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  • Writer's pictureIRALR


Source: Lawnomy

This article has been authored by Ramya Singh, a second year student at RMLNLU, Lucknow.


Imagine a scenario where, three men and a boy after surviving a shipwreck are now on a simple lifeline boat in a hope to be rescued, with limited food to nourish themselves and limited water to soothe their thirsts. As the days pass by, food, water and their hopes all start to decrease and a day comes when their lives end. The men get some life from the memories of their families. But the poor boy who also happens to be an orphan, with no hope of survival is naturally forced into drinking some sea water and in consequence becomes sick, sick to this death.

One of the men proposed that this boy being sick is already suffering, he has no one back home, by eating him we could end his suffering because nonetheless he would die and we feed on his body for our survival for some days. This would not only save us but our families who count on us for their lives. Listening to this logical deduction the other two agreed. They thought of asking the boy but he was in no condition to speak. They killed him, fed on his body and later were rescued. If this as a case happens to come in front of a judge to decide, would he decide in favour of the men who by killing an almost dead orphan saved themselves and their families or in favour of the innocent boy who by no fault of his own could not see what the future had for him? Deciding in favour of the men seems logically correct but morally it seems to be extremely unfair and wrong, it seems to be against humanity.

This situation was a real case which took place in England back in the year 1884 by the name of ‘The Queen v. Dudley and Stephens’. The question of logic, morality, humanity all were brought forth the jury. Certainly, humanity won and the men were charged with murder of the boy. But why did the judge rule so? The logic behind killing the boy had no discrepancies in it. Then why was it not accepted and was considered to be inhumane and against public morality? Looking at the decision, it can be seen that not only logic but morality is also taken into consideration while holding the men guilty of the murder of the orphan.

Law as a body is imperative for a society to maintain harmony, without law no society can exist. There is a plethora of laws on almost every social aspect of a human being. The one which deals with such questions of morality happens to be named as Jurisprudence. Laws have been said to have divine, customary and statutory existence. After an evolutionary change today what is read as law is a refined version of what it used to be. In the ancient times, religion and law were all the same but as societies developed, the need was to recognize them separately.

As laws now happen to apply to all the members of a society, there needs to be some unification. Whereas religion happens to be only limited as a personal affair. Likewise, law and morality were considered to be of the same origin. Later, successful efforts were made into separately defining them. Austin advocated this separation and said in his theory of classical positivism, “Law is the command of the sovereign, backed up by sanctions and Law is different from morality, religion, etc.” But later it was accepted that law and morality somewhat happen to exist collectively. Morality for one becomes a right and to protect it becomes the duty of the other, this is what the law is. Hence the social science of jurisprudence was developed to bring about a recourse to such situations. Though, law and morality sound fundamental, it has been a long-debated subject. It has numerous nuances and hence the development of jurisprudence has not been a smooth affair.

Development of Jurisprudence

There have been two types of jurisprudence defined on the basis of their time of occurrence, Historic and Modern. The Historical School of Jurisprudence in its time immensely contributed to our understanding by suggesting that law is an outcome of the social system and not merely a set of artificial rules imposed on society, as it has evolved in history. Historical jurisprudence presented a determined reaction to the rationalizing of the eighteenth century but it is entirely unsuited to the scientific era. Slow growth of customs is undesired by the people in the age of rapid technical growth. Thus, modern jurisprudence comes into the picture and is concerned with law making in the form of legislation, as it enables rapid change in the law, and this rapid change is necessary in modern industrial society which is fast changing in view of new scientific discoveries and inventions.

Just like any subject of social science, Jurisprudence has developed through certain theories. The popular theories of Jurisprudence are Positivist Theory, Natural law Theory and the Theory of Social Jurisprudence.

Positivist theory, was the very first attempt to create a scientific theory for modern jurisprudence by English jurists Bentham and Austin. It aimed at studying law in the way it is and not how we would want it to be, just like the objectivity of science proposes. It said Normativism is an essential feature of a legal order. In its literal sense, it is a ‘belief in or advocacy of norms, especially with reference to the primacy or desirability of social norms’. A law is a norm or rule of conduct meant for repeated application, and not exhausted by its fulfilment at once. A law reflects a certain social or economic relationship, and this relationship is created by the productive forces prevalent in a given society. Since over a course of time, the cycles of economic production kept repeating themselves, certain enduring social relationships came into existence which were reflected, formalized and protected by the law. Law, thus, consists of a set of rules reflecting these relationships.

Natural Law Theory, asserted that along with the positive, man-made law there exists a higher law, law which emanated from God or morality and other like sources. According to this, the higher law shall prevail over man-made law in case of conflict between the two. St. Thomas Aquinas in his ‘Summa Theologica’ states, “A human law, in so far as it deviates from reason, is called an unjust law, and has the nature, not of law but of violence”. In the words of Blackstone, the great British jurist of the 18th century, “Those laws must be obeyed which are accordant with nature; the others are null in fact, and instead of obeying them they ought to be resisted. Human laws must not be permitted to contradict natural law; if a human law commands a thing forbidden by the natural or divine law, we are bound to transgress that human law”. In the modern times during the American and French revolutions, this theory was vehemently advanced. It made liberty, equality and fraternity to be inherent and natural to man.

Theory of Social jurisprudence, was a contrast to positivist theory. It said statutes did not cover all the aspects and the lacuna which they created could be filled by giving free discretion to judges for its interpretations. This theory shifted the centre of gravity of the legal system from statute to judge made law.

It is universally accepted that the practical world differs from the theoretical. Every idea or theory works perfectly fine on paper but on application its discrepancies surface. Likewise, these theories also suffer through a number of flaws.

Considering liberty, morality and fraternity innate to man, when given the power of law seems extremely promising. But the problem which it contains is that these terms are highly subjective. The definition of morality for everyone is different. In ancient times and to some extent even now homosexuality is considered to be highly immoral. However, the society which exists now is inclusive of all the genders and has a broad perspective per se. For a Greek or a Roman (who were supporters of the natural law) slavery was natural and therefore, equality or liberty was unnatural. Thus, what is regarded natural differs from era to era. Hence, natural law seems to be vague. As Kelsen said, “with natural law one can prove anything and nothing.” Bentham regarded natural law as metaphysical nonsense. On the grounds of being too hazy and confusing, the theory of natural law lost its applicability in a modern society which required clear-cut rules and ideas.

Positivism ideally suited the industrial area, it laid great emphasis on statutory law, i.e. the law made by the legislature or its delegates. It cleared confusion and uncertainties in the feudal laws in most countries of Europe upto the 18th century by the means of its simplistic, systematic, clear, uniform and precise nature, despite this it had a great defect. It rigorously excluded a study of the social, economic and historical background of the law and only studied the form, structure, concepts etc. in a legal system. Positivism reduced the jurisprudence to a very narrow and dry subject which was cut-off from the historical and social realities (such factors gave rise to law), to a merely descriptive science of a low theoretical order and thus deprived jurisprudence of its flesh and blood. With the sole focus on the transient nature of the industry and economy and ‘in flux social relationships’ in modern scientific society. It ignored that society is not always in a state of unrest and instability, and there are periods of rest and consolidation, and periods of social advancement. The basic mistake of the realists is lack of a true understanding of the nature of law that it is ought to reflect both states of peace and conundrum.

Sociological jurisprudence did overcome an important defect in classical positivism through the shift from the statutory form of legal system to a system of judge made laws. However, it introduced one of its own. It arms a judge with tremendous powers to play an active role and even make law but unfortunately is unable to satisfy the intellectual needs of modern society. It is agreed that vesting judges with wide discretionary legislative powers solve few problems but such is a superficial solution to the modern world problems as there are all kinds of judges, scientific and unscientific, intelligent and dull, active and passive.


It is now well accepted that customary laws evolve very slowly over the modern industrial advancements without radical and abrupt departure from the past. Hence, to keep pace with technically advanced modern society the legislation provide the solution to the problem posed by the non-codification of the customs. Evolution in industrial society brings about changes in social relations and it calls for new norms making legislation become the most important source of law in modern society. But at times even the statutory law lacks to keep pace with the social development, and often gaps are left, which are then filled by judge made laws.

In a summary, it can be said that modern industrial jurisprudence while mainly positivist, in that it relies mainly on legislation, also uses the ideas of sociological jurisprudence by supplementing the legislation whenever there is a legal vacuum or when compelling social need arises. The Constitution of our country guarantees to protect ideals of liberty, equality, morality, justice and fraternity of every citizen, and they happen to originate from the theory of natural law. Also, when there is no statutory rule it uses some concepts from natural law, e.g. the rules of natural justice. Thus, concludingly it can be stated that, while ancient Indian jurisprudence can be said to belong to the historical school of jurisprudence, modern jurisprudence is a combination of positivism, sociological jurisprudence and natural law witnessing elements from each of them.

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