Module I

1. Module I Philosophical or Ethical school

2. Philosophical or Ethical school • According to this school legal philosophy must be based on ethical values so as to motivate people for an upright living. • According to this school the purpose of law is to maintain social harmony and to maintain law and order in society and legal restrictions can be justified only if they promote the freedom of individuals in the society.

3. Hugo Grotius • Founder of international law • Grotius said that a system of natural law may be derived from the social nature of man. • He defined Natural law as “the dictate of right reason which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity. • In this way, he built up a system of natural law that should command universal respect by its own inherent moral worth.

4. Immanuel Kant • “Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the personal wishes of an other man in accordance with a general law of freedom”. • Kant’s legal philosophy is entirely a theory of what the law ought to be. • Kant distinguished between legal duties and legal rights. He also distinguished between natural rights and acquired rights. • He recognized one natural right of the freedom of man in so far as it can coexist with everyone else’s freedom under a general law.

5. Immanuel Kant • According to Kant, the function of the State is essentially that of protector and guardian of law. • The aim of Kant was a universal world state.

6. Fichte • According to Fichte, the State should protect only those rights of individual which are necessary conditions of his personal existence. • The relation between individual and State is defined in three principles: • Through fulfillment of civic duties, the individual becomes a member of the State. • The law limits and assures the rights of the individual. • Outside this sphere of civic duties, the individual is free and only responsible to himself. He is a man not a citizen. The right to punish is a part of the social contract and is based on retaliation.

7. Hegel • According to him “Both the State and Law are the product of evolution. Legal institutions are within the sphere of legal, ethical and political institutions. They are the expressions of the free human mind which wishes to embody itself in institutions. • Hegel carried further Kant’s doctrine of freedom of will. • According to Hegel, the State is the synthesis of family and civil society.

8. Kohler • According to him “ Law is the standard of conduct which in consequence of the inner impulse that urges man towards a reasonable form of life, emanates from the whole and is forced upon the individual. Roscoe Pound appreciated Kohler’s view and observed “formulation of jural postulates of the time and place is one of the most important achievements of recent legal sciences.”

9. Stammler • He is Neo-Kantian. • He said law is ‘just’ if it furthers social ideal i.e. harmonizes individual interests with those of society. • He advocates an alternative theory of law and opined that apart from positive law which was investigative, there is need for a just law. • He wrote “there is not a single rule of law the positive content of which can be fixed a priori”. • Law is a volition. In other words, it relates to willingness of the persons for whom it is made.