There are basically five schools of jurisprudence. We will discuss these schools along with their leading jurists.
- Philosophical school or Natural law
- Analytical School
- Historical School
- Sociological School
- Realist School
Philosophical school or Natural law school
The philosophical or ethical school concerns itself chiefly with the relation of law to certain ideals which law is meant to achieve. It seeks to investigate the purpose for which a particular law has been enacted. It is not concerned with its historical or intellectual content.
The notable jurists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804), and Hegel (1770-1831). These jurists regard law neither as the arbitrary command of a ruler nor as to the creation of historical necessity.
To them, the law is the product of human reason and its purpose is to elevate and ennoble human personality.
Renaissance Period of Natural Law
The period of renaissance in the history of the development of natural law may also be called the modern classical era which is marked by rationalism and the emergence of new ideas in different fields of knowledge. General awakening among the masses coupled with new discoveries of science during the fourteenth and fifteenth centuries shattered the foundation of established values.
That apart, the tremendous growth of trade and commerce in European countries created new classes in the society which needed greater protection from the state. The cumulative effect of these developments was that there was a general wave of nationalism and a demand for the absolute sovereignty of the state and supremacy of the positive law overthrowing the dominance of the Church.
New theories supporting the sovereignty of state were propounded by rationalist Polito-legal thinkers such as Machiavelli, Jean Bodin. As a result of these developments, temporal authority of the Church and the theological natural law received a serious blow and finally, it dwindled giving way to natural rights of man and the state.
The natural law theories propounded by Grotius, Locke, and Rousseau revolutionized the existing institutions and held that ‘social contract’ was the basis of the society. Hobbes used natural law theory to perpetuate reactionary movement and justify the status quo for the preservation of peace and protection of individuals from perpetual conflict and chaos.
With the Renaissance and the rise of humanism, the natural law became open to rational inquiry free from religious trappings.
There were many philosophers contributed to the evolution of natural law theory.
- Hugo Grotius: Hugo Grotius (1583–1645) worked as a jurist in the Dutch Republic and laid the foundations for international law, based on natural law. Grotius removed the natural law from the jurisdiction of moral theologians and made it the business of lawyers and philosophers, by asserting that by their very nature, natural laws were authoritative in themselves, with or without faith in God.
He held that the moral ethics of natural law applied to all social and rational beings, Christian and non-Christian alike. Grotius also promoted the concept of “Just War” as a war that was required by natural, national, and divine law under certain circumstances. He developed a series of rules for the “right conduct” of war, based on the principle that actions in war should “serve the right”.
Grotius also wrote De Jure Praedae, one chapter of which, defending free access to the ocean for all nations, was reprinted and widely circulated under the title Mare Liberum.
2. Thomas Hobbes: Thomas Hobbes founded a social contractualist theory of legal positivism. He declared that all men could agree that what they sought (happiness) was subject to contention, but that a broad consensus could form around what they feared (violent death at the hands of another, and loss of liberty and personal property). Natural law was defined as the way in which a rational human being, seeking to survive and prosper, would act.
It could be discovered by considering humankind’s natural rights; previous interpretations had derived natural rights by considering the natural law. In Hobbes’ opinion, the only way that natural law could prevail was by all men submitting to the commands of a sovereign. The ultimate source of law now became the sovereign, who was responsible for creating and enforcing laws to govern the behavior of his subjects.
Since the sovereign’s decisions need not be grounded in morality, the result was legal positivism, the concept that law was created by the state and must therefore be obeyed by the citizens belonging to that state. Jeremy Bentham further developed the theory by modifying the concept of legal positivism.
In Thomas Hobbes’s treatise Leviathan, natural law is a precept, or general rule, discovered through reason, by which a man is forbidden to do anything which is destructive of his life, or takes away the means of preserving his life; and forbidden to omit to do anything which he thinks may preserve his life. Hobbes defines nine Laws of Nature.
3. John Locke: John Locke (1632–1704) is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society.
Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property.
Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments. Locke is thus also important for his defense of the right of revolution. Locke also defends the principle of majority rule and the separation of legislative and executive powers.
In the Letter Concerning Toleration, Locke denied that coercion should be used to bring people to (what the ruler believes is) the true religion and also denied that churches should have any coercive power over their members. Locke elaborated on these themes in his later political writings, such as the Second Letter on Toleration and Third Letter on Toleration.
4. Jean Rousseau: Jean- Jacques Rousseau(1712 – 1778) believed modern man’s enslavement to his own needs was responsible for all sorts of societal ills, from exploitation and domination of others to poor self-esteem and depression. Rousseau believed that a good government must have the freedom of all its citizens as its most fundamental objective.
The Social Contract in particular is Rousseau’s attempt to imagine the form of government that best affirms the individual freedom of all its citizens, with certain constraints inherent to a complex, modern, civil society. Rousseau acknowledged that as long as property and laws exist, people can never be as entirely free in modern society as they are in the state of nature, a point later echoed by Marx and many other Communist and anarchist social philosophers.
Nonetheless, Rousseau strongly believed in the existence of certain principles of government that, if enacted, can afford the members of society a level of freedom that at least approximates the freedom enjoyed in the state of nature. In The Social Contract and his other works of political philosophy, Rousseau is devoted to outlining these principles and how they may be given expression in a functional modern state.
5. Immanuel Kant: Immanuel Kant (1724-1804) is one of the most influential philosophers in the history of Western philosophy. His contributions to metaphysics, epistemology, ethics, and aesthetics have had a profound impact on almost every philosophical movement that followed him. This article focuses on his metaphysics and epistemology in one of his most important works, The Critique of Pure Reason.
A large part of Kant’s work addresses the question “What can we know?” The answer, if it can be stated simply, is that our knowledge is constrained to mathematics and the science of the natural, empirical world. It is impossible, Kant argues, to extend knowledge to the supersensible realm of speculative metaphysics.
The reason that knowledge has these constraints, Kant argues, is that the mind plays an active role in constituting the features of experience and limiting the mind’s access only to the empirical realm of space and time.
Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is the study of theories and philosophies regarding the law. It has a practical and educational value. There are five schools of jurisprudence. In the natural law school, there are four periods of evolution of theory.
In this, the period of renaissance played a vital role in the development of natural law theory. It is marked by rationalism and emergence of new ideas in different fields of knowledge. In the period of the Renaissance there were many philosophers propounded their theories but mainly Hugo Grotius, Thomas Hobbes, John Locke, Jean Rousseau and Immanuel Kant were propounded natural law theory in the best way.
So in the renaissance period, the rise of humanism the natural law became open to rational inquiry free from religious trappings.