamuto v Lardner-Burke (1968) (Rhodesia): the court considered the Unilateral Declaration of Independence and the Grundnorm. The Privy Council held the illegal regime had no legal authority, whereas the General Division of the High Court in Rhodesia had recognised the new regime on the basis of Kelsen's reasoning. (Rhodesia: also R v Ndhlovu, 1968.)

Criticisms: the Grundnorm is a fiction and is not needed; the theory is too formal and ignores the content of law and justice; the dependence on 'efficacy' compromises purity; Hart said it is wrong to see the rule of recognition as presupposed rather than a social fact; Julius Stone said the theory is 'empty'; and Kelsen's thesis that every legal norm is a conditional sanction-rule is oversimplified.

Kelsen versus Austin versus Hart (a standard comparative table):

Basic position: law is not a product of deliberate legislation or abstract reason. It is a gradual, organic growth, rooted in the history, customs and genius (Volksgeist) of a people, in the same way as language. The school arose in Germany as a reaction against the French Revolution, natural law rationalism and the movement for codification.

Precursors:

• Montesquieu (The Spirit of the Laws, 1748): laws are shaped by climate, soil, religion, customs, commerce and the form of government. He is often called a precursor of both the historical and sociological schools and of the doctrine of separation of powers.

• Edmund Burke: a conservative who stressed continuity, tradition and slow reform in opposition to the French Revolution.

• Gustav Hugo: a German jurist who taught that law is the product of the nation's growth and that positive law need not be rationalised.

Friedrich Karl von Savigny (1779 to 1861): the chief exponent.

• Controversy with Thibaut (1814): Thibaut, a Heidelberg professor, urged a uniform civil code for the German states. Savigny replied in his pamphlet Of the Vocation of Our Age for Legislation and Jurisprudence (1814) that Germany was not ready for a code: the science of law was undeveloped, and a code would freeze and distort what ought to evolve. The result was a delay of codification until the German Civil Code (BGB) of 1900.

• Volksgeist (the spirit of the people): law, like language, originates in the common consciousness of the people. It is found, not made. Law grows with the people, strengthens with them, and finally dies when the nation loses its individuality.

• Custom as the first source: law first appears as custom, then as juristic law (developed by lawyers as representatives of the people), and finally legislation, which should merely give effect to the popular will.

• Principal works: System of Modern Roman Law (System des heutigen romischen Rechts, 1840 to 1849), and The Law of Possession (Das Recht des Besitzes, 1803), a work that made his early reputation.

• Georg Friedrich Puchta, a pupil of Savigny, extended the idea in his work on customary law (Das Gewohnheitsrecht) and claimed that custom stands above statutes and that the jurist is a mediator between the Volksgeist and the law.

Sir Henry Maine (1822 to 1888): the English historical jurist and a member of the Viceroy's Council in India (the Law Member in 1862 to 1869), who applied the historical method to comparative legal history, including India.

• Works: Ancient Law (1861), Village Communities in the East and West (1871), Early History of Institutions (1875), Early Law and Custom (1883), Dissertations on Early Law and Custom.

• From status to contract: 'the movement of the progressive societies has hitherto been a movement from Status to Contract.' In early societies a person's rights and duties derived from family status; in progressive societies they derive from freely made contracts.

• Static and progressive societies: only the progressive societies develop their law beyond early customary stages.

• Stages in the development of law: (1) law by Themistes (judgments dictated by the king under divine inspiration, as in Homer); (2) customary law, held by an aristocratic minority; (3) codes (the Twelve Tables of Rome, the Laws of Manu in India, the Code of Draco in Athens); (4) instruments of legal change: legal fictions, equity and legislation, in that order.

• Patriarchal theory: primitive society was composed of patriarchal families, not individuals.

• Indian dimension: Maine's discussion of the Indian village community and of the Hindu law of caste and joint family has had a lasting influence on colonial legal studies.

Merits of the historical school: it introduced the idea of evolution, gave a scientific, comparative understanding of law, showed the role of custom, and warned against hasty legislation. Criticisms: the Volksgeist is vague and unprovable; the school overstates the role of custom and undervalues legislation; it ignores the role of deliberate reform and conscious legal planning (as in modern welfare states); the idea of one 'national spirit' ignores the diversity of groups; it was misused by Nazi ideology to glorify race and nation; and ironically, Savigny's own work is based on Roman law, a foreign import.

Basic position: law is a social phenomenon and an instrument of social control. It must be studied in its actual working and its effects on society (not just as an abstract rule), and it should be a tool to satisfy social interests. The approach is functional.

Forerunners:

• Auguste Comte (1798 to 1857): founder of positivism and of sociology; the 'law of three stages' (theological, metaphysical and positive).

• Herbert Spencer: an organic analogy of society and 'survival of the fittest'; wrote Social Statics.

• Montesquieu (see above).

Emile Durkheim (1858 to 1917): The Division of Labour in Society (1893).

• Law is the visible index of social solidarity.

• Mechanical solidarity (found in simple societies, based on likeness) is sustained by repressive law (penal), while organic solidarity (in complex societies with division of labour, based on interdependence) is sustained by restitutive (cooperative) law (civil, commercial, administrative).

• Law is a social fact; crime offends the collective conscience.

Rudolf von Ihering (1818 to 1892): a German jurist, one of the main founders of the sociological and teleological approach, who moved from conceptual jurisprudence to a purposive theory.

• Works: Law as a Means to an End (Der Zweck im Recht, 1877 to 1883), The Struggle for Law (Der Kampf ums Recht, 1872), Spirit of Roman Law.

• Law is the sum of the conditions of social life assured by the State through external compulsion. Law is created for a purpose (the interest of society), and 'purpose is the creator of the entire law'.

• Social utilitarianism: he combined the idea of social interest with the individual's interest; he held that rights are legally protected interests.

• The struggle for law: it is an individual's moral duty to assert and defend his rights, and the sum of such struggles creates law.

Eugen Ehrlich (1862 to 1922): Austrian jurist, the founder of the sociology of law (a free law thinker).

• Work: Fundamental Principles of the Sociology of Law (Grundlegung der Soziologie des Rechts, 1913).

• Living law: the true centre of gravity of legal development 'lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself'. The living law is the law which dominates life even though not posited in legal propositions, as against the state law (norms for decision), which is made by the State.

• Studied the actual customs of the Bukovina region (then in Austria) for evidence.

Leon Duguit (1859 to 1928): French jurist, a leader of the solidarism approach.

• Works: Law in the Modern State, Les Transformations du droit public, Traite de droit constitutionnel.

• Law is based on social solidarity (interdependence of men, an idea he took from Durkheim). Social function, not rights, is the basic concept: property is a social function; there are no natural or subjective rights, only duties of each person to contribute to social interdependence.

• The State is not a sovereign commanding, but a cooperative of public services. The public service is the key concept of public law.

Roscoe Pound (1870 to 1964): Dean of Harvard Law School, the main American sociological jurist.

• Works: The Scope and Purpose of Sociological Jurisprudence (1911 to 1912), An Introduction to the Philosophy of Law (1922), Interpretations of Legal History (1923), Social Control through Law (1942), Jurisprudence (five volumes, 1959).

• Law as social engineering: law is a social institution to satisfy social wants, to the maximum extent with the minimum friction and waste. Jurisprudence is a social engineering of balancing competing interests, as an engineer builds a structure.

• Interests protected by law (three categories):

  • Individual interests: personality, domestic relations, interests of substance (property, succession, freedom of industry and contract).

  • Public interests: interests of the State as a juristic person, and as guardian of social interests.

  • Social interests: general security, security of social institutions, general morals, conservation of social resources, general progress and individual life (the social interest in the individual's human life).

• Jural postulates: the statements about what should be in a given civilisation, for example that people must be able to assume that others will not commit intentional aggression, and that men must act with due care.

• Law in books and law in action: the gap between the formal rule and how it works in practice. He urged the study of the working of law and the effects of legal doctrines on society.

• Theory of social control: law is a developed form of social control, among religion and morality, as the society gets more complex.

• Criticisms: the theory of 'interests' is vague and has no principle for ranking them; the 'engineering' metaphor suggests a technocratic, uncritical approach; and the theory gives the judge too much room.

Max Weber (1864 to 1920): Economy and Society. Three types of legitimate authority: traditional, charismatic and legal-rational. Weber analysed the rationalisation of law, identifying formal rationality as characteristic of modern capitalist legal systems (as against substantive or irrational types).

Benjamin Cardozo (1870 to 1938): The Nature of the Judicial Process (1921). Judges legislate in the gaps (interstitially) and use four methods: logic (philosophy), history (evolution), custom (tradition) and sociology (social welfare). Cardozo's method of sociology means deciding in view of public welfare.

Julius Stone: The Province and Function of Law (1946), who distinguished the functions of law and wrote on the lawyers' extroversion.

Indian application: the sociological approach is at the heart of the Directive Principles of State Policy (Part IV), and the Preamble, which makes law an instrument of social and economic justice. The Supreme Court's Public Interest Litigation (PIL) and the idea of social-action litigation are examples (Hussainara Khatoon v State of Bihar, 1979; S.P. Gupta v Union of India, 1981 (on locus standi)). The Maneka Gandhi and Olga Tellis decisions illustrate purposive reading. Also associated is Justice V.R. Krishna Iyer, who often used the sociological approach to justice.

Basic position: law is what courts and officials actually do, not what is written in rules. The focus is on judicial behaviour, the psychological, social and personal influences on decision, and on law in action. There are two strands.

American Realism:

• Oliver Wendell Holmes Jr. (1841 to 1935): a forerunner; The Common Law (1881) ('The life of the law has not been logic: it has been experience') and 'The Path of the Law' (1897), which proposed the 'bad man' theory: 'If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.' Law is a prediction of the incidence of public force through the courts.

• John Chipman Gray: The Nature and Sources of the Law (1909): law is what the judges declare; statutes are only sources of law, because they become law only when interpreted by judges.

• Karl Llewellyn (1893 to 1962): The Bramble Bush (1930, lectures to law students), The Common Law Tradition: Deciding Appeals (1960); the principal drafter of the Uniform Commercial Code. He stressed 'law in action', the study of what officials do, and distinguished 'paper rules' from 'real rules'. He was a rule-sceptic. He listed the law-jobs (such as conflict resolution, channelling conduct and allocating authority).

• Jerome Frank (1889 to 1957): Law and the Modern Mind (1930), Courts on Trial (1949). A fact-sceptic (the uncertainty of law lies mainly in the uncertainty of facts and in the personality of the judge and the jury), who held that legal certainty is a myth (the 'basic legal myth'). He criticised the idea that law can be fully predictable (what he called the 'quest for certainty' or 'father-substitute').

• Rule scepticism (Llewellyn) versus fact scepticism (Frank) is a common test point.

Scandinavian Realism:

• Axel Hagerstrom (Uppsala): rejected metaphysical concepts like 'duty' and 'right' as meaningless, 'non-natural' facts.

• Karl Olivecrona: Law as Fact (1939): law is a set of 'independent imperatives'; the binding force of law is a psychological illusion.

• Vilhelm Lundstedt: Legal Thinking Revised (1956): social welfare method, rejecting the idea of justice.

• Alf Ross: On Law and Justice (1953): law is the body of rules actually effective in the minds of judges, which they feel socially bound to follow; 'Tu-tu' (an invented word to show that a legal concept like 'ownership' is an empty word used merely for convenience of speech).

Criticisms: exaggerates the unpredictability of law; ignores normative element; judges do follow rules in most cases; cannot explain how to distinguish a rule from a habit; and is a theory about adjudication, not about the whole of law.

• Karl Marx and Friedrich Engels: law belongs to the superstructure that rests on the economic base (the relations of production). In a class society, law is an instrument of class domination, reflecting the interests of the ruling class. Bourgeois law is the will of the bourgeois class 'made into a law for all'.

• Withering away of the state and law: with a classless communist society, there will be no need for law and coercive state.

• Lenin: law is the will of the ruling class; during the transition, the dictatorship of the proletariat needs 'proletarian' law.

• E.B. Pashukanis (General Theory of Law and Marxism, 1924): the commodity-exchange theory, according to which the legal form arises from the relations of commodity exchange; thus legal form will disappear with capitalism. He was executed in the Stalinist purges.

• A.Y. Vyshinsky: the Stalinist view that law is the aggregate of rules of conduct expressing the will of the ruling class, established by legislation, and backed by the coercive force of the State. He rejected the Pashukanis approach.

• Antonio Gramsci: hegemony; law helps to secure the consent of the governed.

• Criticisms: economic determinism; neglect of the autonomy of law; the rule of law as a real constraint; its predictions of the withering away of law were falsified by the experience of Soviet states.

• Relevance in India: Marxist ideas on law and development, class, and labour influence the thinking of writers like Upendra Baxi and the idea of social justice in the Constitution.

• Ronald Coase: The Problem of Social Cost (1960), the Coase theorem: if transaction costs are zero, parties will bargain to an efficient outcome regardless of the initial allocation of legal entitlements; if transaction costs are positive, the law should allocate rights to minimise costs.

• Richard Posner: Economic Analysis of Law (1973): the common law is efficient; the goal of law is wealth maximisation.

• Guido Calabresi: The Costs of Accidents (1970); property rules and liability rules (with Melamed, 1972, 'One View of the Cathedral').

• The approach is criticised for treating efficiency as the only value and for the 'ability to pay' problem (as in Dworkin's critique of wealth maximisation).

• Dharma is the central concept: the cosmic and social order, righteous conduct, duty. It is a wider concept than law. The sources of Dharma according to Manu (Manusmriti) are the Vedas (Sruti), Smriti, the conduct of the virtuous (Sadachara) and one's own conscience (Atmatushti).

• Kautilya's Arthashastra names the four sources (or legs) of law: Dharma (sacred law), Vyavahara (evidence or transactions), Charitra (history or custom) and Rajasasana (edict of the king). In case of conflict, each later one overrides the earlier, with Rajasasana having the final authority.

• Danda (punishment) is essential for the maintenance of order; the king is under the law (Dharma).

• Mimamsa (Jaimini) contributed principles of interpretation, which are still used in Hindu law.

• Commentaries: Mitakshara (Vijnaneshwara; birth-right in the joint family property) and Dayabhaga (Jimutavahana; Bengal school, no birth right).

• Modern Indian thinkers: Mahatma Gandhi (truth, non-violence, Satyagraha and trusteeship), B.R. Ambedkar (constitutional morality, social democracy), Jawaharlal Nehru, Upendra Baxi (The Crisis of the Indian Legal System, human rights, Bhopal).

Author-and-work pairs (highest frequency):

• Austin: Province of Jurisprudence Determined (1832).

• Bentham: Introduction to the Principles of Morals and Legislation (1789).

• Hart: The Concept of Law (1961).

• Kelsen: General Theory of Law and State (1945); Pure Theory of Law.

• Savigny: Of the Vocation of Our Age for Legislation and Jurisprudence (1814).

• Maine: Ancient Law (1861).

• Ihering: Law as a Means to an End and Struggle for Law.

• Ehrlich: Fundamental Principles of the Sociology of Law (1913), 'living law'.

• Pound: social engineering, interests, jural postulates.

• Duguit: social solidarity; law as public service.

• Holmes: 'The Path of the Law' (1897); Llewellyn: The Bramble Bush; Frank: Law and the Modern Mind.

• Ross: On Law and Justice; Olivecrona: Law as Fact.

• Fuller: The Morality of Law; Finnis: Natural Law and Natural Rights; Dworkin: Taking Rights Seriously and Law's Empire; Rawls: A Theory of Justice.

• Stammler: Theory of Just Law ('natural law with variable content').

• Grotius: De Jure Belli ac Pacis; Hobbes: Leviathan; Locke: Two Treatises; Rousseau: The Social Contract; Aquinas: Summa Theologica.

Frequent traps:

• Natural law with a variable content is Stammler, not Kohler (Kohler is the 'jurisprudence of culture').

• Social engineering belongs to Pound, whereas social solidarity belongs to Duguit (and Durkheim).

• Ihering is a sociological jurist (not historical), though he began in the Roman-law tradition.

• Rule-scepticism = Llewellyn; fact-scepticism = Frank.

• Gunman situation is Hart on Austin; obliged versus obligation is also Hart.

• Rule of recognition is Hart; Grundnorm is Kelsen; Law as integrity is Dworkin.

• Status to contract is Maine; mechanical and organic solidarity is Durkheim.

• Hercules belongs to Dworkin.