Dear Reader,

This reading material consists of a total of 52 pages and is to the best of my knowledge sufficient.
The references for the material are my class notes, Lloyd’s, Dias and Friedman. Please feel free to
ask me incase any doubt arises. Also, please note that the paragraphs highlighted in red mean that
either I have not been able to remember those points or just that I have doubts with respect to the
same. Happy Reading & Best of Luck!

Regards,
Ankita

JURISPRUDENCE I: PHILOSOPHY OF LAW [THEORY AND SOURCES OF

LAW]

Unit I-Introduction of Legal Theory

1.1 Need to study jurisprudence, its importance and applications

1.2 Nature, meaning, scope and functions of jurisprudence
1.3 Is it a social science?
1.4 Relation with other social sciences.

1. Jurisprudence is derived from the latin words ‘juris’ and ‘prudentia’ meaning knowledge of the
law.
2. It is a systematic study of law and the legal system.
3. However it doesn’t only pertain to the legal system but also to other fields as well.
4. Earlier, legal education was very dogmatic based only principles which couldn’t be questioned or
criticized. People would develop their own concepts of right and wrong. Later, came the concept of
‘context’ whereby a need was felt to study law in different situations and with respect to various
fields like sociology, psychology, political science, history, science and philosophy.
5. Mostly in common law countries, the lawyer was expected to apply the law to the problem of
his clients, without even considering things like what would be the impact of law on society , to
speculate what the role of law or a lawyer should be in a society, etc. There was no concept of legal
education and the legal profession was mostly developed by way of apprenticeship. However, in
the civil law countries, legal education was given a lot more importance. A need was felt to teach
law not just as it is but in context of other aspects as well.
6. Jurisprudence essentially involves the study of general theoretical questions about the nature of
laws and legal systems. A study of jurisprudence encourages a student to question assumptions
and develop a wider understanding of law and the legal system.
7. Examples may be given of a few cases-
(a) Oppenheimer v. Cattermole- It was the case of a German Jewish refugee who lost his German
citizenship and had not applied for‘re-naturalisation’ of the same. The question arose as to
whether an English court should regard him as effectively having lost his German nationality and if
so he would be unable to claim dual nationality leading to tax exemptions from the UK for pension
paid by Germany. He was held to have lost his citizenship. However, several questions arose in this
context like a law depriving someone of such rights is a grave violation of human rights and that
the courts of UK ought to reject it as law at all. But then, what are human rights and what can be
termed as a grave violation? Was such a law not a law at all and hence were citizens released from
their obligation to obey? Jurisprudence may not provide the answers to these questions but it
offers clues, insights and teaches students rudiments of moral arguments.
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(b) Madzimbamuto v. Lardner-Burke- This is one of the ‘grundnorm’ cases where litigation was
going on after the Rhodesian unilateral declaration of independence. The validity of detention
effected by those in charge after the declaration was questioned. This case gave rise to
fundamental questions like what is a legal system and what is a revolution? What is the role of a
judge in such a situation? What is the relationship between validity and effectiveness? What is the
relationship between various laws? Are rules equally authoritative? Who is the authority behind
rules?
(c) Mc Loughlin v. O’Brian- This case raised the question of justification or reasoned decisions by
judges. But, what about such cases where there are gaps in the law? Can the judge turn to non-
legal cases? Are there any legal sources to which he can go once he runs out of rules? What makes
these non-rules law? Can they be validated in the same way as rules?
(d) Jackson and Ors. v. Attorney General- This was the first case in which it was held that courts
may strike down an act of Parliament going against fundamental values. It was a conflict between
orthodoxy (Parliamentary sovereignty) and revisionism. It was seen that propositions of law to be
true if they follow fairness, justice and the due process procedure. Hence, it may be accepted that
Parliamentary sovereignty is not absolute.

8. Another function of jurisprudence relates to acquiring of social knowledge . After the

development of natural sciences it was argued as to whether social sciences like law could result in
genuine and objective knowledge. This was favoured by theorists like JS Mill who used the defence
of a ‘naturalistic social science’. As per Mill, there were scientific laws which governed man and
society and all these laws were causal. This view was also held by Auguste Comte.
9. Generally, it has been observed that a science is one in which experimentation is possible in
order to prove something. But, this view has been gradually rejected. It has been seen that science
doesn’t lead to absolutely rigid causal laws but statistical regularities. Secondly, it has been seen
that in every event there remains an element of chance and thirdly that verification is not always
possible. Finally, natural sciences are not value free.
10. But, can social sciences be fitted into this modified view of natural sciences and if so then how
far? Social sciences may have various complexities attached to them but it doesn’t mean that
there cannot be any unity of method between them and the complexity exists only in degree .
Infact, even in physical experiments certain ideal conditions are presumed.
11. However, the social scientist comes across 2 major problems. Firstly, the object of enquiry is
different as compared to natural sciences. Natural scientists study matter which can be externally
controlled by the scientist. Social scientists on the other hand are concerned with men and their
behaviour which cannot be controlled as men define their actions themselves and behave in a
particular manner. Social life has an internal logic which needs to be understood while natural
scientists can impose external logic on their matter. An understanding of man’s subjective intention
and behaviour must be developed by theorists who also share subjective meanings. But, this leads
to another problem, the social scientist cannot experience the experience of another.
12. Incase of such problems, how shall a social scientist or a jurist acquire knowledge? A
suggestion has been given by those studying judicial behaviour/decisions to study behaviour as
being concrete, quantifiable and susceptible to scientific analysis. However, it has also been
suggested by others to focus on actions rather than behaviour as these actions arise from
meanings which define social reality.
13. Another problem is that the outside world is complex and hence we may end up trying to over-
simplify things and lose valuable information in the process. Also, our ability of examination
reduces as objects recede into the distance.
14. We do not as such find the social world structureless but only study what has been pre-
selected and pre-interpreted by the society by means of common sense. Hence, the job of a social

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scientist is to transcend these interpretations and make sense of the working, relationships, etc
within society.
15. A theorist must distance himself from anomalous cases which cannot be examined or theories
which cannot explain, etc. Rational explanation may only be given by a theorist who takes steps to
neutralize his pre-scientific understanding, concepts and values.
16. Jurisprudence similarly is concerned with rule governed action, activities of judicial officials and
their relationship with the society. Contemporary jurisprudence reflects philosophical debates
about the meaning of social knowledge.
17. The next function relates to the study of the normative character of law.
18. Too much emphasis on law as a science can lead to ignorance of the fact that it consists of rules
and norms which prescribe a definite code of conduct.
19. Normative rules need to be distinguished from physical rules which deal with causal
relationships. The notion of truth and falsity is not applicable to normative rules and they deal only
with what ‘ought to happen’. However, the term ‘ought’ doesn’t necessarily mean a moral
obligation.
20. Another function of jurisprudence is to deal with ‘what is and what ought to be.’
21. This brings us to the difference between Expositorial and Censorial jurisprudence, the former
dealing with law as it is without regard to its moral character and the latter pertaining to what law
ought to be. This also leads to the natural law-positive law debate.
22. Several attempts were made to link positive law with natural law thereby linking normative
rules directly to something which has a factual character. This led to a confusion called ‘naturalistic
fallacy’ by GE Moore as moral norms were tried to be defined in terms of something which was
factual and could be ascertained.
23. Hence, a notion that something ought to be done is not to give a factual description but to
prescribe a course of conduct based on certain reasons was developed and an unbridgeable gap
between ‘ought’ and ‘is’ was created.
24. Similarly, laws do not state facts but prescribe a course of conduct, reasons for compliance
being derived from a valid authority.
25. The next function relates to the form/structure and content.
26. There are jurists like Austin who have just laid emphasis on fundamental legal concepts without
regard to their content. This leads to problems particularly for Austin who tried to derive law from
the fact of sovereignty. But, he also talked of his idea of general jurisprudence in contrast with
particular jurisprudence which is concerned with general principles which are common to all legal
systems. There has been in all these legal systems the understanding of a structural identity which
doesn’t arise from fact but is logically inherent. Hence there is a difference between form and
content which is the subject matter of jurisprudence.
27. Another function is to study the philosophy of law’.
28. Science is essentially concerned with empirically observable facts and structures while
philosophy deals with ultimate questions of structure.
29. Jurists who study normative aspects and seek to identify the conceptual structure of all legal
systems (unifying concepts) may be rightly termed as legal philosophers than legal scientists. The
latter on the other hand study general jurisprudence and common identifiable elements of all legal
systems.
30. Hence, the main functions of jurisprudence may be enumerated as follows-
(a) To study the nature and functioning of law (as studied in different ways by natural law theorists,
positivists, realists, etc.)
(b) To study general theoretical questions
(c) Acquiring social knowledge
(d) To study the normative character of law.
(e) To bring out the difference between ‘ought’ and ‘is’.
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(f) It helps understand the philosophy of law.

31. A relationship of jurisprudence with other social sciences may be shown as follows-
(a) Psychology- As said by Kant, the nature of man is static while the mind is dynamic. The mind
performs the 3 functions of thinking, volition and feeling. As per him, it is the mind which puts
chaos in nature and then it is the mind which corrects this chaos as well. Examples of law and
psychology being applied together are more pertinent in cases of crime as incase of mens rea,
psychology of juveniles, psychology of someone under threat, etc.
(b) Political Science- Law is dependent upon the state and polity as based on the same various laws
are evolved as there are different laws in democracies and in communist nations.
(c) History- History shows the gradual evolution of law and becomes relevant to challenge and
understand the law. An example may be given of IR Coelho’s case wherein the court went into the
history of the ninth schedule to find out its exact purpose.
(d) Science- Science has application in various laws like IPR, medical jurisprudence, evidence in the
form of brain mapping and narco analysis, etc.
(e) Philosophy- This has been seen under the functions of law given earlier.
(f) Sociology- This is very important as law is essentially based in the society and behaviour of
people in society.

32. Thus, a need for comprehensive jurisprudence which takes into account all aspects of law and
the legal system is felt. The judicial process requires not only the study of legal norms but also
actual factors which influence law and decisions given by judges.
Unit II- Sources of Law-Definition, Meaning

2.1 Legislation- Nature, types of legislation, its relation with other sources, codification.

1. In India, it is defined as an Act of Parliament.

2. It is of 2 kinds- supreme legislation and subordinate legislation.
3. Supreme Legislation is one which emanates from a superior authority. In India it is essentially an
Act of Parliament, the supreme legislative body.
4. Subordinate legislation on the other hand emanates from authority inferior to the supreme
authority. It mainly pertains to delegated legislation. It is when an authority doesn’t perform its
main function, thereby performing a subordinate function.
5. Some examples of subordinate legislation are-
(a) Colonial laws- These are the laws made for colonies like those made by the East India Company.
These were subordinate to the authority of the Queen and were also distinct from the prime
function of the Company-to indulge in trading activities.
(b) Executive laws- This pertains to the rule making function of the executive. For e.g. Income Tax
officials making rules for collection of tax.
(c) Municipal Legislation- This refers to laws, rules, regulations, etc. made by local bodies. For e.g.
the Collector is empowered to make rules under the Epidemic Act.
(d) Judicial Legislations- This relates mainly to rules made by the Courts to regulate the behaviour
of their officials.
(e) Autonomous legislations- This pertains to rules made by autonomous bodies to regulate their
functioning as in the case of SEBI guidelines, RBI guidelines.

5. Legislation is possible by way of 2 methods- consolidation and codification. Consolidation is

when customs, precedents are all compiled to make a law, as in case of the Hindu Marriage Act.
Codification on the other hand is a process by which a law is put down in the form of a definite

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code, as in case of the RTI Act. There may also be cases wherein there is consolidation and
codification both as in case of the Indian Contract Act.
6. Codification must essentially be of the existing law so as to keep the new law within the stream
of continuity of the existing law. The only question remains as to what form and shape it must
assume.
7. Several methods of codification have been suggested by jurists like Bentham who thought of
creating a separate law for every separate act situation. Another less radical solution has been
proposed by Professor Jolowicz who proposed restructuring according to factual and social
problems.
8. Another debate is with respect to the generality of the law. It has been suggested with respect
to the same that the code must be broad and general with an extensive commentary mentioning
the important case laws and comments.
9. Codification is favourable as it has the attributes of accessibility, intelligibility, simplicity and
general convenience. But, this has been criticized as generally the complicated language used in a
code is not easily understood by the layman. Also, several points need to be later clarified by case
law. This reduces accessibility as it leads to ‘silting’ of case laws. Also, the amount of cost, time,
manpower, etc. spent on making a code is not equivalent to it ultimate value.
10. Nevertheless, a code creates a basic skeleton for the existing law. Also, it leads to future
reforms.
11. When Acts are ambiguous, interpretation is required. There are several rules of interpretation.
They may be liberal, mischief (check), literal, golden rule (literal + mischief), etc.
12. The mischief rule was applied in IR Coelho’s case on the 9 th schedule. Strict interpretation is
followed generally incase of criminal laws and taxation laws. Liberal interpretation in followed
while interpreting terms like ‘social benefit’.
13. Constitutional interpretation is done by following several doctrines- pith and substance,
strict/liberal interpretation, eclipse, harmonious interpretation, etc.

2.2 Precedent-Function of competent authorities, changing circumstances and its impact on

precedents-

1. This pertains to the function of judges to give just decisions in case of disputes. In Aristotelian
terms it would fall under the category of ‘corrective justice’.
2. Deciding disputes involves 3 kinds of knowledge- knowing the facts, knowing the law applicable
to the facts and knowing the just way of applying the law to them.
3. Knowing the law involves how to find the same in precedents, statues, custom, etc.
4. The doctrine of precedent led to the formulation of the term ‘stare decisis’ under Common law
which means that a precedent is binding and enjoys law-quality per se. This term/doctrine
depends on the existence of 2 factors- a hierarchy of courts and law reports.
5. Higher courts always bind lower courts and not vice versa. Courts of coordinate authority do
not bind each other. Also, it is always the ratio decidendi of a case which is binding.
6. Stare decisis has also been distinguished from the term ‘res judicata’ which means that the final
judgment of a competent court may not be disputed by the parties or their representatives or any
3rd party in a subsequent proceeding. The main differences are-
(a) Res judicata applies to the decision in the dispute while stare decisis relates to the ruling of the
law involved in a case.
(b) Res judicata only binds the parties to the case and their representatives. Stare decisis on the
other hand binds everyone including the parties involved in other cases.
(c) Res judicata applies to all courts. Stare decisis is brought into operation only by the decisions of
High Courts and other higher courts.
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(d) Res judicata applies after the time for appeal has passed while stare decisis operates with
immediate effect.

7. In 1898, the House of Lords decided that it will be bound by its decisions but in 1966, it again
announced that it won’t be bound by its own decisions.
8. In India, this power is given to the SC under Art. 141 which declares all decisions given by the SC
as being the law of the land. Even the obiter is considered as binding unless it is vague an
uncertain. But, points not taken up by the court but argued by a counsel are not binding. Also
observations made by judges in the process of reasoning do not form a part of the law under Art.
141.
9. The strength of the bench is also an important question and a smaller bench must abide by what
has been laid down by a larger bench. Also, if a smaller bench feels that the decision of a larger
bench is erroneous it must refer the matter to a larger bench. ( a 2 judge bench unhappy with the
decision of a 3 judge bench must 1st refer it to another 3 judge bench)
10. Also, a coordinate bench must not sit in judgment of a matter disposed off earlier by another
coordinate bench but must refer the same to a larger bench. Views expressed by one bench are
deemed to be binding on coordinate benches.
11. It is the majority view which is regarded as the law.
12. Such decisions of the SC are binding on the subordinate courts and tribunals. Any departure
from the same leads to contempt proceedings against the respective bodies. Also, such decisions
are not binding on the SC as such.
13. The decisions of the Privy Council or other bodies before independence may carry great weight
but they are not binding on the SC. It is binding only when ratified by the SC.
14. There is also the concept of a judgment given ‘per incuriam’ which means in ignorance of
statute or other binding authority. In such case, the authority of the precedent is weakened.
15. The Judicial Committee of the Privy Council used to be the highest appellate authority to many
courts in the UK and its colonies. But, after Britain’s accession into the European Economic
Community (EEC, later EU), most community case law are handled by the European Court though
it provides only an abstract interpretation of the same and doesn’t go into the merits of each case.
However, the judgments of the European Court are as such not binding on any country and they
may give effect to it if they so wish.
16. KNOWLEDGE OF FACTS consists of the following-
(a) It involves the art of distinguishing between the primary and the secondary/inferential facts.
(b) It relates to the knowledge of how to state facts on different levels of generality so that it may
be understood by the judge as well as the judge in a later case. It is a fallacy to state facts
specifically as the same facts will never be applicable in each case.
(c) The next is how to select the material facts as in the case of Rylands v. Fletcher. (Refer to notes)
(d) Connected with (c) is the ability of the judge in the future to review the material facts of the
precedent, add/subtract to the same, restate at a different level of generality, etc.
(e) Next is the art of knowing how to make different statements by taking into consideration
different combinations of facts. As in the case of Donoghue v. Stevenson. (Refer to notes)

17. KNOWING THE LAW on the other hand means knowing the ratio decidendi of a case.
Statements other than the ratio decidendi which have no authority are referred to as obiter
dicta.
18. Ratio is not just the ruling given by the deciding judge but includes subsequent interpretations
as well. This may also include overrulings and reversal by superior authorities.
19. However, sometimes even obiter dicta might have such authority as to compel tribunals to
follow it. Also, an obiter dicta being followed for a long time also becomes authoritative
subsequently.
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20. If 2 reasons are put forward by a court for a decision, it generally happens that both become
part of the ratio. But, if the court later declares only one of them to be correct, the other one
automatically gets invalidated.
21. The general rule is that if atleast 3 out of 5 or 2 out of 3 judges concur on the same point, it
becomes a ratio.
22. Obiter dicta need to be distinguished from judicial dicta which is relevant to some collateral
matter but doesn’t form a part of the ratio.
23. Reversal generally happens on appeal and the first judgment ceases to have effect when it
happens. However, there is a difference if a decision of the lower court is reversed only with
respect to certain points.
24. The general rule is that judges must follow a precedent except when he can reasonably
distinguish it. Repeated distinguishing of a case is evidence that the decision is not approved.
25. Although a case has neither been reserved nor overruled, it may cease to be law owing to
changed conditions and changed law. (cessante ratione cessat ipsa lex)
26. There is a difference between overruling and reversal. Reversal is when the case goes on
appeal to a higher court which reverses the decision of the lower court. Overruling mainly pertains
to overruling of the same principle in a different case. Hence, it doesn’t affect the decision of the
previous case which was overruled and the parties to that case continue to be governed by its
decision.
27. Incase a case is overruled and the subsequent case which overrules it is also overruled, the first
case gets revived.
28. Circumstances which tend to strengthen the authority of a case and which would work against
it being overruled are the unanimity of the court, eminence of the judges, approval of the decision
by later cases and by the profession at large, length of time for which the decision has stood, etc.
On the other hand, facts which compel courts to overrule a case include lack of unanimity in the
judgment, failure to take notice of relevant authorities, lack of eminence of judges who decided it,
the fact that the decision had been subsequently criticized several times later, etc.
29. Overruling may be express or implied (when ratio of a higher court is different from that of a
lower court). It is retroactive in nature but it doesn’t unsettle matters which were regarded as
being res judicata between parties to the previous decision.
30. A case may be followed or applied. It is followed when the use made of it doesn’t pertain to
the ratio while it is applied when the use made pertains to the ratio or affects it as in a case where
the judge raises the level of generality by reducing the material facts.
31. Explaining is an indication that the ratio is being shaped.
32. A judge generally uses syllogism to arrive at a particular ratio. He may do this by way of
induction (finding the major premise) or by analogy (finding the minor premise). He may also use
the method of justification wherein he reaches a provisional conclusion and tries to find authority
to support it.
33. Where there is no particular rule, statue, etc. involved, the judge may have to create a rule
from a broad rule.
34. There are certain reasons why stare decisis is still accepted. They are-
(a) Professional ethos
(b) Absence of a code
(c) Continued service of justice
(d) Avoidance of inconvenience and technicality

35. However, there are certain factors which weaken the authority of a precedent. They are-
(a) Abrogated decision-reversed/overruled
(b) Affirmation or reversal on a different ground
(c) Decisions per incuriam
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(d) Decisions sub silentio- This is when the judges have not considered a particular point.
(e) Erroneous judgments- for e.g. ADM Jabalpur
(f) Change of circumstances
(g) Repeated distinguishing

36. However, legislations do not suffer from such vices. They may be ambiguous or contradictory
but such difficulty may be cured by interpretation. Hence, they are more authoritative as sources
of law.

2.3 Custom-Reasons to accept as a source, kinds of customs

1. Custom is essentially of 2 types- conventional custom and legal custom. Legal custom may again
be either local or general.
2. A conventional custom is also a social sanction and is known as a usage.
3. Legal custom on the other hand is the real source of law. If it is local, it is area specific.
4. Features of a legal custom are-
(a) Reasonableness
(b) Conformity with legislative provisions and other local customs.
(c) Immemorial antiquity
(d) Observance as a matter of right
(e) Consistent through time
(f) Certainty and precision

5. Customs generally have a slow growth. When large sections of the society are in a habit of doing
something for a long period, it needs to be recognised by courts as a source of law.
6. Some of the reasons why customs ceased to be effective are-
(a) Enactment of several statutes especially under common law.
(b) Development of travel and communication which made the concept of ‘locality’ redundant.
(c) The fact that only reasonable customs would be considered by courts has reduced customs to
no law at all as what is ‘reasonable’ is decided by courts as such.

7. A custom becomes law only if enacted in the form of a statute or recognised by courts. However,
generally judges claim that they are bound by custom while at the same time they reject all
customs which according to them are unreasonable.
8. In English law, it has been accepted that custom prevalent and existing throughout the land
prior to 1189 will be regarded as law.

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Unit III- Approaches/ Theories of law

3.1 Natural Law

1. The content of natural law is ever changing however what has remained intact is the fact that it
is accepted as being above positive law.
2. The idea of natural rights is said to have evolved from conservative forces wanting to sanctify
the right to property as the fundamental human right overriding even the right to life. This idea
was revolutionalised by emphasis on human equality which led to the American Declaration of
Independence and finally the French Revolution. The reaction which it resulted in coupled with
several other factors lead to diminished respect for the theory until it was revived particularly
after World War-II.
3. Natural law essentially consists of moral principles which depend on the nature of the universe
and may be discovered by reason. It is believed to be the rational foundation of moral judgment.
4. One major problem that it faces is the problem of deriving ‘ought’ from ‘is’. One way in which
natural law seeks to do this is by arguing that ‘if it is natural law for man to behave in a particular
way then he morally ought to behave in such a way.’ An example may be given of the fact that it is
natural law for human beings to reproduce and it would be contrary to natural law if they don’t do
so. This is given as a justification against contraception, abortion, homosexuality, etc. as being
morally improper. The positivist on the other hand argues that such a statement confuses scientific
laws with moral and legal ones.
5. To this, natural law theorists might argue that scientific laws describe the manner in which
things should behave and hence this presupposes the existence of a creator who has subjected all
things to laws. The falsification of a scientific law would only mean that a scientist hasn’t accurately
discovered what has been ordained. But, herein lies the problem of proving the existence of a
creator.
6. Another way to justify natural law is to consider nature teleologically. Man according to this
view has his own proper function which may be discovered by reason and thought and thus this
gives us an idea of ‘good’. The teleological view sees man as having ends which can be ascertained
by reflecting on his nature and his needs. But who gives man his purposes? This again brings us
back to the question of a deity or creator.
7. Another possible defence of the teleological account is to introduce the notion of rational beings
having free will. For such beings with free will law only prescribes what ought to be done but it
doesn’t necessarily describe what happens in practice. But, then if someone has free will then how
can it be subjected to something? This leads us to conclude that man must either subject himself
to his own will (by promising) or to the will of a superior which again brings us to the point that
natural law is valid as it is willed by God.
8. Also, to say that God must be obeyed as he is morally perfect may be criticized not just due to
the problem in proving the existence of God but also the problem of defining the notion of ‘moral
perfection’.
9. The superior will could also be that of a human sovereign and thus it may be seen that natural
law doesn’t deny the existence of positive law but it is also believed that in order to be good
positive law must be based on natural law.
10. Another argument given by natural law theorists is that principles of this theory are self
evident like killing is wrong, slavery is wrong, etc. But, what about such situations earlier in Greece
and the US were slavery was not considered as bad. This has however been taken care of by
Stammler in his natural law with a variable content.
11. Other ways in which natural law has been described and rescued from criticism may be
understood by studying the various theorists who advocated it. These may be given as follows-

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St. Thomas Aquinas-

1. He propounded his theory at a time when the Church and political forces were engaged in a
bitter tussle for authority in the dark ages. A need was felt to unify Christianity.
2. His theory is based on the basic premise that God exists and that He is capable of changing
things. He regarded the Almighty as the super legislator from whom all laws emanate as He is the
creator of all.
3. He appreciated the relation between means and ends and the process of growth toward
fulfillment open only to intelligence and faculty of reason. As per him, laws consist of means
towards ends and hence the same is initially conceived in the mind of the legislator. Those who are
required to conform to his directions can also appreciate the connection by the use of their
reasoning. Thus, it is man who can ultimately decide ends for himself and rationally come up with
means for it.
4. When the achievement of an end sought by the legislator is dependent on adherence by others
to the prescribed patterns of conduct, it is essential that the same is made known to him.
According to him, law in an all embracing signification is nothing else than an ordinance of reason
for the common good to be made by Him who has the care of the community and promulgated.
5. According to him, there is a difference in everyone’s level of understanding inspite of the fact
that all are endowed with the same faculties. This is due to impulses which are that of self-
preservation, of reproduction and finally the highest impulse-that to improve and do better things.
According to Aquinas, the last level of impulse leads to perfection and it is something which can be
found particularly in human beings.
6. According to him, the path has already been set by the super legislator, we just have to tread it.
7. He also provides a hierarchy of laws, the Lex Aeterena, Lex Divina, Lex Naturalis and Lex
Humana.
8. Lex Aeterena is divine reason known only to God and those ‘blessed who see God in His
essence’. It is a plan of God for the entire universe and not just man is subject to it. It is necessary
as man is ordained to a particular end and he cannot attain the same himself.
9. The Lex Divina is the law of God revealed in scriptures and the Lex Naturalis consists of the
participation of the eternal law in rational creatures.
10. Natural law is same for all men as all are endowed with reason. However, this applies only to
the primary or general principles of natural law. Aquinas conceded that the will to do right and
awareness of what is right may be distorted by habit, custom or temperament.
11. He said that secondary principles are derived from primary ones and could be changed in rare
cases. But, a doubt still remains as to what are secondary and what are primary principles. Aquinas
also admits that human laws which derive their validity from natural law also change with human
circumstances and human reason.
12. Lex Humana or human law is essentially a derivative of secondary natural law and is required
primarily as natural law doesn’t provide most of the solutions to problems of everyday society.
Also, there is also a need for compulsion to force selfish people to act reasonably.
13. Human laws are either just or unjust. In order to be just, positive law must be virtuous,
necessary, clear and for the common good. Unjust laws on the other hand are perverse to law and
do not bind human conscience. If contrary to divine will, man is released from its obedience.
However, he says that perversion of law doesn’t mean that such law is not a law but only that it is
not law in its fullest sense.
14. Aquinas also distinguishes between positive laws of different societies and jus gentium or
international law. According to him, if a particular law is acceptable to all societies/nations, that
itself is its moral backing.

10
15. He also said that the lower laws in the hierarchy derive authority from the higher laws. An e.g.
may be given of Shah Bano’s case where Allah is Lex Aeterena, the Quran is the Lex Divina, the
Hadis, etc. are the Lex Naturalis and Muslim personal law/S.125 of the Cr. PC are Lex Humana.
16. Aquinas starts with the contention that under natural law all things are common as we all have
the same creator. However, he goes on make a distinction between the acquisition and use of
property.
17. He justifies the power to possess individual property as-
(a) Every man procures what is his more carefully.
(b) Since human actions must be orderly, each man must be charged with taking care of what is his
own.
(c) It would be a more peaceful state if each individual is contented with what he has.

18. However, he also says that the use of property must be for the common good and complete
exclusion of others makes property unlawful.
19. His theory has been highly criticized for the fact that its basic presumption that God exists has
no proof. Even if it is proved, then how can we show that God is capable of changing things? It goes
against the notion that if justice is to be done, it must be done so manifestly. Hence, it has been
criticized as being without foundation and abstract.
20. However, this theory has been appreciated as it brings about a connection between law and
morality and also talks about the equality of all before the creator.

Natural law and Social Contract-

1. Social Contract theory has the following notion at its root-‘no man can be subjected to the
political power of another without his own consent’. Obedience to authority is thus legitimated by
voluntary submission to one who exercises such authority.
2. The social contract is either a pactum subjectionis where people subject themselves to the
power of another or pactum unionis where people merely come together or a combination of
both.
3. There are 3 main social contractualists- Thomas Hobbes, John Locke and Jean Jacques Rousseau.
All base their theories on certain fundamental presumptions like the existence of a state of nature,
etc. but have some conceptual differences.

[A] Hobbes-

1. Hobbes’ state of nature was one filled with strife where life was poor, nasty, brutish and short. It
was a state of war of every man against every man.
2. Thus, for the purpose of self preservation, men entered into a social contract (pactum
subjectionis) and subject himself to the authority of law and government, giving absolute and
unconditional obedience to the law. He thus used his social contract to justify an authoritarian
government.
3. His theory of political obligation is derived from the consideration that the end of the institution
of sovereignty is the peace of the subjects within themselves and their defence against a common
enemy.
4. He was opposed to civil rebellion and said that men could rebel only when their right to self
preservation/life was taken away. He regarded civil war as one of the greatest evils.
5. He also talks about natural rights as he says that men may make legitimate demands from fellow
men.
11
[B] Locke-

1. Locke’s state of nature was a golden age, a paradise. But, one thing lacking was the protection of
property. According to Locke, this was the reason why man gave up his state of nature and gave up
his rights to the sovereign by entering into a social contract. He talks both of a pactum subjectionis
and a pactum unionis.
2. As per Locke, reason is what distinguishes men from beasts and it is through exercising reason
that men know what God wills them to do. Reason also gives the answers where God’s will is not
clear. All humans but children and the mentally ill have reason.
3. According to him, knowledge of natural law was ‘writ in the hearts of all mankind’ in the pre-civil
society or in the state of nature. In his state of nature, rights and duties correspond to each other.
The most important of such rights is to hold others responsible for the breach of law. By entering
into the social contract, man abandoned his rights to the sovereign.
4. However, Locke was concerned about the massive powers concentrated in the sovereign and the
abuse of such powers.
5. Also, the existence of his social contract and the fact that every adult member of society must
have signed the same has been questioned.
6. Locke distinguished between express and tacit consent.
7. Tacit consent involves no expression at all but is morally as binding as an express consent. Mere
presence within territorial limits amounts to tacit consent as being within the territory means
enjoyment of the actions of the facilities provided by the sovereign.
8. Active consent makes a person a full member of the society while tacit consent makes him
subject to the laws of the country but doesn’t give him full membership or rights, especially the
right to make a political choice.
9. Locke believed in revolution but he was not an enemy of political authority. He saw it as a
human good.
10. Rulers as per him were to use their powers for public good but if he abused his powers, all men
had the right to resist his authority. Herein comes his concept of trust, whereby if the ruler (in a
fiduciary relationship with people) betrays the trust of the people, he may be overthrown.
11. For Locke, to disturb the government was against the law of nature and to rebel without cause
was unjust. But, when oppressed people resist tyranny they don’t disturb the government.
Revolution by him is not seen as an act of revenge but one of restoration.
12. Locke gave a lot of importance to the right to property which according to him ante-dated civil
society and was not a creation of it.
13. Locke says that the earth belongs to God and it gives it to people on earth to enjoy commonly.
He thus dismisses the idea of private property but justifies private right to common heritage by the
concept of labour. He believed that labour belonged to the labourer.
14. According to him, it is God who gives to men the title. The sovereign only protects such rights.
He also talked about ‘no taxation without representation’ which formed the foundation of
American independence.
15. As per Locke, man had a right only to his labour. But, the introduction of money changed all
this. It made it possible for man to possess more than he can use the product of.
16. He said that taking away a man’s labour was not justifiable but taking away profits of
speculation or property which had reached its present owner through royal favouritism was
justified.
17. Like Aquinas, he defended the right to physical subsistence even if it went against the right to
property. In this context he says that a man who insists on the market price of something from a
person dying of hunger is guilty of murder in the event that such other actually dies of hunger.
18. He believed that those who laboured had the right to a decent standard of living in their old
age. He also talked of charity as God wishes man to help other men.
12
19. He thus calls for a limited constitutional government giving prime importance to the right to
life, liberty and property.

[C] Rousseau-

1. His theory relates to a contract which was a pactum unionis.

2. According to him, man always had equality and freedom, but some authority was needed to
upkeep the same.
3. To him, the social contract is whereby an individual merges into society and forms part of the
general will. Every person surrenders a part of his individual will to the general will.
4. Ideally, people should govern themselves but it is unimaginable that people shall always remain
assembled to conduct political affairs and hence a sovereign is required.
5. Law is a register of general will and a sovereign can be tolerated so long as it actually reflects the
general will.
6. Whoever refuses to obey the general will shall be compelled to do so or shall be ‘forced to be
free’. What he actually means is that disobedience is morally illegitimate because it constitutes a
failure to discharge a moral obligation a citizen incurs by virtue of being a citizen. Thus, the general
will is the moral will of every citizen.
7. According to him, every law not directly ratified by the people is void and not a law. Thus, he
calls for direct public participation or direct democracy.

Comparative table-

Subject
Sl.no. HOBBES LOCKE ROUSSEAU
Matter
Right to self Right to life, liberty Freedom and
1. Natural rights
preservation and property Equality
Limited
Role/status of A very powerful
2. constitutional Direct democracy
ruler monarch
government
No civil
disobedience as
No scope except in Allowed civil everything based
Scope for civil case of threat to disobedience if on general will.
3.
disobedience right to self sovereign abused Sovereign to be
preservation/life his power. tolerated only till
he follows the
general will.
Basis of social Freedom, Equality
4. Human reason Morality
contract and General will
Nature of Pactum
Pactum
5. social subjectionis and Pactum unionis
subjectionis
contract Pactum unionis

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Kant-

1. He said that broadly the human mind performs the three functions of thinking, volition and
feeling.
2. He says that thinking is an outcome of pure reasoning (given in his critique of pure reason),
volition is an outcome of practical reasoning (critique of practical reason) and feeling the outcome
of the power of judgment (critique of the power of judgment).
3. Pure reasoning means one without thinking about the results or outcome of something.
4. According to Kant, thinking gives rise to perception, volition to morality and feeling to aesthetic
sense (sense of good or bad).
5. Law concerns itself mostly with thinking and volition and not with feeling per se.
6. He said that we all think differently as we have different reasoning. Also, perceptions are
different and thus morality is also different. (EXTRA POINT)
7. Kant tried to differentiate between the mind and nature by saying that nature is static while the
mind is dynamic. If at all nature would have to change, it would be due to necessity. For the mind
to change, will and volition is required.
8. As per him, it is the mind which creates a chaos in nature and the mind again which unmakes
such chaos. E.g. environmental laws-man undoing the chaos created in nature by him.
9. Kant thus tried to find out whether there are any ethical postulates to prevent such chaos and
evolved the concept of a categorical imperative, which acts as a benchmark to prevent people
from straying away. His categorical imperative means to keep doing one’s duty without thinking
about the results. This makes him a deontologist. His categorical imperative is-‘do this without any
regard to any particular end to which you may or may not be inclined.’
10. This is in contrast with the hypothetical imperative which is more result oriented. Here, if too
much focus is laid on the hypothetical imperative and desired results are not achieved, everyone
will be disappointed. Thus, duty orientation is necessary.
11. He defines law on the basis of his categorical imperative. According to him, ‘law is the
aggregate of conditions under which the arbitrary will of one individual may be combined with
that of another under a general inclusive law of freedom.’
12. Aggregate of conditions here means the average conditions in society. Arbitrary will of an
individual means one which can dominate others positively, i.e. leadership. This arbitrary will
needs to be combined with the will of everyone so that it results in general inclusive freedom or so
that the law is applicable to all.
13. A hypothetical imperative on the other hand would mean the arbitrary will not combined with
the will of others.
14. He also makes a distinction between law and morality when he says that law always requires
some force while morality does not. He further assumes that law can imbibe morality within
itself. He describes morality as being a matter of the internal motives of an individual while
legality is a matter of action in conformity with the external standard set by the law. However, it
must be understood that Kant’s entire philosophy is based on the fact as to what the law ought to
be.
15. He talks about acquired and natural rights. Acquired rights require force and are more inclined
towards law. Natural rights on the other hand don’t require force. Infact, he talks about the right to
freedom as the only natural right. He says that such right must not transgress the freedom of
others. He thus had a vision of a ‘kingdom of ends’ wherein the freedom of each person would be
honoured with the freedom of every other person. For this, political power is required.
16. For him, morality can only arise from freedom. He says that as morality and freedom are one
and the same, incase of a law which is in conformity with morality, one can be forced to obey it
without forfeiting one’s freedom. He gave a lot of emphasis to moral law and as per him even
subjection to the will of God is not freedom.
14
17. He also said that as positive law is the only possible public manifestation of moral law, to
oppose it means to oppose the possibility of a community governed by a moral law. Thus, he goes
against resistance to established legal authority.
18. As per him, society unregulated by right results in violence. Social existence and violence are
incompatible and hence there must be compulsory laws. Only then can man be able to live in
peace.
19. Kant thus effectively evolved 2 principles of practical reason-(i) categorical imperative and (ii)
the principle of right (an action is right only if it can co-exist with every man’s free will as per the
universal law)
20. He also advocates separation of powers and says that the sole function of the state is to ensure
the observance of law. He advocated free speech as well.
21. He regards man as being an end in himself and says that he must retire from society if his free
will would involve him in wrongdoing.
22. He also aimed at a universal world state. He saw no possibility of an international law without
an international authority superior to the states.

Stammler-

1. He was a neo-Kantian who talked of natural law with a variable content.

2. He distinguished between technical legal science which concerns a given legal system and
theoretical legal science which consists of rules giving effect to fundamental principles.
3. He thus distinguished between the ‘concept of law’ and the ‘idea of law’. The former deals
mainly with the structure of law and is based on pure reasoning and the latter states what are the
elements of a just law and is based on practical reasoning.
4. He wanted to conceptualise law as universal, logical and valid through time and space and for
the same he said that law must be in its pure form, devoid of any social, religious enquiries, etc. He
thus defined it formally as ‘a species of will, other regarding, self-authoritative and inviolable.’ It is
a species of will as it is concerned with orderings of conduct, other regarding as it concerns man’s
relations with others, self-authoritative as it claims general obedience and inviolable as it is
permanent and cant be violated.
5. He defined law as ‘combining sovereign inviolable volition.’ Here, it refers to the inviolable
volition of the state or such wish of the state which can’t be violated. Combining refers to the
volition of all and sovereign refers to a common power governing the same. Law for him was
clearly volition.
6. To justify this, he came up with 2 principles-(i) the principle of respect and (ii) the principle of
participation.
7. The principle of respect includes 2 principles under it, namely-
(a) No one’s will shall be subject to the arbitrary volition of another.
(b) Any legal demand must be of such a nature that the addressee can be his own neighbour.
This means that when someone legally demands something from another, he must see to it that
such other is capable of fulfilling the demand.
8. The principle of participation includes the following 2 principles, namely-
(a) No member of the legal community must be arbitrarily excluded from the community.
(b) A legal power may be exclusive only in so far as the excluded person can still be his own
neighbour. For e.g., in the case of Saibuddin Saib v. State of Bombay, it was held by the SC that
even if a person could be excluded legitimately from a religious community by the head for
violation of a rule, he may not be excluded from the state. Similar is the case of Zahira Sheikh.
9. An example of these principles may be given of the case of Arnold, the Miller from Prussian
history. The neighbour of the miller wanted to construct fish ponds and used water from the
millstream for the same. The miller objected to the same as it deprived him of enough water for
15
his mill. The court held that the neighbour must be allowed to use water for his pond. Stammler
says that the party excluding the other and the party injured thereby must be imagined as
united in a separate community according to the principle of participation. Each party must be
treated so that he may remain his own neighbour. Therefore, neither of the parties must alone
be the sufferer from the construction of the pond nor must the other party simply refrain from
constructing them. The disadvantage by the construction to the other party must not be out of
proportion to the loss avoided by the party exercising its right of construction. These 2 losses
must be calculated and the combined loss must be divided in proportion to the amount
contributed by each side.
10. He also invokes the principles of respect and participation to show that there is a legal
obligation for a good swimmer to come to the rescue of a drowning man where it is possible
without any particular danger.
11. He then gives his idea law where he tries to define the conditions of a just law.
12. As per him, a just law comprises of the following-
(a) Right exercise of legal relations.- Balfour v. Balfour (FIND OUT FACTS n PRINCIPLE)
(b) Limits of freedom of contracts-This is to be laid down as almost all legal relations are
contractual.
(c) Duties of law- It refers to the objects of every law without which the law would become
arbitrary. For e.g.-directive principles, preamble, Art. 12 (defining state and therefore its
functions, jurisdiction), etc.
(d) Determination of just transactions-A transaction broadly implies any kind of relations
amongst people. For e.g. a criminal law prescribes an offence and hence lays down what is an
unjust transaction.
(e) Justified termination of legal relations-as in case of just grounds to be given for termination
of marriage, termination of contract by death, impossibility, etc. Another example may be given
of the creation and winding up of companies on just grounds. Also, incase of SEZ s, there is a
provision for their creation but no provision as such for their denotification or just termination.

13. In his ‘theory of justice’, he concludes by saying that-

(a) Just law is the highest universal point in every study of social life of men.
(b) It is the only thing that makes it possible to conceive by means of an absolutely valid method,
of social existence as a unitary whole.
(c) It shows the way to a union with all other endeavours of a fundamental character which aim at
right consciousness.

14. He thus talks of a special universal community (Sondergemeinschaft), in which each individual
is taken as the centre of a circle, the circumference of which comprises his legal relations with
others. These circles cut into each other at certain points and each individual invests his own
volition in it. The adjustments are made with the help of right law.
15. Apart from the concept and idea of law, he also considers a 3rd factor of the validity of law
which introduces a factual element into the pure theory of law. Stammler admits that critical
investigation needs a psychological supplement.
16. He is similar to Kant due to the fact that he maintained that human beings possess certain a
priori forms of apprehending the idea of law. The difference comes in due to the variable content
and the collectivist approach taken rather than the individualistic view taken by Kant.
17. Stammler tried to scientifically define and analyse the law which has been criticized due to its
pure and formal nature. His examples given incase of the miller have also come under much
criticism. (Read Friedmann, pgs 184-186)

16
John Finnis-

1. His theory is a transition from an abstract form of natural law to a materialistic form. He claims
that natural law doesn’t necessitate a belief in morality as comprising observance of naturally
demonstrable principles of behaviour and he denies that natural law requires laws which infringe
such principles to be regarded as invalid.
2. According to him, natural law consists of 2 principles-(i)basic goods and (ii)practical
reasonableness.
3. As per him, there are certain basic goods which are common to and inherent in all human
beings and hence these must be taken care of. These basic goods include the following-
(a) Life- This primarily means the right to self preservation and includes ‘every aspect of vitality
which puts a human being in good shape for self-determination. E.g. Art. 21 has been
interpreted to include several ancillary rights to the right to life.
(b) Knowledge- He was inspired by Aquinas and said that this is what distinguishes human
beings from other animals. This corresponds to the basic drive of curiosity which leads us to
reject ignorance, superstition, etc. These are protected in the form of IPR, RTI, DPSP s, etc.
(c) Play- These are all activities which human beings would like to perform. He regards them as
duties. E.g. right to profession.
(d) Aesthetic Experience- This relates to the appreciation of beauty. For e.g.-protection of
monuments, MC Mehta case wrt protection of the Taj Mahal, etc.
(e) Sociability- This is primarily because everyone would want to be in contact with each other.
E.g. provision for clubs, associations, etc.
(f) Religion- It has been regarded as a way of life and is very closely connected with society as
such. For e.g. right to religion.
(g) Practical Reasonableness-This is the basic good of being able to bring one’s own intelligence
to be able to choose one’s actions and lifestyle and shaping one’s own character.

4. As per Finnis, these basic goods are self-evident.

5. These basic goods are to be protected and balanced by way of principles of practical
reasonableness. These principles are-
(a) Coherent plan of life- It relates to a constitution from a nation’s perspective.
(b) No arbitrary preference amongst basic goods- This means equal attribution to all goods.
(c) Detachment-It doesn’t imply complete detachment. It means performing a task professionally
without any fanaticism.
(d) Commitment- It means giving your best to something and getting detached after the work
gets over.
(e) Limited relevance of consequences- It is almost in lines of a categorical imperative. It implies
that a legal system must be created which caters to the needs of an average person.
(f) Respect for every basic value- It is connected with (b). An example may be given of the
practice of secularism.
(g) Requirement of common goods- This refers to certain things in society which must be
enjoyed in common. Herein comes in the concept of eminent domain. E.g. deletion of right to
property from Part III.
(h) Following one’s own conscience- This is very important and is essential for keeping all goods
intact. E.g. perjury, intent behind law, principles of justice equity and good conscience, judicial
review as regards 9th schedule, judicial creativity as regards Art.21, women and children’s rights,
difficult to amend certain parts of constitution due to existence of a national conscience.

17
6. Finnis states that the seven basic goods remain constant throughout the world however tenets
of practical reasonableness may be modified. If the basic goods are modified, then it will go
against the principles of natural law.
7. Nevertheless he favoured law in its posited form as well.
8. Recently, Finnis has identified additionally the ‘first moral principle’. This principle commands
persons to choose and otherwise will those possibilities whose willing is compatible with integral
human fulfillment. Thus, the principle of integral human fulfillment is a standard to guide choices.
9. He then talks of ‘modes of responsibility’ which are derived from this first principle of morality.
These identify the incentives to choose incompatibly with a will to integral human fulfillment and
direct the chooser not to act on those incentives. It is required the first principle of morality is too
general to allow for specification of moral norms. These modes are intermediate moral principles
which are not self evident unlike the first principle of morality.
10. According to him, basic goods must be seen with respect to the community and a legal system
is required for the common good.
11. Infact, a legal system can also work against the common good. However, he also says that even
if such laws are made, such laws would lack the required authority. Infact, prima facie one should
obey such laws which cater to the common good but if the common good is impaired,
disobedience on certain grounds such as conscience is allowed.
12. He links practical reasonableness with law on the basis of justice. He says the objective of
distributive justice is common good.
13. As per him, distribution in society is as per need, function (role in society) and capacity
(opportunities of individual advancement).
14. He favours private enterprise and property as they are a requirement of justice. Also, resources
are more productively utilized by private enterprise.
15. To him, human rights are an important aspect of the common good but these are limited by
other rights and aspects related to the common good like public health, public morals, etc.
16. He however does believe in certain absolute human rights as well. For e.g. right not to be
positively lied to in any situation, right not to be condemned on knowingly false charges, right not
to be deprived of pro-creative capacity, etc.
17. He believes that natural law theory need not stipulate God.
18. He said that the moral authority of law depends on its justice or its ability to secure justice.
Justice concerns relations with others. It is owed as a duty to others and involves equality in the
sense of proportionality.
19. Thus, law depends on coordination of all basic goods and practical reasonableness in a manner
which helps in the achievement of the common good.
20. Law as per Finnis, introduces predictability through a framework of rules, it allows individuals
to create and modify rules and provides for future regulation by preventing any gaps in the law
which are determined by past rule creation.

Lon Fuller-

1. He rejected Christian doctrines of natural law and 17 th-18th century doctrines of natural rights.
What he shares in common with all natural law philosophers is that he wishes to discover those
principles of social order which will enable men to attain a satisfactory life in common.
2. To Fuller, the most important tenet of natural law is the role of reason in ordering of law.
3. He talks of means and ends and said that they move in circles of interaction and ends can’t be
judged without consideration of means.

18
4. He said that ‘keep man’s purpose-forming processes healthy’ and ‘keep the channel of
communication between men open’. He believed in the objective determination of right orderings
of human conduct within limitations.
5. He believed that processes were governed by objectively determinable laws and these laws
were natural in the sense that they represent compulsions necessarily contained in certain ways
organizing men’s relationships with each other.
6. Fuller said that the legal system is a purposive human enterprise subjecting human conduct to
the governance of rules. But, according to him, a legal system had other purposes as well.
However, he gives more importance to procedural purposes and laws.
7. He elaborates his theory by way of examples such as the case of 5 men in a motor boat in the
Pacific, each having a different skill and working on the same job in no hierarchy and no form of
organisation, based only on the principle of human need. He thus reduced human nature to
merely necessities of the situation.
8. He then gives the example of the Speluncean explorer’s case where 4 people were trapped in a
mine without food, water, etc. for nearly 32 days and this compelled them to kill and eat one of
their team members. (Similar to R v. Dudley and Stephens-check case name and facts) They were
put to trial and held guilty as they had been assured of rescue operations on the 30 th day earlier.
They decided to kill on the 23 rd day and hence it was not acceptable due to the principle of
morality. If they would have killed on the 30 th day if there were still no rescue operations, it would
have been justified. Here Fuller brings in his concept of internal morality which according to him
cannot be deviated from incase of any law.
9. He says that morality may be categorised as external and internal. External morality refers to
rules of governance while internal morality is the morality of aspirations. External morality may
be altered to adjust with internal morality but internal morality cannot be altered. Judges cannot
go against the basic internal morality. Based on external morality, a substantive natural law may
be developed and based on the internal morality of law, a procedural version of natural law may
be obtained. (Confusion-Read Dias)
10. He also gives an example of Rex, the King who time and again made faulty laws and based on
this he gives his components of internal morality as-
(a) generality- Laws to be general and not specific. E.g. In criminal law, the accused is generalized
as ‘any person’, etc.
(b) prospectivity- Laws to be applied prospectively and not retrospectively. Generally, procedural
law is applied retrospectively. Golak Nath’s case gave the concept of prospective overruling
whereby precedent declared couldn’t be applied retrospectively. (Check case)
(c) promulgation- For laws to be effective, they need to be made known to all. In India, the same
is done with the help of the official gazette.
(d) intelligibility- This means that laws must not be ambiguous and must be intelligible or
understandable. Incase some laws are overlapping, the problem may be solved by
interpretation.
(e) Unself-contradictness- This means that laws must not be self-contradictory. In India, this
problem is resolved by interpretation.
(f) Possibility of obedience- Laws must be logical so that they may be obeyed by people. For e.g.
Pune Municipal Commissioner imposed a rule banning the wearing of scarves but the same
couldn’t be implemented. Also, the re-postal bill which asked for intercepting national mails was
rejected.
(g) Constancy through time- This ensures validity of a law and is one of the components of a
valid custom.
(h) Congruence between official action and declared rules- This is the most important and
implies that there must be proper enforcement of laws.

19
11. But, Fuller has been criticized on several grounds especially by HLA Hart (leading to the Hart-
Fuller debate).
12. Fuller is ambivalent as to a situation wherein a legal system fails to comply with any one of the
components of internal morality. He said that such laws would not result in a bad system of law
but lead to something which cannot be properly called a legal system.
13. He does not give a finite definition of law and for him the existence of a legal system is a
matter of degree.
14. Also, there is confusion whether the internal morality of procedural law is a means or an end in
itself.
15. An example has been given of the Nazi system of governance which follows all the principles of
Fuller’s internal morality with the exception of probably just one and still managed to promulgate
such laws which are contrary to basic principles of human morality.
16. Thus, Fuller does believe in the connection between law and morality but fails to establish it.
HLA Hart-

1. He is essentially a positivist but came up with his theory of natural law by criticizing
Fuller. He said that internal morality may not on its own lead to a moral law and sometimes an
authoritarian regime is required as well. Fuller on the other hand contends that authoritarian
regimes may combine evil principles with the tenets of internal morality but such a regime cannot
continue for a very long time.
2. Hart points out that there are certain substantive rules which are essential if human beings are
to live together in proximity.
3. He places a lot of importance on ‘survival’ as a prime human goal.
4. Hence, as per him, there are certain rules which any social organisation must contain which are
based upon human nature and help in forming the ‘minimum content of natural law’.
5. He doesn’t as such state the actual minimum universal rules but gives certain facts of human
condition which must lead to the existence of such rules. These conditions are-
(a) Human vulnerability- This relates to the fact that human beings are vulnerable to many things
especially natural disabilities. A way to overcome the same is by providing for reservations for
women and children, backward classes, physically and mentally handicapped people, etc.
(b) Approximate equality- It is true that equality exists amongst human beings as such but this is
only approximate. There is inequality with respect to many things and law must take care of the
same. For e.g. Art. 14 of the Constitution.
(c) Limited Altruism- Altruism refers to selflessness. As such, human beings have very limited
altruism and are generally selfish. This must be minimized with the help of law as in the case of
distributive justice provided by Art. 16 in India.
(d) Limited Resources- All resources whether social or economic or otherwise are limited and need
protection so that there is no inequitable distribution. Herein comes the concept of eminent
domain because of which the right to property is not a fundamental right anymore.
(e) Limited understanding and strength of will- This implies that human beings have only limited
understanding of a situation. It refers to putting oneself in someone else’s shoes.

6. He argues that in the light of these inevitable features of human condition, there follows a
natural necessity for certain minimum forms of protection for persons, property and promises. But,
Hart doesn’t wish to establish any link between legality and morality at the same time. He just talks
of achievement of minimal justice within a community.
7. He merely attempts to establish a kind of sociological foundation for minimum content of
natural law. It is natural law as regard is paid to fundamental human nature as indicated in his 5
conditions.

20
8. But, it is difficult to see how any real minimum content based on these principles may be
formulated. As regards human vulnerability, it has not been protected effectively in most modern
societies and infact life has been made increasingly hazardous through various modern
advancements. Does vulnerability require law to discontinue such activities or only to provide
suitable compensation when injuries are sustained?
9. Although Hart uses the condition of approximate equality, he himself acknowledges the fact that
no universal principle of natural law can be based upon the principle of impartiality. The idea of
equality or non-discrimination is essentially a value judgment which cannot be derived from any
assertions or speculations regarding the nature of man.

3.2 Positivism- John Austin, Kelsen, Bentham, Hart

Positivism: in general-

1. Positivists talked of law as being in a posited form and emphasized upon the form and structure
of law. They also talked of laws as being commands. Unlike natural law theorists, they regarded
morality only as being secondary and worked towards legal reforms by reforms in the structure of
law.
2. They criticized natural law philosophers who construct the world from a priori concepts and
ideas. According to them, matter was prior to ideas.
3. They tried to differentiate between ‘ought’ and ‘is’ which is infact the foundation of the natural
law and positive law debate.
4. Most positivists agree that only those ‘ought’ principles comprise law which are filtered through
certain accepted criteria of validity.
5. They do not completely discard the concept of morality and accept the fact that judges make
laws which are influenced by ethical considerations. However, it is only incorporation in the form of
legislation, precedent or custom which imparts the quality of law and provides the stamp of
validity. Infact, it has been conceded that even an unjust proposition if incorporated in a statute
would amount to law. Natural law theorists on the other hand contend that an immoral rule
cannot be law not matter to what extent it satisfies formal requirements.
6. Positivists also try to distinguish between formal analysis on one hand and historical analysis on
the other. This poses a difficulty as it is nearly impossible to study law and legal institutions without
having regard to their history or function. Another problem is the division between analytical and
functional study. If legal concepts are to be analysed, it inevitably brings us to the function of law.
This in turn brings us to the question as to what law ought to be. Now, where is the difference
between formal and functional study?
7. Another example of such a close connection between ought and is may be given of judicial
decisions. While giving a decision, judge states something to be a rule which appeals to his sense
of right or wrong. However, many positivists argue that it is the job of the courts merely to declare
the law and not interpret it.
8. A total separation of ought and is cannot be maintained also for the reason that the principles
and doctrines on which laws are based are regarded as what ‘is’ while they actually prescribe what
law ‘ought to be’.
9. In the long run however a separation is not possible and the validity of a law throughout time
depends on conformity with morality. Even positivists agree that a total separation is neither
possible nor desirable. However, it is the validity of law which may be tested based on the fact as
to whether it is in some posited form or not. But, the criteria of validity cannot be purely formal as
well and there is a requirement of certain minimum moral criterion. Thus, essentially there may be
a separation in criteria of identification as regards possibility of separation is consideration.

21
10. As regards desirability, positivists say that convenience is the prime reason for separation. The
introduction of morality into the criterion of identification presents difficulties as morality is a
diffuse idea and not even a naturalist maintains that everything which is moral is law. Also,
establishing the validity of a precept by means of a formal test and a moral test involve different
processes. Courts have neither the time nor the training to undertake the same. Finally, a
separation between ‘ought’ and ‘is’ are useful in providing a standard by which positive law can be
evaluated and criticized.

John Austin-

1. As a positivist, he talked of what law actually is than what it ought to be.

2. He talked of legal sovereignty.
3. Law is a command of the sovereign.
4. He regarded the sovereign as being a determinate human superior which is practically not
possible considering the constant change in governments.
5. He said that the sovereign can’t bind himself and is hence above the law. This is erroneous as
this would empower the sovereign to change the law.
6. He regarded the sovereign as being indivisible and illimitable. This is proved wrong by
federations like US where sovereignty is divided and also a sovereign can’t be illimitable as the
constitution of every country prescribes certain rules to exercise a check on the sovereign.
7. A sovereign is one who is habitually obeyed by everyone. This test of habitual obedience also
fails in case of a revolution or military coup.
8. He doesn’t distinguish between the defacto (one who has power to enforce obedience) and
dejure (one who has the authority to make law) sovereign.
9. He also talked of Parliamentary sovereignty which is not all true as the Parliament has
transferred some of its powers to other organs. This is derived from the system of checks and
balances.
10. He said law must not be based on law but should be based on the fact of habitual obedience of
the mass of population. He thus never imagined that the body of electors was infact the defacto
power and was not always subject to the force of the ones directing them.
11. He talks of a complete separation between law and morality.
12. He believed sanction to be a mark of law.
13. Sovereign able to secure obedience more than any other social or moral rules.
14. He regards laws as those set by superiors to inferiors. This includes laws from God to men or
God-made/natural law or laws from men to men.
15. Man made laws include positive law (laws strictly so called) and laws set by men not as political
superiors (not in pursuance of legal rights).
16. Man made laws and God made laws are laws properly so called.
17. There are certain laws which may be by analogy or by metaphor and are called laws improperly
so called. Laws improperly so called are only opinions held by men as regards human conduct and
do not as such fall under the realm of ‘law’.
18. The laws set by men not as political superiors and the laws by analogy together form
something called positive morality. The term positive morality has been used to distinguish it from
morality which is essentially within the realm of God made laws and to show that it is made by
humans.

19. Laws properly so called especially those from men to men as political superiors form the
province of jurisprudence without regard to their goodness or badness while positive morality is
the subject matter of a science closely related to jurisprudence.

22
20. These laws are a species of commands. A command refers to signification of a desire backed
by a sanction.
21. Command and duty are correlative as when there exists a command, there also exists a duty to
obey it.
22. Positive moral rules which are laws properly so called are rules set by men to men and they are
not set by men as political superiors or as private individuals to each other in pursuance of legal
rights. These may be of 3 types- (a) those set by men living in a state of nature, (b) those set by
sovereigns, but not by sovereigns as political superiors (e.g. imperative rules set by one supreme
govt. on another) and (c) those set by men to men not in pursuance of legal rights. (From
parents to children)

23. Positive moral rules which are laws improperly so called refer to laws imposed by general
opinion. International law is also a part of this as it is the law imposed upon nations by virtue of
their opinions.
24. There is a frequent coincidence between positive law and morality and positive law and God-
made law. There is often confusion between them. For example, as regards custom, it is essentially
positive morality unless it is validated by judicial decisions and finally by legislation and hereafter it
becomes both positive law and positive morality. But, often it is confused with positive law as it
used to be obeyed even before legislative sanction.
25. A sovereign is a certain person or a group of persons to whom the bulk of a given society is in
the habit of obedience. There is no other individual or body to whose express or tacit commands,
this certain person/group of persons renders habitual obedience. However, laws improperly so
called or opinions may permanently affect the conduct of such certain individual or body.
26. There exists a relationship of sovereignty and subjection between the political superior and
those who habitually obey him. The subjects are in a state of dependency and subjection to the
superior.
27. The society alongwith the sovereign is a society political and independent. (bring in example
of UK not being subject to anything else) Elements of such society are-
(a)The obedience must not be rare and transient but must be permanent and habitual.
(b) Obedience to a common superior.
(c) The common superior must be determinate.
(d) The common superior must not render habitual obedience to another body of persons though
occasional submission is accepted.
28. This distinguishes such society from a state of nature.
29. International law is concerned with independent political societies in intercourse with one
another. However, the sovereignty is distinct. Thus, international law regards the conduct of
sovereigns considered as related to each other. Thus, such law is not positive law.
30. Power of sovereign is not limited by legal duty as then the concept of sovereignty as not in
habitual obedience of someone or something else will be contradicted.
31. He regards constitutional law as positive morality or positive morality and positive law which
are applied to the conduct of the sovereign.

Refer to diagram1 for better understanding of laws properly so called and laws improperly so
called.

Hans Kelsen-

1. He was a neo-Kantian in the sense that according to him the objective world is changed by
certain formal categories applied to it by the mind of a person. Further, Kelsen also talks of monism
or a single world of law and distinguishes between ‘is’ and ‘ought’.
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2. Kelsen rejects legal positivism as it confuses law with fact and he rejects the natural law theory
as it confuses law with morality. He alongwith his followers formed the Vienna school.
3. According to him, law consists of norms which are derivatives of other norms. A natural science
according to him is concerned with causal relationships while a normative science like law, ethics,
etc. is concerned with conduct which ought to take place based on norms.
4. Kelsen believes that a normative proposition, whether legal or otherwise consists of a valid
norm. This is erroneous as this would reduce legal propositions to be moral statements and distort
his pure science of law. Infact, the uncontrollable will of a despot shall also be valid and be legally
qualified as the state’s act if it is deduced from a superior norm.
5. Kelsen talks of a pure science of law which is not a theory of pure law and he doesn’t talk about
the existence of a pure norm.
6. The pure theory involves basic forms under which meanings can be known scientifically as legal
norms which will have a content which can be morally evaluated. The norm however has to be
seen regardless of its content and of such questions as to why it is or is not obeyed.
7. Kelsen emphasizes on the non-adulteration of law with other closely connected disciplines and
the study of law as a pure science.
8. A norm is an ought proposition and its existence implies its validity. It forms a part of a system
of norms and is derivable from other norms.
9. Since norms are concerned with human conduct, there has to be the highest norm on which
every other norm depends and this is the grundnorm.
10. This basic norm must be extra-legal as its existence does not depend upon another legal norm.
It has to be chosen by the legal scientist based on its efficacy or the fact that people do conduct
themselves in conformity with it.
11. This basic norm is non-positive and hence not concerned with the legal science but it is really
purely formal in giving unity to the legal system and marking the limits of legal norms.
12. This basic norm may be also be studied with respect to international law. If the basic norm
were to be the constitution o f every nation, it would result in a plural world order while if it were
taken as being international law, there would be a monistic world order from where each national
law would be derived. He tries to draw an analogy between international law and the law of
primitive societies as will be seen later. According to him, war and reprisal form sanctions of
international law.
13. Kelsen rejects all metaphysical entities like the state, rights, duties, etc. He considers the term
‘legal order’ as being wider than the state and including primitive societies and present
international order. Again rights and duties are not entities existing in themselves but merely the
expression of legal norms.
14. He described the legal process as a hierarchy of norms where the lower norms derive authority
from the higher ones. At each level there is movement from generality to individualization.
15. However, he says that a higher norm can determine the content of another norm only to a
certain extent and so far as there is a choice as to whether the higher norm shall determine and
create the lower norm or not, such activity partakes a political and not a legal character.
16. Kelsen acknowledged the fact that sociology of law and normative jurisprudence exist side by
side but he makes a differentiation between a legal scientist and a law making authority like a
judge. The former can only describe and not prescribe. The legal scientist must accept any decision
as valid as it is beyond his competence to say whether it is within the framework of the general
norm in question. It is upto the law making authority to make a choice as to try and influence his
authority is to take up political and not legal function.
17. As per him, every system of norms exists on some sort of sanction. He states that there has
never been a society which is not based on some sort of coercive order and this includes primitive
or international societies which only lack the organs of law creating and law applying.
18. According to Kelsen, for a norm to be legal, it must be backed by sanction.
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19. He treats the breach of any legal norm as a delict. For him, to be obligated to certain behaviour
means that the contrary behaviour is a delict. However, no conduct can amount to delict unless
backed by sanction.
20. This has been criticized on the ground that absence of sanction may make a law ineffective but
certainly not invalid. Emphasis on sanction also undermines the importance of duties. But, Kelsen
contends that this is what distinguishes legal norms from social norms. However, it has been
pointed out that even if sanctions are essential to law, it is the legality of legal sanctions and not
their coercive nature which is the essence of law. (Criticism)
21. Thus, it follows that as per Kelsen, laws must not impose duties on the subjects but should lay
down what judges and officials are expected to do incase of a delict. This norm which provides a
directive to the judge is the primary norm while the secondary norm is one which provides as to
what conduct the legal order wishes to bring about by way of the sanction.
22. A further criticism of this view is that it blurs the difference between not just civil and criminal
law but also between penal and administrative coercion. He tries to exclude acts such as
compulsory evacuation of buildings threatened by fire, enforced isolation of a person suffering
from a contagious disease, etc. on the ground that in these cases it is circumstances other than
human which lead to application of coercion, whereas coercion must always be a consequence of
human conduct. (Criticism)
23. The essential foundations of Kelsen’s theory are as follows- (Read Friedmann)
(a) The aim of any theory of law as that of science is to reduce chaos and multiplicity to unity.
(b) Legal theory is science and not volition. It is knowledge of what law is and not what it ought
to be.
(c) The law is a normative and not a natural science.
(d) Legal theory as a theory of norms is not concerned with the effectiveness of norms.
(e) A theory of law is formal, a way of ordering changing contents in a specific way.
(f) The relation of legal theory to a particular system of positive law is that of possible to actual
law.

24. Also the pure theory has been criticized on the ground that can it take note of a revolutionary
change which establishes a new grundnorm in defiance of the previous one.
25. The Vienna school rejects any dualism. It doesn’t subordinate the law to the state and vice
versa.
26. It says that the difference between artificial and natural personality is irrelevant, as all legal
personalities are artificial and derive their validity from superior norms.
27. Kelsen and the Vienna school also attacked the division between public and private law. The
traditional rule states that obligations in public law arise from unilateral command while
obligations under private law are based on mutual agreement. In public law, the order may be
enforced even by the organs passing such order while under private law, sanction is provided by
the state. The Vienna school objects to this by saying that the will of parties is only the condition
which the legal order stipulates for giving sanctions. It is not a legal obligation itself. Also,
administrative organs which create legal relations must appeal to a higher state organ for legal
sanction.
28. Further, the judge has a choice between different interpretations of the higher norm, but
Kelsen refuses to give any indication as to how this choice must be exercised.

25
Jeremy Bentham-

1. He was against natural law and social contract.

2. Tried to analyse human action on the basis of the principles of pain and pleasure which could be
assigned quantitative values and be measured by the calculus of felicity.
3. Social and Legal Reformer. He believed in real and fictional entities. Law is fictional.
He tries to distinguish between a law and law, the latter meaning the legal system which is real and
the former which is fictional and needs to be codified.
4. Championed the concept of individualism but ended up propagating the concept of a welfare
state.
5. Distinguished between Expositorial Jurisprudence and Censorial Jurisprudence. Expositorial
Jurisprudence was concerned with law as it is without any regard to its moral character. Censorial
Jurisprudence on the other hand was regarded by him as the science of legislation which consisted
of a branch of morals, a set of principles upon which men’s actions were to be based so that the
greatest happiness of the greatest number may be achieved. This was to be distinguished from
private morals.
6. Bentham believed that substantive law cant be reformed without reforming its form and
structure. Thus, a thorough scientific framework for laws was required. He thus felt that all laws no
matter where in the world they apply could be scientifically codified and put down.
7. Bentham also talks of command and sovereign like Austin but differs with him on certain
aspects.
8. He propagated the principle of utility as one which approves or disapproves of every action
according to the fact as to whether it augments or diminishes one’s happiness. Utility is the
property in any object whereby it tends to produce an advantage, benefit, etc. or prevents the
happening of mischief, pain, etc. to the party in question. The interest of the community is taken as
the sum total of the interests of the members who compose it. The measure of a govt. is thus to be
considered in a similar manner. The happiness of the community must be the sole end which the
legislator must aim at.
9. There are 4 sanctions of law- physical, political, moral and religious. Pleasures and pains are
expected to issue from these sanctions.
10. Physical sanction is one which emanates from the ordinary course of nature and is not
modified by the interposition of the will of another man or an invisible superior.
11. Political sanction is one which emanates from a person or a group of persons who are chosen
to dispensing it at the will of the sovereign or the supreme power within the state.
12. Moral or popular sanction is one which emanates from such person(s) in the community which
one may have concerns with and which is not under any definite rule.
13. Religious sanction owes its origin to an invisible superior.
14. Definition of law. (Read notes)
15. A law under this definition may be considered under 8 different aspects.
16. In respect of its source, it implies the person(s) whose will it is the expression.
17. In respect to the quality of its subjects, it relates to the persons or things it may apply to. These
subjects may be agible(active-human beings) or passible (passive-goods).
18. In respect to its objects, it pertains to the acts/circumstances to which it may apply.
19. As regards its extent, it means the generality or amplitude of its application which means the
determinateness of the persons whose conduct it may seek to regulate. It also pertains to the
geographical area, time frame, subject matter, etc.
20. As regards its aspects, it pertains to the manner it which it may apply to the
acts/circumstances. Describes it in the form of a diagram. (see diagram2)

26
21. In respect to force, it means the motives it relies on to produce the effect it aims at and the
laws (corroborative appendages) which it relies on to bring these motives into play. This relates to
sanctions and incentives.
22. In respect to its expression, it means the signs by which the will whereof may be known. This
mainly relates to the completeness of the law which rules out any possibility of judicial
interpretation. He says indivisibility of the law comes by integrality and unity. Integrality relates to
the completeness of the law and wrt unity he says that when 2 offences arise out of a single act
situation (e.g. defamation is both a crime and a tort), these must be combined in a single offence.
23. As regards the remedial appendages, it means the other laws which may occasionally be
subjoined to the principal law. This is mainly related to the Redressal mechanism or more
specifically a form of delegated legislation.
24. Under this definition, even a judicial, administrative, military or any other kind of order may be
included.
25. The source of law is the will of the sovereign to which a whole political community is supposed
to pay obedience in preference to the will of another person. Suppose the will in question is not of
the sovereign and is backed by motives of a coercive nature, then it is not law but an illegal
mandate which if issued is an offence.
26. Another important facet is the object of the law. If the law issued by the sovereign is
considered with respect to such person to whom it is not applicable and the concerned person
doesn’t obey the law, then it is no offence or an offence which is not punishable. Also, such
sovereign commits no offence in passing such law.
27. The will of a person may be expressed in 2 ways- by conception and by adoption. Conception is
when the sovereign is the first person to issue such will or mandate. Adoption is when a person
other than the sovereign first issued the mandate.
28. Adoption-
 By time- When the mandate has been issued before adoption by the sovereign it is called
susception else it is called pre-adoption. When the sovereign holds himself in all readiness
to have adopted the mandates of a person, he may be said to have conferred upon such
person the power of imperation.
 As per persons- As regards persons, both by susception and pre-adoption, he may adopt
the mandates of the former sovereigns and subordinate power holders. It is not possible
for him to adopt mandates of future sovereigns as whatever force rests in the sovereign
rests in him while he is living. As regards the subordinate power holders, these include all
such persons to whom the sovereign gives the power of imperation and de-imperation
(undoing what has already been done). Such power may be given to the power holder on
his on account or on account of someone else(fiduciary) say on behalf of an individual or
the entire community as in the case of constitutional power. Every mandate issued within
the limits of sovereignty and which is not illegal, is in one sense or the other the mandate
of the sovereign. Ultimately, the business of enforcing them is on the sovereign. Infact, pre-
adoption may be compared with delegated legislation.
 Degree- This involves the sovereign giving permission to the subordinate authority. If the
sovereign wouldn’t agree for the same, he would not make the subject into a law. Another
way of commanding the subordinate may be by way of another set of laws permitting the
subordinate to administer punishment on the person concerned.
 Form of Expression

29. He also distinguishes between laws in subditos or in populum and laws in principem. The
former are those set of laws which apply to the public at large while the latter apply to the
sovereign himself. These transcendent class of laws are to direct the sovereign what he shall do,

27
what mandates he may or may not address to them and in general how he may conduct himself
towards them. This brings in the concept of judicial review.
30. The laws in principem may be of 2 sorts- depending on the party from where they emanate
and the party whose conduct they are designed to influence. The latter may consist of the
sovereign himself or his successors. They are strictly termed as covenants and pacts and in order to
distinguish them from ordinary pacts, these are called pacta regalia or royal covenants. The
sovereign expresses his will in order to regulate the conduct of his successors, he does so by what
is called a recommendatory mandate.
31. The intention behind passing the covenant by the predecessor becomes a reason to justify
adoption by the successors. Thus, the successors are to abide by the mandates of their
predecessor unless in case of any change in circumstances which makes it necessary to not obey
the same. Herein lies the concept of precedent.
32. Motives are the forces by which human will is influenced. The sources from which they issue
are called sanctions. Such sanctions may be physical (not applicable), political, moral and religious.
Moral sanction may be exerted by the people or also by the international community. But, the
political sanction still remains the most powerful.
33. Force of law refers to the motives it relies upon for enabling it to produce the desired effects.
The motives connected with pleasure are called alluring motives and when connected with an act,
a reward is given. Motives related with pain are coercive motives which when held up wrt an act
lead to punishment.
34. The punishment or reward to be given must be announced so that the people to whom it
pertains expect it. This may be given as a part of the law by the legislator or as customary law by
the judges.
35. The most common way of doing the same is by inserting a clause alongwith the clause which
depicts the will of the legislator, showing the motive which he gives you for compliance with such
will. The part which deals with the will of the legislator is called the directive and the other, the
sanctional or incitative.
36. When the motive furnished is in the form of a punishment, the incitative part is called the
comminative part or by commination and the one in the form of a reward is the invitative part or
invitation.
37. The law may at times also provide a sanction of the praemiary kind where both kinds of
sanctions (punishment and reward) are provided. This is called law with an alternative sanction.
38. He also talks of primary and subsidiary laws. The primary law is the main law which expresses
the will of the legislator and declares a sanction. However, other laws are required to execute the
same, i.e. the ones concerning directives to judges, witnesses, bailiffs, etc. and these are called
subsidiary laws.
39. When the judge wishes to punish someone, he uses the punitive or punitory subsidiary law
which may be remote/ proximate. The proximate subsidiary law wrt praemiary laws is called
remunerative.
40. Every law of an exceptive kind contains an exception which is negative/ prohibitive or
permissive/ revocative.
41. A body of laws in order to be complete must include all possible conveyances at any period of
time within the force of the state. This of course does not include laws issued by parents to
children, from other domestic power holders, etc.
42. A law may be framed in a condition form or be converted to an unconditional expression with
many exceptions attached to it. For e.g. conditional-wrongful occupation of property, where the
term ‘wrongful’ adds a conditional value to the offence. Unconditional- Let no man perform any
act of occupation. Exceptions- except when he has a title over such property, etc.
43. Law in order to be complete must seem complete to those it concerns. There must be a
complete code of laws which defines and describes every possible offence.
28
44. Differences with Austin-

a) Austin talked of the sovereign as being an illimitable, indivisible entity. Bentham on the
other hand accepted the concept of divided and partial sovereignty.
b) Bentham thus tried to place limitations on the sovereign. He said that the business of the
ordinary class of laws was to place limitations on the people while the business of a
transcendent class of laws was to prescribe to the sovereign what he shall do.
c) Bentham also talks about the laws made by the sovereign as being binding on his
successors.
d) Bentham thus talked of the concept of judicial review.
e) Sanction played a more important role in Austin’s theory. Bentham said that law may be
even be backed by moral or religious sanctions.
f) He also accepts the concept of rewards (alluring motives) alongwith punishment.
g) A similarity in the definition of law of Bentham and Austin is that both are framed in
terms of inferiority and superiority.
h) But, Austin’s definition pertains more to criminal law while Bentham undertakes rational
reconstruction.
i) Bentham decided to fix the meaning of terms and included within his definition of law as
an expression of volition, not only general laws made by the legislature but also judicial,
administrative and domestic (declaratory) orders.
j) According to Bentham, power of legislation must be broken into different spheres. The
general power of legislation stays with the sovereign but these laws may again confer
mandates on individuals to legislate concerning individual persons or things such as
appointment of judges, alienation of property, etc. But, he brings this theory of
imperation under the concept that all laws are the commands of the sovereign. If the
sovereign adopts or grants permission to issue something, it will not remain an illegal
mandate.
k) Bentham regarded command as being only one of the four aspects which the legislator’s
will may bear to the acts concerning which he is legislating. Bentham used his deontic
logic to demonstrate the necessary relations of opposition and commitancy between the
four aspects. This has been shown in diagram2. (Refer to Dias for explanation)
l) According to Bentham, all laws command or prohibit or permit something. But, generally
the imperative character of law is concealed as the law is either expressed descriptively
or is often hidden in many sentences, pages, etc.
m) Also, Bentham regarded civil laws (those which do not impose any impose any
obligations or impose any sanctions) as not being complete laws but only parts of laws.
n) Although, Bentham was against the concept of natural law, his analysis left scope for
values like liberty, equality, property and most importantly security.

45. Comparison of Bentham’s definition of law to a statute- (Check)

(a) Source of law- seal of sovereign on the bare act.
(b) Subject- mention of anything/persons which the law applies to.
(c) Object- Title and object clause.
(d) Extent- territorial limitation
(e) Aspects- body of the legislation
(f) Force of law-punishments provided
(g) Remedial appendages- procedural law or powers given to proper authority to enforce law.
(h) Expression- will of law maker to be clearly laid down in act.

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HLA Hart-

1. Hart was a fierce critic of Austin who he said based theory on definition. He believed that it
would be better to elaborate upon conditions to which true statements are made in legal contexts.
2. For Hart, the legal system is a system of social rules. They are social in 2 senses, namely-they
regulate the conduct of those in society and they are derived from social practices. There are not
just social rules but others like moral rules as well.
3. Like rules of morality, laws also impose obligations. But, contrary to morality, these rules include
what may be called as primary and secondary rules. Primary rules are duty imposing rules like
those in tort law, criminal law, contract, etc. Secondary rules on the other hand are power
conferring rules such as the power to make contracts, wills, trusts, etc. or such rules which govern
the composition and powers of courts, legislatures and other official bodies.
4. According to Hart, there are 3 kinds of secondary rules- the rule of adjudication, the rule of
change and the rule of recognition. The rule of adjudication confers powers on authorities to pass
judgments in case of alleged wrongs. The rule of change mainly pertains to legislation whereby old
laws are changed and new laws are brought in. This rule also empowers individuals to effect
changes in their legal relationships with each other. Lastly, the rule of recognition is that which
determines the validity of the other rules existent in the system.
5. According to Hart, 2 minimum conditions are necessary and sufficient for the existence of a
legal system, namely-
(a) Those rules which are valid according to the system’s ultimate criteria of validity must be
generally obeyed.
(b) The rules of recognition, of adjudication and of change must be accepted as common public
standards of official behaviour by officials.

6. Hart doesn’t regard primitive society and the international community as a legal system as such.
As regards the primitive society, he says that in such a system, primary rules had developed but not
power conferring secondary rules. As regards international law, there is no adjudicatory body as
such and no method to change rules regarding relationships of states with one another. Further,
there is no rule of recognition.
7. Austin doesn’t regard primitive society or international law as law. But, Hart tries to distinguish
between a set of rules and a system.
8. In a simple society, one has to wait and see whether rules get accepted as rules or not. In a
system with a basic rule of recognition, it may be said that before a rule is made it will be valid if it
conforms to the rule of recognition. Hart detects similarities of content and function between
simpler and complex cases and thus concludes that even primitive law and international law may
somewhat be brought closer to modern municipal law and hence be regarded as ‘law’.
9. He says that as survival is an aim, law and morals must include a specific content.
10. He distinguishes legal and moral principles on the basis of 4 cardinal principles of morality
namely- importance, immunity from deliberate change, voluntary character of moral offences and
the ‘form’ of moral pressure. Hart being a positivist did not believe that law is derived from
morality. However, he does acknowledge the fact that the basis for preferring the positivist theory
is a moral one.
11. According to Hart, law is dependent not only on external social pressures on human beings but
also on the inner point of view that human beings take towards rules conceived as imposing
obligations.
12. Hart introduces the internal aspect of rules to distinguish them from habits (as said by Austin).
He gives an example of stopping one’s car at red traffic lights and playing a car radio while
stationary at the lights. To an outsider, there is little to differentiate between these 2 activities but
30
to an insider, the distinction lies in the different pattern of thoughts involved. Incase of not
stopping at red traffic lights, it amounts to a lapse which makes one susceptible to criticism which
is regarded as right criticism by others and the person himself. This is not the case with respect to
failure in playing a car radio.
13. Hart has tried to distinguish between 2 types of statements-committed and detached, which
express an internal point of view. Committed statements are those made by people who accept
rules while detached statements are made by people saying that they accept rules without actually
committing themselves. However, this may be criticized as a speaker’s belief in the
truth/correctness of a statement doesn’t affect its meaning.
14. As per Hart, habit of obedience cannot explain continuity in law. This is because habits are not
based on norms and thus cannot confer authority on anyone. Also, such habits cannot render
obedience to future legislators or even the present one.
15. Another problem of habitual obedience is that it ignores the importance of precedent by which
even past laws are obeyed.
16. Another problem with Austin which Hart points out is the misconception that sovereignty
cannot be subject to legal limitations. Limits are not presence of duties as per Hart but absence of
legal power. Legislation which infringes such limitations is void.
17. As regards the rule of recognition, Hart states that it may not be expressly stated but can be
shown by the way in which particular rules are identified by courts and other authorities.
18. However, this may be criticized as it is not only external behaviour of courts or otherwise which
shows the validity and existence of rules. Every rule has an internal aspect as well.
19. As per Hart, the rule of recognition is ultimate and hence cannot be valid or invalid.
20. But, there is confusion as regards the nature of such a rule. Being a secondary rule, it must be
power conferring. However, it doesn’t confer power on anyone. Hart suggests that it is a secondary
rule in a weak sense that it is about primary rules. But, as its main purpose is identification, it
would need to be about secondary rules as well.
21. Hart himself suggests that the rule of recognition is infact duty imposing rather than power
conferring.
22. Another problem is as regards whether there is a rule of recognition or rules of recognition.
Hart seems to take both views. Like he gives the example of ‘what the Queen in Parliament enacts
is law’, ignoring important elements like precedent as a force of law, etc. On the other hand, he
describes the rule of recognition as specifying various criteria of validity and ranking them in order
of precedence. Here he uses the same example and says that ‘what the Queen in Parliament
enacts is law’ is supreme but not sole or ultimate.
23. Readdressing the rule in light of criticism by Dworkin, Hart surprisingly states later that the rule
of recognition as a criteria of legal validity may incorporate conformity with moral principles and
substantive values.
24. Hart sees the rule of recognition as a luxury found in advanced social systems rather than a
necessity and thus rejects the idea of Kelsen’s grundnorm as being the essential presupposition in
all legal systems.
25. Further, he states that so long as the laws which are valid by the system’s tests of validity are
obeyed by the bulk of the population, a given legal system exists.
26. Hart says that in every legal system other than a union of rules, there infact exists an open
texture of rules which is a recognition of the fact that all legal rules may not be expected to provide
for every factual situation which may arise. This may be due to 2 handicaps of the legislator-
relative ignorance of fact and relative indeterminacy of aim. Here, Hart says that judges must use
their discretion to fill in these gaps. E.g. ancillary rights provided under Art. 21.
27. Hart states that judges may use moral standards to fill in these gaps but this doesn’t necessarily
mean that these standards were already existent in the rules and the judges only had to find them.

31
28. However, Hart also concedes in the end that it is not just rules but also principles which bind
judges.

3.3 Sociological Approach-

General sociological theories-

It is also known as the functional school and has been divided into 4 categories namely-
(a) Social origin of laws- It was propounded by Ihering. It talks about laws emanating from social
practices and then culminating into the legal system.
(b) Impact of law on society- This was propounded by Ehrlich and it talks about how law changes
society.
(c) Task of the law in society- It was propounded by Bentham and Roscoe Pound. Bentham speaks
of it when he describes laws as social rules and the greatest happiness of greatest number.
(d) Social criterion of validity- This was given by Duguit who talked about laws emanating from
social solidarity. It is mainly with regards to laws accepted by people, groups, etc.

Roscoe Pound-

1. He was a student and the Dean of Harvard Law School. He was mainly from a science
background and hence applied the principles of science to law and evolved his principles of social
engineering. This theory puts the task of an engineer on the lawyer.
2. As per his theory, the task of law is to build an efficient social structure with minimum waste
and less of friction. As per him, law is an ordering of conduct so as to make the goods of existence
and the means of satisfying claims go around as far as possible with the least friction and waste.
3. He stated that defacto claims exist in society and everyone in society has such claims which are
called interests. According to him, law needs to recognize, create and protect these interests.
4. What needs to be protected is dependent on social engineering. These claims are conflicting
and hence need to be balanced by lawyers by social engineering.

5. He broadly categorises interests as follows-

(a) Individual interest.
(b) Public interest.
(c) Social interest.

6. Private or individual interests may further be classified as under-

(i) Interest in personality- It includes protection of physical integrity, freedom of will, reputation,
privacy, freedom of belief and opinion, etc. It thus mainly relates to survival and other ancillary
rights. Thus it would pertain to criminal law, law of contract, defamation, etc.
(ii) Interest in domestic relations- It mainly includes legal protection of marriage, maintenance
and protection of children, etc. It covers problems such as parental right to corporeal
punishment, parents’ control over earnings of children, powers of juvenile courts to supervise
relations between children and parents, etc.
(iii) Interest in substance- This mainly involves interest for oneself. It includes the protection of
property, freedom of succession in testamentary disposition, freedom of industry and contract,
etc. He also includes the right of association in this category which would actually seem to fall
under interest of personality.

7. Public interest relates to interest of the people or society but generally pertains to the interest
of the state. This includes-
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(i) The interest of the state as a juristic person in the maintenance of its personality and
substance. E.g. Arts. 299 and 300 which imposes tortuous and contractual liability on the state.
Art. 12 states what falls within the ambit of the term ‘state’.
(ii) The interest of the state as the guardian of social interest.

8. The social interests are 6 in number and they are-

(i) General security- This includes protection of law and order, of health and security, of security
of transactions, etc.
(ii) Interest in general morals- This involves the protection of society against any moral
disruption like corruption, gambling, blasphemy, etc.
(iii) Conservation of resources- This mainly pertains to the protection of things of common usage
and made available to all because of technology.
(iv) General progress- This mainly involves the development of human powers and human
control over nature for the satisfaction of human wants. This is the vaguest category and as per
Pound comprises major policies like freedom of property, free trade and protection against
monopoly, etc.
(v) Interest in life- This includes not just protection of human life but also of other interests and
freedoms such as the freedom of speech, vocation, etc.
(vi) Interest in social institutions- It regards the protection of institutions like marriage and
family. It also pertains to the protection of economic and political institutions (free speech to be
limited when safety of state is concerned).

9. These interests are arranged in the form of an inverted pyramid, wherein the individual interest
is at the bottommost peak and above it is public interest. At the highest level is the social interest.
This provides for the solution of conflicting interests.
10. But, what about conflicts between individual and individual interest, public and public interest
and social and social interest? For this, Roscoe Pound gives certain jural postulates. These are
assumptions for his theory to stand good. Infact, every society has certain basic jural postulates
which may conflict. But, the success of any society depends on the degree to which it is socially
integrated based on the common ground of these postulates.
11. These jural postulates are as follows-
(i) Every individual must behave within the given boundaries (constitutional law) and men must
be able to assume that no one would conduct intentional aggressions upon them.
(ii) Whenever a particular person has created something innovative with his own labour, he must
be allowed to enjoy the benefit of the same. (IPR, property rights, etc.)
(iii) During all social intercourses, men will act in good faith and thus-
(a) Will make good reasonable expectations which their promises or other conduct reasonably
create. (Performance of contract)
(b) Will carry out their undertakings according to the expectations attached to it by the moral
sentiments of society. (Good faith)
(c) Will restore equivalently to them by mistake which they receive at another’s expense,
something which they would not have reasonably expected to receive under the circumstances.
(Principle of unjust enrichment)
(iv) When someone gets something which is not inherently dangerous within his possession,
such person shall act with due care and caution so as to not expose anyone else to unreasonable
risk. (Rylands v. Fletcher, strict and absolute liability principles) Also, such substances must be
kept within bounds and not allowed to get out of hand.

12. Later on even Pound was compelled to say that society today demands some more
propositions like the claim of a job holder to security in his job, the duty laid upon an enterprise
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in an industrialized society to bear the burden of human wear and tear and most importantly the
postulate that the risk of misfortune to individuals is to be borne by the society as a whole.
13. Pound justifies the classification of interests even though they are largely overlapping as it
makes principles and values involved in an issue clear to everyone. But, as soon as these interests
are ranked in a particular order or given the appearance of exclusiveness or permanence, they lose
their character as being instruments of social engineering and become a political manifesto. Infact
what shall be individual and what social interest is more of a political question.
14. Pound supports the creative role of the judiciary and the need for a new legal technique
directed to social ends. He also accepts the fact that value based judgments will be given.
15. He gives an example of balancing of conflicting interests by judges as follows- Incase of a
factory creating nuisance for persons residing nearby, the social interest served by the existence of
the factory must not be compared to the individual interest of the residents. What must be
compared is the individual interest of the factory owner. This is balancing of interest by putting
everyone at the same level.
16. Other examples of conflicting interests may be given as follows-
(a) Conflict between public interests- Laws made by both the Centre and the States as regards List
III. The Central law is favoured.
(b) Conflict between social interests- Conflict between SEZ owners and villagers whose right to
livelihood and place of residence is at stake.
(c) Other conflicts- conflict between Parts III and IV, between interpretation of articles, etc.
17. Roscoe Pound believed in Aristotle’s distributive justice. He believed in the 1920 s when there
was an abundance of resources in the US, there must be distribution of the same.

Extra-
18. Also, Pound went for the consensus model of society where law represents the consciousness
of the society as a whole. He describes a society which is homogenous, static and cohesive, one
with shared values and traditions. It represents the compromise of diverse interests.
19. Law to Pound was a social force.

3.4 Legal Realism-

1. Legal realism is a modern legal theory mainly developed in the US which believes that judges
make law.
2. The latest legal theory is the Critical Legal Theory or Critical Legal Studies which believe that law
and politics can be manipulated to serve the rich and powerful.
3. Legal realism can be divided into American and Scandinavian realism.

American Realism-

1. American realism is very practical in nature. It is a combination of analytical positivism (as it talks
of what law ‘is) and sociological theories (as it talks about the function of law).
2. It was an intellectual movement in treating philosophy and social sciences as empirical studies
and not rooted in abstract formalism. As regards jurisprudence, Justice Holmes was associated
with it. The advocates of this theory wanted to enlarge knowledge empirically and to provide
practical solutions to man’s problem in society.
3. Realists were infact the first ones to undertake empirical social scientific research into laws and
legal institutions. They firmly believed law as being what the courts stated. Infact, Gray went to the
extent of saying that even a statute is not law until a court interprets it.

34
4. To concretize what they had in mind, legal realists turned to those sciences like economics,
criminology, general sociology, psychology, etc. which had begun to explore human behaviour in
society and sought to utilize them as the source of law.
5. Legal realists may be criticized on the ground that they ignore the purely normative character of
legal rules and seek to replace them by scientific principles.
6. Justice Frank divides realists into 2 groups-the fact skeptics and the rule skeptics. The rule
skeptics are those who look into rules to determine uniformities in judicial behaviour. These judges
mainly exist at the level of appellate courts where facts are not decided upon as such. The fact
skeptics on the other hand try to examine uniformity in judicial behaviour on the basis of facts.
Such persons operate at the level of trial courts where generally questions of fact are decided.
However, here Frank unnecessarily undermines the importance of facts and ignores factors other
than law and facts which influence law.

Justice Holmes-

1. He said that the life of law was experience as well as logic. He viewed law as predictions of what
courts will decide.
2. He decided to strictly distinguish law from morals and the lawyer is mainly concerned with what
‘is’ and not what ‘ought to be’. He decided to define law in terms of its consequences.
3. Holmes believed that the development of law could be justified scientifically as the true science
of law consists in the establishment of its postulates from within upon accurately measured social
desires instead of tradition.
4. But, he doesn’t mention as to wherefrom can an objective sound policy be developed.

Justice Gray-

1. He said that law is different from its sources.

2. According to him, legislation, custom and precedent would be the sources of law and what
judges decide would be law as such.
3. He believed that precedent would also be a source and that which is immediately applied would
be law as such. Like in a case where a judgment (ratio of case with reasons) is given and an order
allowing or prohibiting something is passed, the judgment acts as the source of law while the
order is the law.
4. Gray sharply defined notions in law and he opposed infusion of ideologies into the science of
law.
5. Gray also considers the influence of personality, prejudice and other non-logical factors in the
making of law from its sources.

Justice Karl Llewellyn-

1. Llewellyn treats law as an institution. According to him, an institution is an organised activity

which is built around a job or a cluster of jobs. Incase of a major institution, the cluster of jobs is
fundamental to the continuance of society or group in which it operates.
2. The institution of law is extremely complex. It involves certain elaborate techniques such as the
use of precedent and other practices which determine how certain things within the legal system
may or may not be done. All such matters control the activities of the ‘men of law’.
3. Law-jobs according to him are 2 fold- to make group survival possible and to quest for justice,
efficiency and a richer life.
4. For Llewellyn, the problem was finding the best possible way to handle legal tools to law-job
ends.
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5. Llewellyn sees these law jobs as universally applicable to all legal systems. This leads him to a
high level of abstraction leaving many questions unanswered. (Like what is the relationship
between different law jobs?, etc.)What he overlooks is the dimension of structure and power
which are different in different societies.
6. Herein he brings his concept of ‘craft’ which consists of an organised and continuous body of
skills developed by specialists and handed down from one generation to the other by way of
education and practical example. One of the most important of these is the juristic method.
7. Llewellyn argues that there is a large measure of predictability in case law and this can be
attributed to the general craft of decision making.
8. He gives the following traits of realism-
(a) Conception of law lies in judicial creativity. E.g. Interpretation of Art. 21.
(b) Law is the means to social ends. They assume if anyone doesn’t have a problem, then there
exists no problem at all. This has been highly criticized.
(c) There has to be a conception of law in flux.
(d) There has to be a divorce between ‘is’ and ‘ought’ for the purpose of study.
(e) The belief that legal rules are inherently insufficient.
(f) Distrust in traditional belief that rules are the principal factor in deciding cases. It depends on
facts and circumstances of case, psychology of judge, etc. as well.
(g) Legal realists study law in narrower categories as they believe legislation to be very broad
which must be studied in a microscopic form by the judiciary.
(h) Evaluation of any part of law in terms of its effects.
(i) It is the judges or realists who can conduct a sustained and pragmatic attack on social and
legal problems.

Scandinavian Realists-

1. They believed that judges make law.

2. They did not believe that law could be defined in scientific terms. Therefore, they denied any
science behind law.
3. They believed that there is nothing called a value system.
4. They believe in judge made law as judges rely on the principles of justice, equity and good
conscience. Infact, there is very little scope for judicial interpretation in Scandinavian countries.

Unit IV-Philosophy of Law

4.1 Law and Justice

1. Justice is seen as the primary objective of law.
2. There are essentially 2 basic forms of justice-distributive and corrective justice.
3. Distributive justice has been best described by Aristotle in the following statement-‘Injustice
arises when equals are treated unequally and also when unequals are treated equally’.
4. Distributive justice has been best described in the writings of John Rawls. His conception of
justice demands maximization of liberty, equality for all and fair equality of opportunity.
5. Rawls’ theory is different from utilitarian theory. Utilitarians accept inequalities in social
arrangements wherein some benefits of certain people may be sacrificed for attaining the greatest
good of the greatest number. Further, Utilitarians do no object to limiting liberty and political rights
for the sake of the greatest good which is contrary to Rawls’ first principle. Also, Utilitarianism
mainly focuses on welfare while Rawls’ focuses on primary goods.
6. Rawls also doesn’t believe that principles of justice can be found in reason, nature or any sort of
social contract. He just bases them on certain mutually accepted ground principles.

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7. Rawls postulates a four stage sequence whereby 2 principles of justice (demand for equal
liberty and justification for inequalities) are incorporated in institutions mainly in constitutional
democracy. The first stage is the original position. This is followed by the constitutional stage
wherein the general structure of government and political process are embodied in the
constitution. This incorporates the first principle of equal basic liberties. The second principle
based on regulating social and economic inequalities is only incorporated in the next legislative
stage in so far as it is accepted by citizens. At the judicial stage, both these principles are protected
by the judiciary and Rawls focuses particularly on judicial review.
8. However Rawls’ original position has been widely criticized. To this he answered that this stage
is a model of procedural fairness. The most basic criticism to this is that why must people follow
principles laid down by those who were a part of this original position at all?
9. Rawls sees justice as the first virtue of all social institutions.
10. He states that the ‘difference principle’ represents an agreement to regard natural talents as a
common asset and to share in the benefits of the distribution whatever it might turn out to be. An
argument presented in favour of this principle is that it doesn’t violate the difference between
persons as it is not the persons but only their attributes which are being used as a means for
others’ wellbeing.
11. Rawls essentially talks of a society with moderate class conflict, no ruling class, etc.
12. He also stresses on liberty and says that men in the original position will choose the basic
liberties as it would ultimately lead to obtaining the primary goods. These liberties need to be
reconciled incase of any conflict to benefit all.
13. However Rawls has been criticized for giving rights primacy over basic goods.
14. Yet another problem is the reconciliation of the 2 principles of justice. Is it not true that
inequality in wealth and power always produces inequality in basic liberty?
15. Rawls tries to justify this by distinguishing between liberty and the worth of liberty. The first
represents a complete system of liberties while the latter pertains to liberty portioned in favour of
persons depending on their abilities.
16. Rawls also puts unnecessary emphasis on public reason (as flowing from an overlapping
consensus of all) and basic moral principles which finally lead to justice.
17. Further, he has also tried to extend his theory to international law by saying that the basic
principles of justice may be found in all nations whether liberal or not. He states that how even
non-liberal but well ordered hierarchical systems may follow such principles. This is contrary to the
fact that most human rights’ violators in the recent past have been from such well ordered
societies like the Soviet Union, South Africa, etc.
18. Robert Nozick on the other hand comes up with his entitlement theory according to which
economic goods arise with rightful claims to their ownership.
19. He stresses on the aspect of ‘just holdings’ or holding of only such property as one is entitled
to. According to him, if each person’s holding is just, the total set of holdings is just. He thus attacks
state action which contemplates a particular pattern of distribution contrary to this. Hence, he
talks of a minimal state.
20. For him taxation on earnings from labour is at par with forced labour. His opposition to taxation
is based on his belief that property rights are absolutely inviolable in character.
21. Another way of looking at justice is by focusing on human capabilities. This has been seen in
the writings of Amartya Sen and Martha Nussbaum. According to them, there are certain basic
human entitlements which must be fulfilled by all governments as a bare minimum.
22. Nussbaum also talks of how social justice issues affect persons with physical and mental
disabilities, animals, etc.
23. Another approach is that taken by Ronald Dworkin in studying justice in terms of rights. This
approach however is not just individual centric and believes that interest of an individual is shared
by others in the community as well.
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24. According to him, an individual has a right when there is a good reason for conferring on him a
resource or opportunity even though there are considerations of public interest which would argue
against this being done.
25. He argues for the fundamental right to equal concern and respect rather than any general right
to liberty. He also justifies the protection of minorities as a basic principle of justice on the basis of
this right. What matters according to him is that people are treated with the same concern and
respect as everyone else.
26. Another aspect of justice relates to feminism. Rawls concept has often been criticized for its
failure to address justice within the family.
27. Social justice as per this school means elimination of subordination and oppression rather than
distribution. They thus call for cultural and structural changes.
28. Justice as per certain feminism advocates means providing institutional conditions which
enable people to meet their needs and express their desires.
29. Then there are economic theories of justice which are based on the principle of utility and
increasing marginal utility. It talks about compensation and equates justice with wealth
maximization.
30. Another theory is that of global justice which wants justice to be universally applicable to all by
following certain basic principles and reasoning.
31. The other most important form of justice other than distributive justice is corrective justice
which is based mainly on the principle of compensation as under tort law. This is mainly to correct
unequal distribution. It can also be seen in contract law in the form of the principle of no unjust
enrichment.

4.2 Law and Morality

1. What is legal may not be moral and vice versa, though both influence each other. The essential
difference between the two is that law is always backed by sanction.
2. Natural law theorists believe morality as being the basis of law and say that laws emanate from
morals. St. Thomas Aquinas talked of such laws as being Lex Naturalis and Rousseau about the
General Will. Kant based his theory on the categorical imperative. Stammler also mentioned a ‘just
law’. Finnis refers to the basic goods of law, Fuller gives the 8 basic conditions and Hart talks of the
5 basic conditions of life. All this has some element of morality in it.
3. Positivists do not believe in morals being the source of law as such (difference between ought
and is). Sociologists focus primarily on society.
4. The importance of morality with respect to law can be seen from the fact that it is one of the
‘reasonable restrictions’ to fundamental rights.
5. Morality differs from person to person and from place to place. This can be seen as regards the
issue of decriminalizing homosexuality which though accepted in countries like Canada is still
under consideration in India and has been absolutely rejected in Islamic nations.
6. This issue came up in the case of DPP v. Shaw wherein the accused was convicted of conspiracy
to corrupt public morals as he had published a magazine which gave names, addresses and nude
photographs of prostitutes. For the first time it was considered as to how far must the state go
trying to censure public morals. This was looked into by the Wolfenden Committee Report.
7. Infact, there was a debate between Hart and Lord Devlin as to what is the proper sphere of law
in relation to morality.
8. Other cases include Ranjit Udeshi v. State of Maharashtra-lady Chatterley’s lover case
(application of the Hicklin test evolved in Queen v. Hicklin), Chandrakant Kakodkar v. State of
Maharashtra-short story Shama held that mere reference to sex doesn’t imply obscentiy, KA Abbas
v. Union of India-Hicklin test reaffirmed, Raj Kapoor v. Laxman-censor cant act as moral tailor,
Samaresh Bose v. Amal Mitra-vulgar writing not necessarily obscene, Bobby Art International v. Om

38
Pal Singh Hoon-bandit queen case, Maharashtra v. Ms. Joyce-bar dancers case, Naresh Khurana’s
case-not all performances are obscene, etc. (Read criminology notes for facts)
9. There has also been the Hart-Fuller debate with respect to the same as discussed earlier.
10. There are different stages in which morality and law have developed. They are-
(a) In the first stage, there is no difference between the two.
(b) Then there is strict codification of law. Here, it may seem to lose some of its moral principles.
(c) In the next stage, the legislature might try and infuse some moral principles into the law.
(d) The last stage involves conscious and constructive law making primarily by the judiciary in
consonance with moral principles such as those of reasonableness, dues process, etc.
11. The basic differences between law and morality are-
(a) Morality is universal in nature while law differs from state to state.
(b) Morality is mostly recommendatory while law is mandatory.
(c) Morality pertains to one’s internal conduct while law regulates the external conduct of man.
(d) Law is submission of individual to the collective will of society (based on sanction) while
morality subjects him to his conscience.
(e) Law considers man as a person due to his free will while morality guides the direction of the
free will.
(f) Law comes into play only after something has happened while morality forbids one from doing
something immoral in the first place.
12. Morality may be studied as the basis of law, as the test of law or as the purpose of law.

4.3 Law and Technology

1. Law and technology are interrelated in the sense that several laws have been enacted for the
protection of technology and prevention of misuse.
2. Examples of the same include the IT Act, IPR, etc.
3. However, the law with respect to the same is insufficient due to lack of expertise and dynamic
nature of technological advancements.

4.4 Law and Science

1. Law is a social science as such but many times scientific methods have been applied to the study
of law.
2. An example may be given of Kant who tried to apply scientific methodology to law.
3. Scientific developments are also governed by law such as developments as regards genetic
science, cloning, polygraph tests and brain mapping, forensic evidence collection, etc.

Unit V- Feminist Jurisprudence

1. The latest development in legal studies has been the Critical legal studies. It is an outcome of the
work of critical legal theorists in the US. These theorists deny the natural, sociological and positivist
law theories.
2. They believe that law is all politics where everything is manipulated to serve the interests of the
wealth.
3. An offshoot of this is the Critical law race (CLR) which states that law and its application depends
on the race. Feminist jurisprudence is derived from CLR about 30 years ago. In 1983, a section of
the CLS conference was specifically devoted towards women.
4. Under feminist jurisprudence, there are broadly 4 schools which believe that laws differ on the
basis of gender. They are as follows-
(a) Liberal- This school believes that men and women are born equal and hence must be treated
equally. Thus, women must be empowered to make them equal to men. For e.g. 33% reservation
for women in local bodies.

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(b) Radical- They believe that biological differences make women vulnerable and hence they must
be protected by law. For e.g. protective discrimination in favour of women under Art. 16.
(c) Cultural- They say that women are meant to nurture relations and emotions while men are
meant to be logical. Hence, they clash on this point. Thus, the women’s voice needs to be
protected by law.
(d) Post Modern- They want present theories to be changed and regard the sexes as being only
biologically different. They thus state that there is no ‘women’s point of view’. They justify this by
questioning as to what category the third gender would be put.
5. Feminist jurisprudence primarily deals with the law’s connection with oppression with particular
reference to patriarchy. They believe that society and necessarily legal order is patriarchal.
6. It has also resulted from the recent women’s movement and in the writings of persons like Kate
Millet, Betty Freidan, Eva Figes, etc. It has also been influenced by the fact that a large number of
women recently started studying law and thus were able to have a better idea about the scenario.
7. As per Clare Dalton, Feminist jurisprudence is an enquiry into the nature and extent of women’s
subordination, through what mechanisms the same happens and for what reasons do women
continue to remain in such position.
8. Feminist theories mostly focus on equality as a factor. For the liberals, equality means equal
opportunity. Radicals focus on inequalities between men and women and suggest certain solutions
for the same. Cultural feminists also emphasise on such difference but view it more positively. Post
modern feminists view equality as being a mere social construct. They say that since it is a
patriarchal concept, it needs feminist reconstruction.
9. Feminists like Scales have stated that one of the problems of the current system is the
objectification of women. She looks at feminist jurisprudence which will focus on domination,
disadvantage and disempowerment instead of examining the differences between the sexes.
10. As stated earlier, feminists focused mostly on equality. Liberal feminist Wendy Williams states
that equality may be achieved either through equal treatment on the basis of similarities or
differential treatment on the basis of differences. She favoured the first option as women’s
difference could be a basis for treating them better or even in some cases treating them worse.
But, this approach only benefits such women who meet male norms.
11. Another view taken is that of ‘equality as acceptance’ which states that to accept women’s
differences, society must do more than just accommodate them. This view doesn’t focus on the
sources of differences but on their consequences.
12. Catherine Mackinnon is probably the most influential feminist legal scholar. She argued that
feminists must focus on identifying dominance instead of difference. However, she has been
severely criticized of viewing a woman only as a victim of male oppression.
13. The recent argument has been that women’s choices are unconsciously determined by gender
ideology which leads to ‘false consciousness’. This has continued to torment feminist
jurisprudence.
14. Another issue confronting feminism is the difference between ‘public’ and ‘private’. Generally,
the state doesn’t foray into the private sphere of individual activity and thus exempts families from
the ambit of law. Hence, inspite of women’s rights being given importance in the public arena
where the state operates, it has been completely neglected as regards domestic matters. This leads
to greater domination by men in the family. Only recently has the concept of domestic violence
been given importance as under the Domestic Violence Act. There is still no adequate protection
for things like marital rape, honour killings, female infanticide, child marriage, etc. But, to what
extent can the state interfere in family matters? Another problem is that the state is generally
infused with largely patriarchal ideas and hence they would view the problem in the same manner.
15. Another problem is that of the ‘culture defence’. Can the state make laws contrary to traditions
and cultures of minorities which are detrimental to women? Examples may be given of Muslim law
which speaks about polygamy or Somalian law which encourages circumcision of women or the
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law in Laos which allows a man to ‘marry by capture’. The legal system is often faced with several
complications in trying to resolve this problem as such customs pertain mainly to the private arena
and any changes brought in would be seen as a threat to culture. Even women in such societies are
an active part of such a system and do not oppose these practices. Making laws with respect to the
same would mean denying minority rights.
16. Feminist legal methods reject positivist theories as they are against the assumption that
through observation and measurement by an objective observer the truth about reality will
emerge.
17. Instead they support critical legal theories which uncover ideologies which maintain status quo
in society by restricting different groups’ access to knowledge.
18. Feminist legal methods essentially consist of 3 methods- asking the woman question, feminist
practical reasoning and consciousness raising. It has been stated that by using better methodology
will help extend one’s limited perspective. This is because the truth is seen as been situated and
partial, based on social contexts.
19. Other feminists feel that legal language is mostly gendered. The law hasn’t ignored women but
its understanding of women has been from a male perspective.
20. There are others who apply feminist jurisprudence to international law questioning as to why
issues like female genital mutilation, population control, mail order bride practices, sex tourism,
etc. were outside the purview of international human rights law.
21. Hence, an effort needs to be made to condition legal language in a manner favourable to
women. Like areas such as tort, contract, etc. must contain provisions specific to problems of
women.

Unit VI- Criminal/Civil Justice

6.1 Alternative methods of dispute resolution

1. New methods of dispute resolution such as ADR facilitate parties to deal with the underlying
issues in dispute in a more cost-effective manner and with increased efficacy. 2. In addition, these
processes have the advantage of providing parties with the opportunity to reduce hostility, regain a
sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and
achieve a greater sense of justice in each individual case.
3. The resolution of disputes takes place usually in private and is more viable, economic, and
efficient.
4. Transcending national boundaries it renders proportionate judgments over the merchants’
disputes, as the Law Merchants of Medieval ages rendered justice in light of “fair price”, good
commerce, and equity.
5. A brief description of few ADR procedures widely used is as follows:
(a) Negotiation : A non-binding procedure in which discussions between the parties are initiated
without the intervention of any third party with the object of arriving at a negotiated settlement
of the dispute.
(b) Conciliation Mediation: A non-binding procedure in which an impartial third party, the
conciliator/mediator, assists the parties to a dispute in reaching a mutually satisfactory and
agreed settlement of the dispute.
(c) Med-Arb: A procedure which combines sequentially conciliation/Mediation and where the
dispute is not settled through conciliation/mediation within a period of time agreed in advance
by the parties, arbitration.
(d) MEDOLA : A procedure in which if the parties fail to reach an agreement through mediation, a
neutral person, who may be the original mediator or an arbitrator, will select between the final
negotiated offers of parties such selection being binding on the parties.
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(e) Mini-Trial : A non binding procedure in which the disputing parties are presented with
summaries of their cases to enable them to assess the strengths, weaknesses, and prospects of
their case and then an opportunity to negotiate a settlement with the assistance of a neutral
adviser.
(f) Arbitration: A procedure in which the dispute is submitted to an arbitral tribunal which makes
a decision (an `award') on the dispute that is binding on the parties.
(g) Fast track Arbitration: A form of arbitration in which the arbitration procedure is rendered in a
particularly short time and at reduced cost.
(h) Neutral listener Agreement: Parties to a dispute discuss their respective best settlement offer
in confidence with a neutral third party who, after his own evaluation, suggests settlements to
assist the parties to attempt a negotiated settlement.
(i) Rent a judge: Disputing parties mutually approach a referee, usually a retired judge, before
whom they present their case in informal proceedings. The referee judge gives his decision
which is enforceable in a court of law. The fee of the referee is paid by the parties.
(j) Final offer arbitration: Each party submits its monetary claim before a panel that renders its
decision by awarding one and rejecting the other claim.

6. The seeds of ADR in the UK can be traced to the work of the advisory, conciliation and
arbitration service which was formed in 1974.
7. In China and Japan mediation was used as primary means of conflict resolution. The Chinese
principle was the influence of Confucian view of harmony and dispute resolution by morals rather
than coercion. In Japan, Judges intervene extensively during the in-court settlement; every
Japanese Judge is expected, both by law and by litigants, to move a case towards settlement. The
Judge, who decides to switch the litigation to a settlement mode, takes off his robe and acts as
mediator.
8. In 1976, Roscoe Pound Conference was held to commemorate the anniversary of his dissertation
on “Public dissatisfaction with the American Legal system”. It was this conference that the current
ADR movement actually started in America and now these methods are so successful that nearly
93% of the civil disputes are settled outside the courts.
9. The Hong Kong International Arbitration Centre is most probably the largest arbitration service
centre in Asia.
10. ADR is by no means a recent phenomenon in India. In earlier times, disputes were peacefully
decided by intervention of kulas (family or clan assemblies), srenis (guilds of men following the
same occupation), parishads (assemblies of learned men who knew law) before the king came to
adjudicate on disputes. There were Nyaya panchayats at grass root level before the advent of the
British system of justice. Later on, Lok Adalats (people's court) have provided speedy and
inexpensive justice in both rural and urban areas in India.
11. To effectively implement the ADR mechanism, organizations like ICA, ICADR were established,
Consumer redressal forums and Lok Adalats revived.
12. The Arbitration Act, 1940 was repealed and a new and effective arbitration system was
introduced by the enactment of the Arbitration and Conciliation Act, 1996.This law is based on the
United Nations Commission on International Trade Law (UNCITRAL) model law on International
Commercial Arbitration.
13. The Legal Services Authorities Act, 1987 has also been amended from time to time to endorse
use of ADR methods. Section 89 of the Code of Civil Procedure as amended in 2002 has introduced
conciliation, mediation and pre-trial settlement methodologies for effective resolution of disputes.
14. Further, the Constitution of India has defined and declared the common goal for all of us as —
"to secure to all the citizens of India Justice social, economic and political; Liberty; Equality and
Fraternity".

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15. In Sitanna v. Viranna, AIR 1934 SC 105, the Privy Council affirmed the decision of the Panchayat
and Sir John Wallis observed that the reference to a village Panchayat is the time-honoured
method of deciding disputes. It avoids protracted litigation and is based on the ground realities
verified in person by the adjudicators and the award is fair and honest settlement of doubtful
claims based on legal and moral grounds.
16. There are some important organizations making significant contribution in promoting ADR
services in India which need a special mention herein namely ICA and ICADR, the Federation of
Indian Chambers of Commerce and Industry, Indian Chamber of Commerce, the Bengal Chambers
of Commerce and Industry. The Indian Council for Arbitration (ICA) established on April 15, 1965
provides arbitration facilities for all types of domestic and international commercial disputes and
conciliation of international trade complaints received from Indian and foreign parties, for
nonperformance of contracts or noncompliance with arbitration awards.

6.2 Legal Aid, Lok Adalat-

1. It roughly means "People's court". India has had a long history of resolving disputes through the
mediation of village elders. The system of Lok Adalats is an improvement on that and is based on
Gandhian principles.
2. This is a non-adversarial system, where by mock courts (called Lok Adalats) are held by the State
Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services
Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they
thinks fit. These are usually presided by retired judge, social activists, or members of legal
profession. It does not have jurisdiction on matters related to non-compoundable offences.
3. There is no court fee and no rigid procedural requirement (i.e. no need to follow process given
by Civil Procedure Code or Evidence Act), which makes the process very fast. Parties can directly
interact with the judge, which is not possible in regular courts.
4. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties
agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court
sees some chance of settlement after giving an opportunity of being heard to the other party.
5. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes
back to the court. However, if a compromise is reached, an award is made and is binding on the
parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and
cannot be appealed, not even under Article 226 because it is a judgement by consent.
6. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is
deemed to be a Civil Court.
7. In order to get over the major drawback in the existing scheme of organisation of Lok Adalats
under Chapter VI of the Legal Services Authorities Act, 1987, in which if the parties do not arrive at
any compromise or settlement, the unsettled case is either returned back to the Court of law or
the parties are advised to seek remedy in a court of law, which causes unnecessary delay in
dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987
providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of
disputes relating to Public Utility Services at pre-litigation stage itself, which would result in
reducing the work load of the regular courts to a great extent. The First Lok Adalat was held in
Chennai in 1986.
8. Camps of Lok Adalats were started initially in Gujarat in March 1982 and now it has been
extended throughout the Country. The first Lok Adalat was held on March 14, 1982 at Junagarh
in Gujarat the land of Mahatma Gandhi.
9. Benefits of Lok Adalat-
(a) First, there is no court fee and even if the case is already filed in the regular court, the fee paid
will be refunded if the dispute is settled at the Lok Adalat.

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(b) Secondly, there is no strict application of the procedural laws and the Evidence Act while
assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented
by their advocate can interact with the Lok Adalat judge directly and explain their stand in the
dispute and the reasons therefore, which is not possible in a regular court of law.
(c) Thirdly, disputes can be brought before the Lok Adalat directly instead of going to a regular
court first and then to the Lok Adalat.
(d) Fourthly, the decision of the Lok Adalat is binding on the parties to the dispute and its order is
capable of execution through legal process. No appeal lies against the order of the Lok Adalat
whereas in the regular law courts there is always a scope to appeal to the higher forum on the
decision of the trial court, which causes delay in the settlement of the dispute finally. The reason
being that in a regular court, decision is that of the court but in Lok Adalat it is mutual settlement
and hence no case for appeal will arise.
(e) Last but not the least, faster and inexpensive remedy with legal status.
10. The major defect of the mechanism of Lok Adalat is that it cannot take a decision, if one of the
parties, is not willing for a settlement, though the case involves an element of settlement.
11. The National Legal Services Authority is a statutory body which has been set up for
implementing and monitoring legal aid programs in the country. National Legal Services Authority
was constituted on 5th December, 1995 by His Lordship Hon. Dr. Justice A.S. Anand.
12. Cases relating to legal aid- (mainly Legal aid to prisoners)
(a) Hussainara Khatun v. Principal Secy., State of Bihar
(b) Khatri v. State of Bihar
(c) Sukhdas v. Union Territory of Arunachal Pradesh
(d) M.H Hoskot v. State of Maharashtra

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