Summary: There are different types of legal theories evolved amongst all societies. Though there are numerous theories, we have talked about only a few main of them here, such as the positivist theory of law, the pure theory of law, natural law theory, historical theory of law, and sociological theory of law. After going through this article, you will have a complete idea about all these theories of law, and you will also be able to distinguish which one is the best among the mentioned ones.

The Theories of Law Explained in Detail:

Positivist Theory of Law: 

John Austin is the person who came up with this theory of law known as the positivist theory of law or as the positivist school. He wrote a book of his own named “The Province of Jurisprudence Determined”, and in this, he explained the law as the set of commands given by the superiors to the inferiors and imposed by sanctions.

The fact which can be taken out from this definition is that law can be known as only those things which are legalized with the people who are sanctioned to do so. It consists of the elements like:

• Existence of a particular and definite ruler.
• When the monarch exercises its powers, it can be without any legal limitations.
• The people or the subjects must make a habit of obeying the sovereign as it has persistent power of imposing sanctions.

This theory has been criticized on several grounds. The first of it is saying that the laws are framed as a set of commands. One of the other criticism is saying that the positive law bothers only the fact that the sovereigns pass the laws. It is not concerned about the fact that whether or not the assigned law is acceptable or moral for society. In addition, the thought of an uncommanded commander is that it has no legal restrictions, which are not significant in today’s world.

In conclusion, it can be said that all human beings do not obey the laws just because the punishments and sanctions are attached to them. Some of the people just have a habit of violating the laws. For example, some people restrict themselves from committing murder not just because of the punishment underlying with it but also because they think that killing a person is repulsive.

Pure Theory of Law:

Hans Kelson led the foundation of this theory which was of the view that law is just a system of norms that are acceptable by the people of society to be irrevocable. The validity of these norms is traced with the higher norms until it gets to the ground norm. The ground norm is known as the norm, which is responsible for the validity of other norms.

The pure theory of law is criticized because it propounds that law is justifiable if it completes and satisfies all the demands and requirements by being backed by a higher norm. It does not review itself with the immorality or morality of law.

One of the other criticisms of this theory is because of the truth that tracing the ground norm is not always easy in a society. They claim that the constitution is, known as the ground norm, is something that is based on an illogical and false fact. This is because of the reason and the fact that the people are the power of a constitution.

Further, a ground norm is only successful till the time it has been respected by the people it seeks to govern. If the people lose their confidence in it because of some instrumentality of a revolution, it will be effective then.

Natural Law Theory:

The people like Thomas Aquinas, Grotius, and Zeno welcomed this theory. In their viewpoint, the people can conclude the law for the facts such as what is wrong or right. The natural law theory believes that human beings have an inborn tendency of distinguishing between the wrong and the right. It is simply a law that tells what is fair, right, or wrong.

This law has been the basis of many freedom struggles. It was invoked during the French revolution by the French, by the Americans during their freedom struggle from Britain, in the elimination of slave trade, and is now being used for justifying homosexuality.

Although, there are also a number of criticism for this law theory. The first of it is that it cannot carry the force of law until and unless a natural law is announced as law and won’t be enforceable. It can just be considered as just a moral rule till then.

Apart from this, the dominates of natural law are also often seen very subjectively. A thing can be equitable, fine, and fair for a person and just the opposite of that for someone else. This is the problem that has made the natural law to be known as a harlot.

Thus, it can make a great problem in society if everyone is left to choose and decide about a thing being right or wrong on the basis of their feelings.

Historical Theory of Law:

The historical theory of law was suggested by the German aristocrat named Friedrich Carl Von Savigny. This theory was proposed for countering the impact of the natural theory of law by bringing out the monarchs of 17th and 18th century Europe.

This theory of law believes that the law must be made according to the beliefs and customs of the people. And it comes to be known as volkgeist, meaning the thing or the spirit of the people which binds them together. Hence, it must not be tried to make such laws that can deviate from the type of like of the people or from their customs.

One of the criticisms of this law is that it is followed blindly and dogmatically and hence can hinder radical reforms which will not be good for society. As can be seen, how backward and bad would be a society if it would have not abolished monarchy and slavery. In fact, this can be seen in the countries following monarchy.

One of the other criticisms of this theory is the reality that customs can’t always be fair and just. There are many customs that separate and differentiate a particular group or class of people. If this theory had been followed for a longer time period, then it would put the people in never-ending oppression.

This is the reason for the existence of the evidence act, which says that a custom will apply only if it matches with equity, public policy, a good conscience, and natural justice.

Sociological Theory of Law:

This theory gained importance from the mid-20th and 19th centuries. One of the notable supporters of it was Eugene Ehrlich. According to this theory, the basis of law is dependent on what is called the facts of law or how the people act. The behavior and the acts of society determine the formation of the types of laws.

If the society fails in accepting a law, the law will also fail automatically as a means of social power or control.

However, this theory of law also has its criticisms. First is that it is not always necessary or be the case that the conduct will influence the law. There have been such situations, too, where the law affects the people’s behavior in a society. For example, vehicle owners get a driving license because the law mandates them for doing so.

Another point of criticism is that it is very dangerous to go with the flow. Just because many people are not following the law, it will not defend an offender who will be caught doing the same.

The content given above will assist you in your assignment help and broaden your knowledge area. Although, if you want to learn about more types of law theories, you can take cheap assignment help in Australia to score HD marks and grades.