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1st July

01 July 2013
11:21

Read this in a whisper. Read this like a secret youve been hiding from yourself.
Read this because you, like the hidden soul beside you, love to be loved, hate
because you are hated, care because you cant help but try to mean more.
Dream
Because it is within dreams that we fear, that we wonder about the past, that we
find the thoughts of our souls and the stutter of our hearts as we look into an
uncertain future.
Shakespeare was wrong... All the worlds a dream. Not a stage. Never an act.
When do you draw the line then, dear reader? Answer me with a whisper from
your soul. Between reality and dreams? Dreams and reality? Realistic
dreams? A dreamlike reality?
Process of human knowledge (oookaaaaay? o.O)
Learning, unlearning, relearning.
Form and content of knowledge.
Ability to argue against what you read.
Focus on: analytical or positivism, classical, naturalism, realism.
Must abide by law, no matter how ludicrous it is.
Truth cannot be challenged.
Facts can be challenged. It is the state of a thing which is not disputed. When disputed, it ceases being
a fact.
State: what constitutes the state, how the state functions. The content or 'meta' part.
Meta implies the philosophy of going beyond what naked eyes see.
Concept of Semantics. (The study of language)
The meaning of law in Social Science and in Applied Science

Jurisprudence is the philosophy of law.


5 authors to be followed:
Austen
Kearson
Rorke
Hart,
Kant
Acques

Jurisprudence Page 1

2nd July
02 July 2013
11:43

Nature of law
When law is analyzed philosophically, it ceases to be just rules and becomes
a system.
The word law is used for both normative as well as descriptive purposes. The
laws of physics are descriptive in nature. The laws of social sciences are
normative in nature.
(continuing about social science law) Because they deal with human
behavior.
Philosophy as a branch is divided into: logic, ethic and physics
So philosophy of law involves the study of logic and ethics.
The term 'war on terror' is an incorrect term. War is between two states.
There was a reason for the use of the above term. The use of the term 'war'
grants advantages to the parties involved. (e.g. in India the use of article 352
would empower the government to curtail certain civil liberties of the
citizens)
What should be the standard behavior for humans in a system?
Normative order: when you are bound to do something. This requires an
institution to enforce the normative order as well as an institution to
adjudicate whether the order has been violated.
If the adherence to a normative order is left to choice, then it becomes a
question of morality.
Laws reflect the society that you want to create.
Normative now means binding obligations.
Can laws be immoral? Are laws inviolate? Or can they be categorized as
good or bad? If the latter is true, then what determines the goodness or
badness?

Jurisprudence Page 2

4th July
ODG I give up. Why is he discussing physics? GAAH!
Great. Space theory. Cosmos cosmos woo!

04 July 2013
10:32

Nature of Law
Philosophy of law reading:
Two approaches: Plato and Raz. (approaches to understanding the nature of law)

Plato's theory: for things to exist there is a requirement of abstract. Things do not exist only
in space and time or in mind. It can exist beyond this. This makes is abstract. (like the
number three? Eeeeeeh? o.O so it exists in abstract. So values exist in the abstract possibly
as actual physical entities as opposed to mere concepts in reality)
(Basically, the number or value three is a concept in reality, but in abstract it may have
independent existence without having to rely on objects to lend it meaning) .
Must understand the nature and content of law.
People who disagree say that the nature of law can only be what can be visualized or
actually seen. So it is a system or an organized system. Law is the product of a legal system
as opposed to law existing as an abstract concept independently which results in a legal
system developed to implement it. (Oooh, I get it...but it sounds like the chicken and egg
argument >.>)
Nature of law cannot be simplified because it cannot be universally applicable.

Empirists who believe in empirical studies.


Second reading
Laws of applied sciences are descriptive. It means that you cannot instruct it to behave in a
way contrary to the physical law (now there's an idea xD). They only explain phenomena or
principles
Normative laws basically are aimed at achieving a desired behavior or desired effect. Asks
the subject to behave in a certain manner.
Human laws are normative. Control of the conduct of humans. Because human conduct is
unpredictable. You cannot establish a proper relationship between cause and effect. ( Is that
all? Why complicate things so much? >.>)
So morality and ethics do not have one fixed answer.
READ: Province of Jurisprudence Determined: first 10 pages.

Jurisprudence Page 3

Stanford website for Platonistic theory.

5th July
05 July 2013
11:42

Austinian Analysis of law


Four categories: natural law or divine law, positive law, positive morality, metaphorical or
analogical.
Was from a military background so had the impression that law was authoritative.
This school is called the analytical or imperative school. It is also known as positivism.
Positive is derived from positus, a Latin term which means position.
This school is called analytical because he has made an analysis. Enquired into the
meaning of law.
The broad definition of law is that it is nothing but a command. In day to day existence, the
word law is used sometimes properly, and sometimes improperly.
(oh no, here we go again >.>)
Improper usage is used for metaphorical law.
Laws properly called laws (whatte statement! ^^)
->laws made by God for men
-> laws made by men for men-1
Improperly called so called
-> morality-2
-> metaphorical or analogical

There are laws made by opinion in society and not because of the political superiors
making laws for the inferiors. This is customary law. So the term laws is incorrect because
they have not been made by a political superior like a sovereign.
Overlap between 1 and 2 is solved by calling 1 law strictly so called. The province of
jurisprudence is law strictly so called.
Law means the existence of political unity.

Law must be the result of a command. So customs, which are the result of opinions, cannot
be termed as law. So international law is also not law, as there is no international sovereign
which lays down the law.
Analysis:
1) Command
2) Sovereign
3) Concept of duty
4) Sanction
What is command?
READ the chapter in which he has explained the phenomenon of command
This school is also called imperative school because it treats law as a command.
Can there be a command issued by the sovereign which is not a law?
Article 368 uses the word Bill for the amendment of the constitution. How do states ratify
this? Do they also have to pass a bill? The word used for states is resolution. They do not
have to pass a bill.
Is the word 'law' used in 13(2) broad enough to include law as under 368 as well 246 and
248 (residuary power of the legislature).
No, there is a distinction.
Austin also says that a law which repeals a previous law is not a command, but it will still
be a law.
The obligation must carry evil consequences which will take place if the obligation is not
carried out. This makes it a duty. Thus there is a difference between obligation and duty.

READ about Commands.

Jurisprudence Page 4

Wow...I'm so lost right now >.>

6th July
18 July 2013
10:28

Happy Birthday You.

Jurisprudence Page 5

8th July
08 July 2013
11:41

Every question is interconnected. Understand the analysis.


Law is nothing but a command. But there are exceptions to this. (see later)
So examine all laws with the principle of command. So if they are not
commands, they are not laws. So the first distinction is between law and
morality. Law is the significance of desire, the end product of which is
obligation. Morality is the significance of opinion.
Significance of desire is dependent on what? Style or position. He says that
imperativeness deals with position and not style. Which means the
command must be made by someone having the authority and position to
issue such command. Thus he uses the word 'positive law' (latin word for
position and all :P) this authority is established by the relationship of
superior and inferior. Even if the tone of imperativeness is missing, the fact
that the person making the command is superior turns it into a command.
This means that the superior has the ability to cause or inflict evil on the
inferior. So, even though the statement is made politely, it will still
constitute a command. The existence of evil or the power to punish the non
compliance of the desire stated is important. Superior-inferior creates a
vertical relationship. The evil spoken about is sanction. If there is no harm,
rather, if there is a reward, then can it be called a law? No, because reward
puts an obligation on the superior. The obligation and duty should be
correlated.
Thus, the positive school of law determines that if the law has been stated,
then it exists. What it ought to be is not the question.
So even if the law is unjust, it cannot be opposed. Is there is a moral
obligation to oppose an immoral law?
So it is divided into two questions:
1) What law ought to be?
2) What law is?
So if a law is not what it ought to be, do we have the responsibility to
oppose it?
Is every statement made by a superior a command? Or can they be
distinguished?
Command can be divided into :
1) General-this constitutes law
2) Particular-this does not constitute law
Occasional command to a particular person is not law. This is because a
law is usually standing in nature. Once made, it is in force unless it is
repealed.
Even if the command is to a specific group in the society, it remains a
general command. The importance is that the command should be
continuous in nature.
Exceptions
1) Declaratory law-explains the position of law
2) Amending laws or amendments-repeals previous law
3) Imperfect laws-they are laws, have obligations but no sanctions. (E.g.
Fundamental Duties, Right to Education (parents are obligated to send
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Fundamental Duties, Right to Education (parents are obligated to send


their children to school, but there is no sanction if they fail to do so) )
READ: Lecture I.

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9th July
09 July 2013
11:49

Presentations
Analytical school of thought.
He wanted to determine exactly what jurisprudence is.
Two categories: law properly so called, law improperly so called
Law proper: divine law and law made by man for man
The relationship between the man who makes the law and the others is that
of suprerior and inferior (political.)_
Improper law: morality or opinion and analogy.
Morality and law sometimes overlap. Important to distinguish this overlap.
So another category: law strictly so called and customary law.
Law is a command. It is determined by the position of the person making
the command. Concept of duty and obligation. The evil is also known as
sanction. Command from one rational being to another, there should be an
evil consequence if it is not followed, it must be expressed. Certain laws are
not commands.
Imperfect laws: law without sanction. Commands without sanction.
Command is the significance of the desire of the sovereign. It arises from
position rather than style.
Command can be general or particular, and results in an obligation.
Position by itself is enough to constitute command.
Style requires the support of position to constitute command.
Law means that there must exist a political unity. An intelligent
communication of law. Thus cannot have laws among animals.
Sanction is used to enforce obedience. Rewards cannot be used for
enforcement.
Position is recognized by the habitual obedience of the populace.
Class begins!
READ lecture VI: p.g. 50.
How do you determine whether a society is politically organized?
The habitual obedience must be seen in a political relationship (rather than
that seen in social relations as seen between parents and child)
The test to determine political organization is that the bulk of the populace
would be in habitual obedience to the sovereign. Austen defines law as a
legal system. Nature of laws may vary but the legal system remains the
same.
Superior means a person who is a sovereign. A sovereign is present in a
politically constituted society. This is denoted by the majority of the
populace giving habitual obedience to a person or a group of people. This
person or group must not be in habitual obedience to anyone else. Yes, in
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person or group must not be in habitual obedience to anyone else. Yes, in


certain circumstances, they may yield to inferiors, but these circumstances
are rare and are an aberration.
Austen added that mere political society is not enough. It should be an
independent society. The sovereign must not give habitual obedience to any
other.

Jurisprudence Page 9

11th July
11 July 2013
10:40

Happy Birthday Sandra!

Lecture VI
Analyzed the meaning of political society.
Difference between polity and society.
Polity: bulk of the society gives habitual obedience to a determinant.
(Understand the coherence of the argument. Analyze the argument)

He uses the term 'rational being' to exclude animals from this definition.
How did organized society come into force? Hobbs said that Legislature is
not the one who creates the law. It is the one because of which the law
continues to be in force.
Analyzes law made by superior to inferior. Superior means sovereign.
Sovereign is present in a political society.
The constitution of India constitutes a political society. The outcome of a
political society makes it organized. This relationship which results in
organization makes it political. The outcome of a political relationship is a
legal relationship.
So the constitution of a country is not a social document. It establishes a
political relationship.

This is off into the territory of rambling.

Plato said that the maximum population for a city state should be 5060 for
efficient governance.
Political society can only be formed when it is an organized society.
Wow. Spectacular analogies -_The purpose behind the constitution of India was not to create a political
outfit. It was to delete anomalies in the old society of India.
The constitution of India was a tool to achieve a goal. But this goal was
social, not political.
Why is international law not considered law according to Austen?
Because during his period, international law could not be termed as a
command.

Present day systems turn international organizations into federations of


sorts. So there is no international law. International law can exist only
when all the countries are sovereign.
READ: HLA HART "Concept of Law"-Read Chapter 1 and 2.

Jurisprudence Page 10

12th July
12 July 2013
11:47

Concept of Law (according to Hart)


Chapter 1
Persistent Questions:
Law is related to human behavior. This can be manifested by conduct. It is not possible to
live in society without confrontation. Why do you need to regulate human conduct?
Threefold questions:
1) Law is legal fiction. Believed to be true, but no idea about why it is to be true.
2) When the judge decides a case, does he apply the law or does he pretend to apply the
law? Is he deciding or is he legislating?
Human conduct is based on morality and legality. Certain conducts are mandatory while
others are optional.
Law simply means the effect on human conduct.
Laws together form a system. So you need to define the system.
Various kinds of obligations are possible, out of which it is difficult to separate moral
obligations from legal obligations. Morals also create obligations. Moral obligations are
different from legal obligations. (why am I even writing this down? Lessons on rambling :/
sigh)
Internal aspect of a rule and external aspect of a rule.
Answer in Chapter 2. ( ugh, I feel so lost right now >.>)
Then primary rule and secondary rule (possible question for exam!)

Jurisprudence Page 11

60 or 90 degree bend? Hahaha, I think of


Yunho and Changmin xDD

15th July
15 July 2013
11:45

Chapter 2 of Hart's reading


Starts by analyzing imperativeness. He criticizes Austen. Starts with
criticism of the notion of law as a command. He says that Austen's analysis
fits penal laws, but not others.
Austen says that command is established by position. So how do you
distinguish between a sovereign and subject and a gunman and a bank
clerk?
Gunman is ordering.
General/sovereign is giving an order. This shows that the statement has the
basis of law and has authority.
Also said that this system presupposes the existence of an ordered
hierarchy.
Also looked at the nature of command. The word implies that the party who
is being commanded is in the presence of the one making the command.
But this is not true in the case of law. Two questions: to whom is it
applicable as well as to whom is it published.
So as the people being commanded are not present in the parliament, can
you refer to it as command as understood?
So are statements made by tax collectors commands?
Criticizes Austen's: 1) Position theory 2) How is the authority obtained?
Hierarchy ensures authority.
Austen kept his society extremely primitive. His analysis of law only fits with
a tribal society, with a single head and laws based on threat and command.
Empty threat example refers to the above explanation. People are expected
to know the law applicable to them. Commands (laws), when made, are not
uniform. Another problem is that the laws are standing in nature. They do
not have to be repeated, unlike a command (a coercive command) which is
not followed when the threat is withdrawn. Commands are thus not
standing in nature.
Also, the modern state is based on interdependence.
Queen > Parliament. But Parliament > Judiciary.
The Queen is the superior according to Austen's method.
Hart argues for a horizontal relationship. Because modern systems are a
plurality of legal systems. Each component is important in its respective
field.
He argues that Austen's analysis seeks an absolute sovereign, which is not
possible in a modern society.
Chapter 3-Variety of Law
After analyzing the nature of command. Application of command test to
laws.
All laws are not accompanied by sanctions.
Discussion of the concept of nullity as a sanction.
Is only punishment a sanction? If nullity is held to be sanction, then the
Austenian analysis holds true. Examination of whether various laws fit
within the concept of sanction.
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Said that Austen considers only primary rules. But there are secondary
rules too. Certain laws have an indirect effect. (E.g. Keshavananda Bharti
Case restricts the parliament, but the eventual effects trickle down to the
citizens who are protected by basic structure)
Modern society requires the existence of primary and secondary rules.

Jurisprudence Page 13

16th July
16 July 2013
11:52

Subjectivity is on the basis of objectivity ^^


Variety of Laws-Chapter 3
If the basis of law is the existence of a sanction, then the absence of sanction should
imply that there is no law.
Two main forms: duty and power conferring.
Duty: crime and tort.
But laws are not completely concerned with conduct.
For officials: the power is reversed or squashed. Until it is done, the exercise of power
stands (Think in terms of a subordinate court and a superior court) There is no sanction
for the wrong exercise of official power.

Power conferring: to an individual and to officials


For individuals: the consequence is not the same as the one above.
Content of sanctions
Since sanction is a threat or evil, there are two hypotheses:
1) If clause argument. There is no punishment. It merely describes the act. There will
be no penalty because of the absence of sanction.
Law for individual: the sanction
For a sanction, there should be a breach. So in the absence of sanction, there is no
breach.

Kelson says that even in Criminal law, the sanction is not sanction. Criminal law is of
two parts: defining the act, and then granting the power to the judiciary.
IMP: On this view what is ordinarily thought of(possibly page 36)

Punishment is the element of coercion. If an individual invites the sanction to himself, if


it is not an evil, then is it punishment.

Jurisprudence Page 14

18th July
18 July 2013
10:32

Happy Birthday Taemin! Noona is so proud of you, little dongsaeng! ^_^

Wow. -_- Told us to read the wrong thing.


Chapter 4
Concept of sovereign. Uses the monarchy. When he is obeyed he is the
sovereign. But there is uncertainty about whether his successor will be obeyed.
So doubt about whether he will be obeyed. But in a democracy, people are in
habitual obedience to the parliament, thus the succeeding legislature is also a
sovereign.
Criticism of Sovereign. Sovereign is sovereign because of Habit. The element of
habit becomes crucial for deciding whether a society is a political society or
not.
Austen's Habit:
1) Continuity
2) Persistence
Distinction between habit and rule. Habit is a factual notion, called external
aspect. Rule also has external aspect, but also has internal aspect.

Lays down a very simplistic human society model. One sovereign, Rex 1. After a
few years, people are in the habit of habitual obedience to him. If he dies, the
son Rex 2 claims to become the new king. Would he have habitual obedience?
Are the laws effected by Rex 1 still effective?
Habit is a factual situation.
Habit does not create succession. Succession is the product of rule.
Normatavity is not created by habit, but by rule.
Rule and Habit are similar in the sense of both being external, both need the
occurrence of practice.
Rule, however, also has an internal aspect. So the breaking of a rule is met
with opposition, often self opposition. Because the individual is aware that the
rule ought not to be broken. This is the internal aspect. Pressurization of
society.
Succession: legitimate expectation that the son succeeds to the throne. This is
possible only in the case of a rule.
In 1944 England, a woman was hanged for fortune telling. In response to an
act known as the 'Witchcraft Act' 1765. (wow. -_- /slowclap)
So previous laws are not obeyed subsequently always.
READ: Chapter 4.

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1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)

Why So Serious?
A-Yo
Sherlock
Dream Girl
Ring Ding Dong
Stranger
1000 years always by your side
Stand By Me
Fire
Lucifer
Hello
Replay

19th July
19 July 2013
11:46

Look at notes from the reading of Chapter IV. The notes in the Ulf book! (haha
EXO reference xD)

The notion of habit. Would a legal system constituted because of habit be a


lasting legal system?

What happens when a part of the population gives habitual obedience to


another? (E.g. maoists giving allegience to China ) Does this constitute a
separate legal system?
What happens when the law was passed in 1755, applied in 1944. neither the
original sovereign nor the original population paying habitual obedience
survives.
The succession of previous sovereign by the subsequent one is a rule.
Legal realism (all covered in notes. Chilllll ^^)
(LOL, this is definitely talking for the sake of talking xD)
Notion of a simplistic society cannot be sustained when you consider laws
which are ancient but still applicable.
Legal Realism states that laws are eventually made by the court.
Tacit approval of ancient laws by the sovereign when he does not overrule
them. (uh...yes, but wasn't this said in a different context? Oh wait, no its right)
Difference between legitimacy and legality.
Lawfulness presumes the existence of law.
Legality presumes the existence of a legal system.
READ: CHAPTER V
What is the definition of primary rule?
How is a primitive society is distinguished from a modern society? Hart's
solution.

Jurisprudence Page 16

23rd July
26 July 2013
17:47

It creates a legal system-Primary and Secondary rule. So legal theory is


derived from rules and not obligations. So a legal system is an interplay of
primary rules and secondary rules.
Obligations: Moral and Rule
Primary rule: Physical manifestation of an act. Creates a duty of either
doing or not doing something. Requires physical conduct.
Secondary rule: Are parasitic to the primary rule
Continuity according to Austen was based on habitual obedience and
succession. But this presupposes the existence of laws. (Identity crisis is
solved by applying this? LOLOLOL xD)
(And here we go with the wacky analogies :P Hello dreamland!)
(LOL, is he defining himself? xD)
Constitution means to create.
Primary rule is when people exercise their right to frame laws. Primary duty.
When people delegate their right to a smaller group, it is secondary rule
(Okaaay? o.O)
What is rule?
Primary and secondary rules are forms of the legal system. Rules create
obligation. Analysis of why the Austenian model fails. Difference between
'having an obligation' and 'being obliged.' The latter is covered by the
Gunman theory. (Sigh. Why even>.>)

Jurisprudence Page 17

25th July
26 July 2013
19:00

Prediction theory-the basis for the difference between being obliged and
having an obligation. External observer says that this cause allows him to
predict the behavior of the internal community.
The concept of 'being obliged can be applied in a simplistic society. The
requirement of law is based on the principle of sanction. Deliberate
disobedience of an obligation makes it cease to be law (wait...I think he's
talking about the proportion of evil to the harm of doing the obligation)
(Okay off we go into Lala Land :P)
Sanction is the justification for following the law. It is not the cause of law.
External observer-can tell what the rule is, even though the rule is not
applicable to him/her.
Internal aspect is a form of social pressure. Sanction is thus a result of such
internal behavior. It is the justification for following the law.
Shift to modern society.
Says that primary rules were present in a primitive society.
Problem of uncertainty- no information about exactly what sanction
violation of a law would lead to.
This is resolved by the rule of recognition. To understand where information
needed by the individual can be obtained.

Jurisprudence Page 18

26th July
26 July 2013
19:41

Happy Birthday Dad! ^_^

Rule of Change-cure for problem of static quality


Rule of recognition-cure for uncertainty
- also establishes legal validity
If there is conflict between customary law and legislation, it is resolved by rule
of recognition.
This rule provides for a hierarchy within various sources. Rule of adjudication
leads to rule of recognition especially through judicial interpretation of laws.
Rule of Change-Hart says that this is private legislation.
Agreements are contracts. They create obligations, just like law. When
individuals create law(Okay, lost track of this)
Law of Property is normally through rules, such as rules of succession. So ToP
is a creation of law as well as individual agreement (when you decide to grant
your property elsewhere).
Rule of Change-important for individuals to have power akin to lawmaking
power. The ability to create obligations between themselves. Else, this society
becomes static.
Rule of adjudication-the courts. Perform the most important task of human
life-dispute resolution, which is a deviation from the concept of self help. Most
important edifice: justice. Why is dispute resolution so important?
Rule of recognition may result in rule of obligation.

Jurisprudence Page 19

29th July
14 August 2013
18:24

International Law
Is the meaning of law the same?
Form of law-system
Content of law-obligation
How do you determine when a state is created?
So the fact that International Law is called law does not automatically make
it law. It must fit within the concept of law.
Concept of law:
1) Must have a system
2) System must contain obligations
Rule of recognition: sources of law.
So when talking about systems you would naturally look for organs such as
the legislature, executive and judiciary. So does the absence of these mean
that it is not law?
Is it right to expect elements of municipal law in international law?
Sanction is an exception. It is meant for deviants.
(This is going SO off topic. Uncharted waters! xD)
Sovereign has different meanings when considered from the point of view of
municipal laws and when considered from the point of view of international
law.
Theory of interdependence is replacing the concept of sovereignty in the
sphere of international law.

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30th July
14 August 2013
18:35

How can the idea of sovereign and an obligation be reconciled in


international law?
On whom is International law primarily applicable?
International law has two types:
1) Private (conflict of law)
2) Public
Conflict of law->subject matter is spread across countries. So which
country's law will be applicable to the dispute?
Discussion of scope and applicability of laws as far as a conflict of laws
is concerned.
Sovereign has two different connotations in International law and
municipal law.
In order for there to be a breach, there ought to be a pre-existing
relationship.

Jurisprudence Page 21

2nd August
11 September 2013
18:27

Under the international meaning of sovereign, a sovereign can only be


bound under obligations with the consent of the sovereign. Theory of
autolimitation. So what happens to the obligation when the consent is
revoked? Because the existence if any rule obliging the states to maintain
their consent is absent. Also, new states are not given the opportunity to
choose whether to give their consent to the obligations. Every law is derived
from a pre-existing law (Kelson).
E.g. Police Manual<IPC<Constitution
International law is morality. He disagrees because:
1) International law in form is a primitive society, but is a modern society
in content. Morality is uncertain. Legality is clearer and more
determinate.
2) Morals can be changed by legislation. But they cannot be created by
law.
3) Breach of law leads to demand of a claim. Breach of morality leads to
no such demand. International reflects the former, with the system of
claims in place.
Analogies in International Law
Treaty forms binding international obligation. So it has the element of a
legislative act. But treaties between parties created by violence are valid.
Also ICJ decisions are obeyed. However, there is no obligation to do so.
Kelson model-> for a law to be a legal system must be based on validity
theory (every law should derive its validity from a previous law). There
should be a basic legal norm.

Jurisprudence Page 22

6th August
11 September 2013
18:59

Pure Theory of Law


How pure theory of law is different from other theories of law. Difference
between nature and society, but this is not easy. Society is made up of
humans, who are also a part of nature. Doing an act can have an objective
and subjective meaning. Peculiarity of law.
He says that he is concerned with the science of law. Pure theory.
Naturalists: the 'ought' proposition. Kelson says that law is a phenomenon
and not a fact. Phenomenon is called the science of law. Attempt to explain,
with the explanation meeting the needs of all legal systems. Austen's
explanation was problematic because he mixed law and political science.
Two parts to law:
1) Objective or visible part
2) Subjective or meaning-> whether legal or illegal.
Norm is required to determine the subjective meaning (meaning,
understanding whether the act is legal or illegal). Thus, the norm determines
the subjective meaning. Thus the phenomenon of the norm should be
understood to understand the phenomenon of law.
Norm-relative concept. Relationship between two persons. Norm is an
'ought' proposition which is the command of an individual. One has the
volitions and the other confirms to the proposition. This does not refer to
human behavior which is present irrespective of anyone's will. Does not
count when the follower would have performed the act anyway.
Volition of someone->fact. The possibility of the other either carrying it out
or not is the 'ought proposition'. This uncertainty of the second individual's
actions is the norm. this ought covers 'command,' 'may' and 'can'.
IPC has two types of norm:-offence section to accused and punishment
section to the judiciary.
Physical act regulated in two ways: positive or negative
This theory is the general theory of law.
The will of one and the uncertainty of the confirment of this will by the
others.

Jurisprudence Page 23

8th August
11 September 2013
19:19

Objective-present on the face of it.


Subjective-interpreted or inferred. Intention is inferred through objective
evidence.
Positivism v naturalism-gave rise to the 'is' and 'ought' theory
Maneka Gandhi-Naturalism upheld
Golaknath-naturalism upheld
Positivist-law as a factual situation. What it 'is'.
Kelson explains the phenomenon of law. The cause and effect principle.
Wish/will and act. Law is concerned with the performance of the act. Is (will)
leads to ought (act).
The act cannot be a factual situation which would have naturally occurred
even if the will/wish was not stated.
Austen did not consider 'ought' to be power conferring.
Basic theory-all norms are ultimately derived from the constitution. The
constitution is thus the highest norm. It is known as the Grundnorm or
Basic Norm. He refers to the constitution of human society.

Jurisprudence Page 24

12th August
14 August 2013
19:20

'is/ought'
Someone's subjectivity becomes someone else's objectivity-> as act leads to
creation of norm
Reaction-> the uncertain 'ought' becomes the objective reaction of the
subjectivity of the wish.
All objectivity is a reaction to subjectivity.
Each norm is validated by a higher norm. this deals with validity of law and
not legality of law. What validates the ultimate norm?
Creation of society lead to the formation of the grundnorm

Jurisprudence Page 25

13th August
13 August 2013
11:45

Happy Birthday Shveta! Trolling us on your birthday, stupid


girl :P

Social Order
The norm must exist in space and time. The norm is personal and material.
Social order is a normative order which determines the behavior between
humans. Social order is the constitution. It is not about the validity of the act,
which is determined by a norm. It is about the validity of a norm.
Norms are bound by space: implies the territorial limitations of norms. Also
refers to the concept of actus reas as required by criminal law. Are laws which
have never been acted upon still laws? The norm is in existence, but the
conditionalities for following the norm have not been met.
Application aspect of law determines the temporal aspect of law (talking about
retrospective and prospective laws).
The Personal and Material aspect forms the core of the validity.
Human behavior results in the creation of norms. This is personal aspect of
validity. How does norm interplay with human behavior-Positive (directs or
forbids directly) and Negative (has no direct directions-neither forbidden not
allowed)

Jurisprudence Page 26

READ: Validity of norms and social order

Norms can be legal and moral, so remember to


differentiate between the two.

16th August
11 September 2013
19:26

Sanction within a social order


Austinian model-simplest form of legal existence. One to one direct contact.
Kelson also refers to a one on one interaction. But for Kelson, the law is
derived from the response while Austen understands the request or
command to be law.
Questions of validity and legality.
Legality can be interpreted only in the presence of a norm.
Coercive social order:-social order which has elements of sanction. A
normative order need not always have a sociological psychological coercion.
Two types of sanctions: (check this)
1) Incidental
2) Direct
No social order is possible without sanction. Legal order, moral order,
approval /disapproval of society acts as sanction
Religion doesn't exactly have immediate effects. But it is still sanction
because it puts pressure on the people to follow the order through the fear
of retribution in the next life.
Norms are valid only in the existence of a social order.

Jurisprudence Page 27

19th August
19 August 2013
11:46

Social order and idea of sanction


Pay attention to the differences between normative, social, legal and moral orders.
The common element is the presence of the term: order.

Yeah, yeah, sure >.>


Wow, was that a confession? XD

The distinction between moral norms and legal norms will be explained by the concept of
sanction.
What does he mean by the term order?
Law: time-when
Spatial-where
Personal-whether applicable on the individual or not
Material-various aspects of human behavior. What behavior should be encouraged or
discouraged.
Individual norms taken together to indicate human behavior result in an order.
What is sanction?
Two types:
1) Approval and disapproval
2) Evil as coercion

Social order:
1) Moral order
2) Legal order
Should determine which aspect of human behavior should be regulated by coercive element
which would term it a legal order.
It is possible to have a situation where something is permitted and another situation where
the same thing will be permissible. (E.g. homicide is forbidden, but is permissible in special
exceptional circumstances such as self defense, etc.)

Sanction:
1) Reward
2) Punishment-forms a coercive order. It must have an evil in it, and must be organized.
Sanctions are also included in moral orders in the form of approval or disapproval.
However, this is not organized, unlike the case of a legal sanction which is organized. Thus,
it cannot be called punishment.

Monopoly of violence

Jurisprudence Page 28

This sounds more like a confession


now xD xD

Grund norm: social order to


monopoly of violence. READ.

What is grund norm.

22nd August
22 August 2013
10:46

For Kelson, law is a phenomenon which is concerned with human behavior. The first area
where this is seen is where a human's behavior is the objective reaction to someone else's
subjective wish. This creates a standard behavior called norm. one of the outcomes of this
creation of norm is the formation of a social order.
Distinguish the normative order from the social or legal order.
When a social order evolves, it becomes a state.
Normative orders must have a spatial and temporal limits.

Social order
Normative order is related to human behavior. So when two or more human behaviors are
conjoined, then it is termed social order. This social order matures into a State over a
period of time. Thus, social orders are the primitive concepts of the idea of state.
Over time social order morphed into three types:
1) Moral order-have sanctions, but these are not forcefully enforced
2) Religious order
3) Legal order-sanction which is a coercive act and carries punishment inflicted against
the will of the sanctioned individual. Self imposed punishment is an exception to this
rule
Relation between authorization and permission creates a state from a social order. It
creates an institution.
In order to ensure the effectiveness of sanctions, two conditions must be met:
1) Individuals within a state must give up the use of violence among themselves,
reserving the state's right to use such force.

Jurisprudence Page 29

READ
Page 193: Chapter 5/ 6
Grundnorm theory as the basic norm
theory

The grundnorm is concerned


with validity of laws rather than
sanctions.

23rd August
23 August 2013
11:52

Basic Norm
When you say something is valid, you mean it is binding. Does the creation of the concept
of authority presuppose the existence of something? Based on the major premise and minor
premise. Habitual obedience is not enough to establish authority. His authority will also be
based on the basic norm of the system.
Religion is premised on belief or presupposition.
Presence of the two types of norm systems differentiates the content of the norm from the
validity of the norm.

Centralization of the use of force leads to the development of institutions in society. These
institutions give rise to the notion of authority.
The 'is' does not explain the 'ought'. Actual behavior does not state whether it is ideal
behavior.
The 'ought' statement (major premise) coupled with the 'is' statement (minor premise) gives
the normative order. You cannot explain the normative the order in the absence of either of
the two premises.
The 'is' statement will be a derivative of the 'ought' statement
'ought' raises the question of validity.
'is' raises the question of legality of the act.
The distinction between 'knowing' and 'willing'.

Jurisprudence Page 30

Two questions from Kelson


Especially the basic norm bit

29th August
29 August 2013
10:45

Ronald Dworkin wrote: Model of Rule I and Model of Rule II-compiled in a


book 'Taking Rights Seriously'
Here we go again.
READ: Model of Rule I by Dworkin.
Hart says that law is a result of primary and secondary rule.
Grandfather wrote a will, attested by two witnesses as required under law.
The grandson then killed his grandfather. He was prosecuted and was
sentenced to prison for 10 years. The motive of the murder was the property
willed to him by the grandfather. The Will Act said that a valid will would
have to be executed. So would the killer get the property? Would it
encourage others to commit the same crime?

Jurisprudence Page 31

2nd September
02 September 2013
11:45

DWORKIN
Model of Rule-I
Are the primary and secondary rules enough to encompass all situations under law? Then
what happens to the application of principles?
This requires a distinction between the rule and the principle. This is because a rule has
the concept of being obligated and being obliged. How do we distinguish rule from
principle?:
1) A rule is an all or nothing identity. It must be applied or rejected in its entirety.
A principle has an dimension
2) Rules may have an exception attached to it. This means that you have to apply the
rule and only then can you avail the exception.
Principles have an dimension. This means that you will decide whether to apply the
principle or not based on the case. You can determine which principle can be used in
the particular situation.
READ: the discretion part.

Jurisprudence Page 32

Rules are not enough because principles


and policies form an integral part of the
legal system. Idea of Realism. Judges and
lawyers are the custodians of law.
A principle is a statement of a goal.
There is a choice regarding the use of the
principle based on the facts and
circumstances. This leads to the concept of
justice.
Principles are assessed and weighed to
understand whether it should be applied in
the case at hand. This leads to the concept
of discretion.

3rd September
03 September 2013
11:52

This article criticizes the concept propounded by Hart that law consists of
only rules. It also requires principles. He is a realist, which implies that he
believes that the law is made by the judges rather than legislature.
He raises the question of whether judges end up legislating when passing
judgment.
Law is of two kinds:
1) Institutionalized-passed by the legislature
2) Non institutionalized-this refers to customary practices
Rule of recognition gets its binding value from social acceptance. Then why
can this not be used for principles as well.
If a rule is applicable in a situation and is not applied, then the rule will be
invalidated.

Discretion
Three kinds:
1) Weak discretion-use of judgment
2) Weak discretion-final authority to make a decision.
3) Strong discretion

Jurisprudence Page 33

9th September
11 September 2013
22:08

Mechanical jurisprudence-application of principles which are predecided.


Thus, this will not apply in situations where a case has no existing principle
applicable to it and new principles must be evolved.
Principle and policy work in addition to rules. They are used to counter
vacuums.
What are principles? Can they be explained through customs?
Legal recognition of a custom implies that it must be applied if the case
comes under its purview.
Discretion is the basis of the difference between rule and principle. Hard
cases are those which require the use of discretion to arrive at a decision.
These cases give birth to strong discretion.

Jurisprudence Page 34

10th September
10 September 2013
11:59

Hard Cases
Concrete right: when rights conflict with public policy. They can be used to
determine what weightage ought to be given to what. These can be
institutional and must be legal principles and not abstract principles.
For hard cases, use principles that are institutional rights.
Common law principle cannot be applied without limit.
Ingredients of a Hard Case:
1) Law suit
2) Cannot be brought under rule of law laid down in advance
3) Judge has the discretion to decide either way
When a statute is passed, a policy is transformed into a principle. (check this
though)

Rights are created when a policy becomes a principle.

Jurisprudence Page 35

12th September
12 September 2013
10:42

Judges only take care of principles not policy.


Dworkin's model is constructed for CIVIL cases.
Policy and Principle are used to differentiate between the act of legislating
and the act of adjudicating. Basically, the considerations taken by the
legislature will not be looked into by the judiciary

Jurisprudence Page 36

13th September
13 September 2013
11:45

The preconditions of this article is the presence of a hard case, with no clear cut rules.
Right thesis-judges search for preexisting rights. This is different from the act of legislating.
Duty of principle-the search for preexisting rights to be used to decide a hard
case.

Judiciary and Legislature are both included in the political domain. So the difference
between policy and principle is political rather than legal.
Judges are also political authorities as they decide on matters of polity.
Judges are not free from their own personal morality and political considerations when
using principles. So is it right to say that judges rely only on principles and not policies?
Two kinds of principles of application:
1) Intuitive-this might have the problem of bias.
2) Institutional

Can argue that judge's morality is curtailed by precedents. But these are in
turn the result of judge's morality.
This problem can be solved by the use of political rights, which depend on
political considerations.
But this has problems too.

Jurisprudence Page 37

Distinction between policy and principle


takes place only in the situation of a hard
case.

Political activity of the judge is when he balances


the rights and other considerations.

Policies change because of the presence of pressure


groups which influence the legislature.

16th September
16 September 2013
11:47

The article is based on the thesis that in Hard Cases


The central premise of the article is that positivists believe that in cases
where there is no set rule, judges legislate, which he disagrees with. He says
that the judges are merely following a pre-existing right to win which
belongs to one of the parties. The judges cannot invent rights
retrospectively. Thus, judges even in Hard Cases do not legislate. They
perform political acts of determining a pre-existing right. Dont forget that the
theory is based entirely in the situation of a hard case.
The above distinction is the main difference between positivists and realists.
Thought both believe in the existence of a pre-existing right to approach the
court and win or lose the case
Positivists say that judges create a law and then retrospectively apply it to a
pre-existing right to win.
Realists say that judges discover the law from pre-existing rights. So he
discovers a pre-existing right which can be used to justify the decision
made.

How does he determine what rights pre-exist?


He says that they are based on claims which have been influenced by the
history of that society. So the judge is influenced by two things:
1) The history or the anthropological evolution
2) The political system that he belongs to
So you must also show that the judge behaved as a political authority.
The judge finds the rule, but does not invent it. So he must be as
independent as other organs of polity. He will thus behave as an
autonomous body of the political system
Thus we need to distinguish between the concept of rights and goals.
The decision would lead to expectations for other people in the same
bracket.

Jurisprudence Page 38

17th September
17 September 2013
11:53

Policies achieve goals. Rights do not have a comprehensive scheme and thus
they do not have to achieve a goal.
So person arguing on the basis of a policy will be asked what goal he wants
to achieve.
Rights are enforced when there are clogs in the legitimate right to expect. So
according to Dworkin, the judge looks at history to determine what was the
pre-existing legitimate expectation.
Principle is an individuated aspect of a goal.

Jurisprudence Page 39

26th September
26 September 2013
10:49

Natural law theory: Fulher, Kant and Aquinas.


Hard Cases
His thesis is called the 'Rights Thesis'. This means that rights are pre-existing and the
judges need to discover it.
Right Thesis
His statement is based on argumentative explanation. So it is based on the considerations
of the distinction between principle and policy. This shows the difference between
legislation and adjudication.
Also uses the difference between principle and democracy. Does the prospect of judges
legislating damaging the basic feature of democracy? Is he usurping the role of the
legislature? Does it blur the separation of powers?
Jurisprudence-the most important part. Refers to institutional and cultural history which
must be taken into consideration.
Points out three problems with the rights thesis:
1) How to distinguish between goal and right?
2) Judges may decide on the basis of their understanding and morality. Problem of
institutional and non institutional rights. Role of precedent and institutional history.
3) Make decisions based on political morality

How to distinguish between goal and right


Deep rooted existence in the form of morality. Types of rights:
1) Concrete right
2) Abstract right
3) Basic right
If this difference is clearly shown, then it is proven that when the judge searches for rights,
he does not affect goals which are the domain of the legislature.
Distinction between concrete and abstract right: C-distributional aspect is specific and
individuated. A-individuated but the distributional aspect is more general.

Jurisprudence Page 40

Do not confuse the concept of local


standi with hard cases.

27th September
27 September 2013
11:51

Dworkin's Hercules
Criticism of Hart's Theory that judges legislate when deciding Hard cases: known as open
texture of law or open cases.
Abstract rights and concrete rights must be institutional rights. What is meant by the term
institution?
The constitution is the point where people decided to live together. It is the political
representation of the people's aspiration. Certain morals that these people associate
themselves with. This is the justification for the presence of the constitution. It gives Hercules
an idea of the customs that have percolated over a period of time.
READ: Fulher: First 2 chapters (Book: Morality of Law)

Jurisprudence Page 41

30th September
30 September 2013
11:47

NATURAL LAW THEORY


READ: Splecuem Explorer's case (from module)
Morality of Law-Chapter 1
Deals with human nature.
Natural law= Morality+ Rationality (reasoning)
Every human is born free
Morality here refers to goodness.
Two kinds of morality:
1) Told by society-morality of duty
2) Personal morality-morality of aspiration
For a naturalist, morality adds purpose, the purpose of becoming good.
Thus natural law = good.
Two questions:
1) In the struggle to become a good human, what elements take you from good to best?
What role does law play?
2) Is v ought proposition.
Morality means existence of a duty and this duty must attain a good.

Jurisprudence Page 42

1st October
01 October 2013
11:58

WRITE: similar to what Justice F writes


1) No deterrence
2) Cannot be termed conspiracy or murder because of contract
3) Exception:

Jurisprudence Page 43

3rd October
03 October 2013
10:48

Spelucean Explorers

Jurisprudence Page 44

7th October
07 October 2013
11:35

Ought phenomenon-when law tries to achieve something

Corporate Social Responsibility turned morality of aspiration into morality


of duty.

Jurisprudence Page 45

8th October
08 October 2013
10:43

Morality and Theory of Economics


The concept of good comes in two forms:
1) Duty
2) Aspiration (derived from personal aspirations)
Discipline of law and discipline of economics have a similar problem...it is
difficult to define the discipline.
But economists agrees that the study of economics involves the exchange
between human beings as well the study of marginal utility.
Theory of exchange=morality of duty
Theory of marginal utility=morality of aspiration.
Theory of Exchange
In economics, the starting point was the barter system.
How was the worth of goods determined in this system?
The society determined the value of goods, giving a certain basic value to
them.
In the same way, society determines a certain basic level of morality in every
human through morality of duty.
Theory of Marginal Utility
How does a person choose to spend each rupee?
What is the order of spending? Each person has a different choice.
Basically an analogy with personal choice. In both situations, that is,
morality of aspiration and marginal utility, it completely depends on the
choice a person makes.

Jurisprudence Page 46

8th November
08 November 2013
11:38

KANT
Book: The Moral Law
He has propounded the theory of moral law and has emphasized reasoning (also called
knowledge). The content of morality is based in reasoning or rationality or causality (see below
for the reason why).
The conduct is taken into consideration when deciding morality.
Act divided into:
1) Instinct
2) Rationality
The distinction between acts derived from the above two makes the distinction between animal
and human.
The causality of the action of a human is rationality.
So are instinctive acts natural or are rational acts natural?
Instinct: urge and immediate reaction. No intermediate thought or reasoning.
So specified that it is the study of a rational being. So if a living organism acts purely on
instinct, it cannot be called a rational being.
Is rationality granted by nature?
When a man thinks and reasons, is it natural or unnatural?
This has given birth to the theory of knowledge.
Knowledge is of two kinds:
1) A priori-already known and is transferred to us
2) A posturari-gained through experience
Is the limitation of human reasoning the boundary of knowledge?
Study of rationality gives rise to the concept of morality.
Rationality considers whether the act to be performed will be a good act or a bad act.
How to decide whether an act is good or bad?
His idea is that the best virtue a human has is good 'will (implying good intentions).
So a human weighs the consequences of his act to determine the goodness or badness.
Sometimes the happiness derived from the act may decide the goodness or badness. But does
this determine morality?
Good will is will which results in good in all circumstances and not that which is good in only
narrow circumstances or qualified good.
Good divided into:
1) Qualified-because of personal interest. It is a good act, but it may not be a moral act.
2) Absolute- good under all circumstances without any qualifications. This is determined by
the three principles of Kant:
a) The motive of duty-it must be carried out with this motive. A human action is morally
good not because of immediate inclination (causes which move you may not affect others)
or even self interest but because it is done for the sake of duty. It is a result of duty.
b) Concept of duty-an action done from duty has its moral worth not from the results it
attains or seeks to attain but from a formal principle or maxim-the principle of doing
one's duty whatever that may be. In order for a duty to exist, there should be a principle
Jurisprudence Page 47

one's duty whatever that may be. In order for a duty to exist, there should be a principle
c) Duty is the necessity to act out of reverence for law.
If morality is subjective, then there is no possibility of an absolute good. Thus morality is not
subjective, but the tests to determine morality is subjective. Meaning that whether the act is
good or bad is judged by its effect. But the reasons which lead to the commission of the act is
subjective.

Jurisprudence Page 48

11th November-IMP
11 November 2013
11:45

How to study
Syllabus-all the authors in class. What has been covered in class.

Kant-library notes
Fuller-module-first two chapters
Acquines-module
Kant
The concept of knowledge is dependent on the concept of human thinking,
which is called rationality.
What is the meaning of the term rationality?
He claims that it is the concept of 'good will'. Certain conduct is performed
because the derivation of happiness out of it is desired.
Thus, the understanding of what amounts to good becomes the study of
morality.
If the act is prompted by good will, then it will be good, irrespective of the
outcome or consequences of such act. It will be morally good. However, note
that all good acts may not be morally good. Morally good acts are not
prompter out of self interest/self inclination. This means that acts taken out
of sympathy are good, but not morally good.
1) Moral acts are performed not for self inclination, but for the sake of
duty.
2) A moral act is moral because it gives effect to a maxim-that of doing
one's duty
3) Duty is the necessity to act out of reverence of law.

Jurisprudence Page 49

12th November
12 November 2013
11:50

FULLER

Jurisprudence Page 50

14th November

READ: Hoffield..VERY CAREFULLY


VIMP-Jural Relations-in the Module

14 November 2013
10:50

Fuller-3rd Chapter is imp


Positivists and Naturalists think of morality differently
Positivists-think it is an obligation, similar to but not quite law
Naturalists-think of it as virtue or goodness

Fuller is concerned with the morality of law. What are the specific reasons for laws to be
made?
The reasons for which the law is made signifies morality of law.
People giving duty must first understood what 'perfect good'.
Eventually, the pointer of difference between MoA and MoD must be removed.

What conduct to be regulated-> morality of duty


What conduct is to be decided by individual-morality of aspiration
The story of Rex (the dunce :P)

Jurisprudence Page 51

15th November
15 November 2013
10:09

Chapter 2: Rex.
Codification of laws.
Law should be generalized in a manner which includes everyone under its ambit.
Problem with the king deciding all cases: they are decided according to the personal beliefs
of the king. There is no systematic understanding of the law.
The difference between Rex and judges: judges are trained in the law. They are objective.
They are aware of the need to concentrate on law rather than the litigant.
It also talks about the hardship of drafting a code to describe the conduct of humans in a
legal system.
Generalization, pattern, clarity-three problems faced by Rex.
Along with generalization (making it applicable to everyone) it should have a pattern. There
should be a uniform method of deciding cases. Thus, mere generalization is not enough.
The second requirement is that of pattern. This can be best established if judgments are
recorded, so that a pattern in the decisions can be noted. Generalization gives you how
everybody's conduct ought to be and patterns shows how law is evolving and in what
context it is evolving.
The third requirement: clarity. Generalization and patterns are not enough. It is also
important to understand what conduct is to be followed under law. Unfortunately, most
laws do not have this requirement. Laws are loosely worded.
Hoffield
15 marks. Application question
This article is about jural relationship
All about understanding jural relationships.
Problem identified: the use of the word right. This word is misused extensively. It is used to
cover all jural relations: immunity, power, privilege, etc. This is wrong, it should not be
used for all cases. Twitter v Atkinson (?) case
Then how to define right?
Jural relationships establish locus for cases.

If jural relationship is established, then how should it be described.


Fundamental concept: determining the jural relationship between two people engaged in a
civil suit.
1) Jural opposites-looks at self (meaning that if you have immunity, you cannot have its
oppposite, aka liability )
2) Jural correlatives-looks at someone else
Understand the above two concepts.

Right is claim. If there is claim, then there can never be a no claim. If there is a claim, then
someone else must have an obligation. This someone else will create a jural relationship
with you.
Claims: situations which are protected by law.

A claim not protected by law is not a right.

Jurisprudence Page 52

1) First attempt was


subjective-thus objectivity
of morality of duty is
missing

18th November-SYLLABUS
18 November 2013
11:47

Syllabus
What he has taught.
Positivism-Austin, Hart, Kelson and Dworkin
Natural Law: Fuller and Kant (Acquinas)
Hoffield
Justice (well done micheo sikhia >.>)
Only what has been discussed in class will be covered
Study Material
Read the original source.
Skip the parts not covered in class.
Follow the sources used in class.
How to study OTL
READ :P
Marks for originality and understanding the concept. For something which
makes sense and is analytical.
Analysis-explaining and simplifying to its simplest form (oh that makes
things so much better >.>)
Unfolding assumptions.
What to write
Make sense :P
Answer length is not relevant. (Hallelujah! :D)
Just make sure you answer the question asked.
HOFFIELD
Why: because other authors oversimplify the word 'right'
It gets confused to mean all possible jural relationships.
Jural relationships or legal relationships determine the behavior, character,
interest and other incorporeal things. These cause a conflict with corporeal
things. (eh? )
At the very outset, it seems necessary to emphasize the importance of
differentiating the purely legal relations from the physical and mental
fact that call such relations into being. Obvious though that these
suggestions seem, it is seen in legal arguments and judicial opinions,
an unfortunate tendency to confuse the difference between legal and
non-legal relations. Even in ancient law (Greek and Roman, it was
difficult to construe transfer of -non corporeal objects such as the
benefit of a contract. To them, the only thing that could be transferred
were corporeal objects.
The physical relation influences the legal relationship. It determines the
manifestation of fact. Physical fact.
So differentiate the legal relationship from the physical and mental fact.
The outcome of your interest in an object is property. Interest is a mental
fact and the existence of the object is a physical fact. This gives rise to your
jural relationship.
The interest changes the outcome of the jural relationship (see different
Jurisprudence Page 53

The interest changes the outcome of the jural relationship (see different
relations with property: mortgage, ownership, etc.)
So what is a fact?: operational and evidential
Operational: affirmative and negative.
These are facts which establish the existence of the jural relationship
There must be a fact to establish both a corporeal as well as an incorporeal
jural relationship.
An evidential fact is one which on being ascertained affords a logical basis
(though not conclusive) of determining other fact.

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19th November
19 November 2013
11:50

Jural opposites-cannot exist in the same situation.


Jural correlatives-exist in another person in the same situation.
Power according to Hoffield means the ability to change legal
relationships.
Hoffield introduced the concept of Immunity. The other 3 were introduced
by Salmond.
Hoffield also introduced the concept of jural opposites for the first time.
Correlatives were introduced by previous authors, however opposites were
an innovation by Hoffield.

Right

No Right

Privilege

Duty

Power

Disability

Immunity

Liability

Vertical arrows represent jural opposites


Diagonal arrows represent jural correlatives

If a person has a jural relation, he cannot have the opposite of the jural
relation in the same set of operative facts. Opposites are concerned with
the person claiming the original jural relation. Correlatives are concerned
with others present in the same fact.
Privilege is the negation of duty. Implies you do not have a duty to not to
do the act.
Disability-no ability to change legal relationship.

(sale of car is power as you change your legal


relationship with the car)

Immunity-absence of any legal relationship that can be brought against


you . No legal action against you is possible.

Correlatives-concerns another person within the same operative facts.


Right is a claim against someone. For a claim to exist, another party
against whom it is exercised must exist. A claim protected by law becomes
a right. Implies that the person against whom the claim exists has a
correlating obligation or duty.
Privilege-jural correlative is no-right. The other person has no right vis a
vis the person exercising the privilege.

Power-correlative-liability.
Basically the consequences of changing the legal relationship must endow
another with liability.

Jural concepts are applied in legal reasoning to


determine jural relationships

Immunity-correlative-disability
Disabled from bringing action against a person who has immunity.

Presence of multiple operative facts results in the existence of multiple


jural relationship. This means that you may have a certain jural
relationship with one individual which is different from your jural
relationship with another in the same set of operative facts.

Jurisprudence Page 55

READ: Theory of Justice by Ro..? In Llyods.