Since in the days of Austin there has been a controversy regarding the nature of law and its source. Generally speaking there are three schools of jurisprudence viewpoints concerning this question.
1. The view held by the followers of Austin that is command and obedience
2. The viewpoint which emphasizes the development of habit and customs
3. The viewpoint which emphasizes the needs and conditions of the society and its individuals.
Schools of Jurisprudence
Following are three schools of jurisprudence
Analytical School of Jurisprudence
The chief exponent of Analytical school of jurisprudence was the English Jurist, John Austin. It is also called positivist school of jurisprudence because it considers law as it is and not as it ought to be. This viewpoint is based on two principles.
- Law is the command of the sovereign (that is law is made only by the sovereign authority of the stale).
- Force is the essence of law i.e. what cannot be enforced is not a law.
This theory was bitterly criticized in 19th century by the Pluralists and the sociological Jurists. Despite its shortcomings this theory has explained many too much about law. The Analytical school of jurisprudence says that laws must be made by the state in the interest of general welfare.
Historical School of Jurisprudence
Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it starts in the social custom, conventions religious principles and economic needs and relations of the people. According to this theory law is the product of the forces and influence of the past.
This theory has some defects. Being conservative in its outlook and rely on past, however its merit is that it shows that law must change with the changes in the society. It clearly says if a law is not according to the will of the people, it will never be obeyed. In this way supplemented the analytical school of law.
Sociological School of Jurisprudence
According to the supporters of sociological school of jurisprudence law has its source and sanction in social needs and necessity. They say men can fulfill all his wishes and desire only in a society which ails unity based on social rules. Every individual has to observe these rules because he understands that only by following these rules he can realize all his needs. The supporters of sociological school are of the view that the state does not create the laws but only formulates, so that social unity is preserved and social needs satisfy. So laws do not came from the state but from the society. According to them the sanction behind law is not the force of the state but the awareness on the part of the individual that his disobedience will meet with the disapproval of the society. In other words the members of the society obey laws because they serve their purposes. Some of the supporters say that law is sovereign and reject the sovereignty of the state.
These are the three theories of law. None of them fully explains the nature of law, yet each of them contains some truth. In some ways if all the three theories are put together, we will have the correct view of law. We all know law is a universal rule. It must be applied to all the people equally. The application must also have a sanction behind it. But we must remember that laws are to serve social needs and necessities.