Jurisprudence Notes for LLB 1st Year Students

Jurisprudence is the theory of law — it asks what law is, where it comes from, and how it relates to morality and society. These notes cover the core schools of jurisprudential thought examined in Indian LL.B. courses.

Natural Law School

Natural law theorists (Aristotle, Aquinas, Grotius) argue that law derives its validity from universal moral principles, not merely from the command of a sovereign. An unjust law, on this view, is not truly “law” at all (“lex injusta non est lex”). In Indian constitutional jurisprudence, natural law reasoning surfaces in the Supreme Court’s treatment of Article 21 as embodying substantive due process after Maneka Gandhi v. Union of India (1978).

Analytical Positivism (Austin, Hart, Kelsen)

John Austin’s command theory defines law as the command of a sovereign backed by sanction. H.L.A. Hart refined this with the “rule of recognition” — a master rule by which a legal system identifies valid laws — distinguishing primary rules (duties) from secondary rules (rules about rules). Hans Kelsen’s Pure Theory of Law proposes a “grundnorm” (basic norm) as the hypothetical foundation validating the entire legal hierarchy below it.

Historical and Sociological Schools

Savigny’s historical school holds that law emerges from the customs and spirit (“Volksgeist”) of a people rather than from legislative fiat. The sociological school (Roscoe Pound’s “social engineering”) treats law as a tool for balancing competing interests in society — individual, public and social interests.

Legal Realism

American realists (Holmes, Llewellyn) focused on what courts actually do rather than what rules say — “law is what the judges say it is.” This is useful for understanding judicial discretion and precedent-setting in Indian case law.

Sources of Law in India

Legislation, precedent (stare decisis under Article 141), and custom remain the three primary sources recognised in Indian jurisprudence, with the Constitution as the grundnorm of the Indian legal system.

Key exam questions to prepare

• Distinguish Austin’s command theory from Hart’s rule of recognition.
• Critically examine Kelsen’s Pure Theory of Law.
• Natural law vs legal positivism — which better explains Indian constitutional interpretation?

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