Appendix of the morality of law by L L Fuller

Law: state, moral quality, procedure and justice

Approaches: source based, procedure based, content based (moral quality) and objective based

(checking against the end and the aim)

School of thoughts: positivism, natural law school, historical law school and realism

(Judges/Courts)

John Austin [province of the jurisprudence determined, Lecture 1 and 6]: he was the first

law

improper law proper law

analogous law [laws of metophorical use
the fashion, cutoms8 [scientific laws and
made by men for men made by god for men
and international law laws governing
and laws made by god] inanimate bodies]

not as political
as political superior
positive morality superiors for non
for political inferiors
political superiors

positive law postive morality

who systematically classified laws.

John Austin: law is a general command of a sovereign backed by a sanction.

He was only concerned with positive law. These were called positive because human beings

have created such morality and laws.

Customs are not counted under positive law because the human being who started that custom is

not identifiable; therefore it is counted under morality.

Sovereign:

 Determinate human superior [someone who can be identified at any given point of time.

It may not be permanent.]

 Receive habitual obedience from the bulk [positive mark].

 Does not likewise obey any other superior [negative mark].

 Indivisible

 Unlimited.

 the people are indeterminate group, therefore people cannot be considered sovereign. As one

cannot trace people, thereby he negates the view of ‘popular sovereignty.’

 Constitution cannot be treated as a sovereign as it is not a human.

 Parliament is a sovereign as it is a determinate group of human beings. Though the members

of parliament are changing but can be determined at any point of time. It may be small or

large.

 Apart from parliament, any king or monarch is a sovereign. Even autocrats are sovereign.

Positive mark: it means most of the people are obeying most of the commands. Certain

commands may be disobeyed. Apart from this, there may be some dissenters who may not be

obeying any command but if they are very small in no., it won’t affect the sovereign. Bulk of the
people should obey the command and bulk is much more than the simple majority. This is called

the positive mark. It must have this quality to make the bulk obey laws and commands.

Negative mark: Sovereign should not regulate, direct or in any way be affected by any other

authority. It should be ultimate topmost authority.

Indivisible: there should be only 1 sovereign. In the cases where 2 sovereigns are present, there

arises a situation of clash which may to division of the country.

Unlimited: the rule making power of the sovereign should not be defined and limited or

controlled. There should be no limit on power to make laws.

Therefore, the command of this sovereign would be law. A command (Expression of a wish in a

imperative form, one must follow them) is a significance of desire. But a command is

distinguished from other significations of desire. A party to whom it is directed is liable to evil

from the sovereign in case he does not comply with the desire.

Sanction is an evil consequence of not following the command. People are obliged to do or

forbear the command. Such evil consequence should not be a natural consequence. It should be

coming from a sovereign. Judiciary can never ask government to ask government to make a law.

They can only give administrative direction.

Command theory or command duty modal: John Austin’s view of law

Sovereign do enjoys the power to delegate the legislation making power.

This theory only talks about enforcement of law on account of sanction or fear. It does not talks

about such laws which are backed by encouragement or incentives.

Evil consequence should emerge from the State and not the societal behavior. E.g. beaten up by

mob on third child.

Parliament has unlimited law making power as the judiciary may declare a law void at a future

date, but at the time of its birth, it is a law.

Law making power is always limited by the constitution, therefore the theory of Austin is not

according the realities of State.

Supreme Court judgments can always be abrogated by the Parliament, therefore Judiciary cannot

be called as the Sovereign.

Tacit command is an indirect command, like Judiciary makes a case law and Parliament stays

silent on that. Express command, direct command of the sovereign.

What gives law quality to a legislation from Austin’s view? The source, the authority, the

sanction, obedience of such law by people and the enforcement power

Hitler’s laws were valid as per the Austin’s view.

London charter: it emerged the allied forces who are occupying Germany. It also is a law from

the point of view of Austin. London charter made ex post facto criminal legislation, therefore

obedience of that cannot be traced to past events. Therefore, London Charter was unjust but still

was a law.
Prediction of future of nations where tussle for power is going on: yes, prediction can be done.

Either one power will eliminate other or the nation would be divided.

Weakness of Austin’s theory

Does Austin’s theory help us understand why people obey law?? Fear, self interest, clarity in the

system, as a habit, proper system, reverence, because we are the creators of these laws i.e. idea

of freedom (I create the law and I follow). Austin’s theory makes no distinction between these

ingredients and it does not mattered with why people obey law. How to distinguish between

good and bad rulers. In Austin’s theory, only obedience is meant for. Qualitative distinction

cannot be made between good and bad ruler.

Why a sovereign is a legitimate sovereign?? As he is powerful and can compel people to follow

laws. The only factor which makes sovereign a legitimate sovereign is he being powerful and

having the ability to make people compel to follow laws. Idea of legitimacy is linked with idea of

power. But this leads to similar situation as found in state of nature i.e. might is right. His theory

does not create any distinction between state of nature and state of civil society. He also talks

about one powerful power and no transfer of society from state of nature to civil society.

In Austin’s theory, it is not necessary that the people may have chosen their ruler. Any authority

who fulfills the requirements of sovereignty, would be termed as legitimate sovereign.

Austin’s theory does not help us understand how a sovereign is legitimately replaced by another

sovereign. Legitimate replacement means replacement on account of the established rules. if

anyone successfully bypasses such process, such authority would not be considered as legitimate

sovereign. He links the idea of sovereignty with power. Which makes no distinction between

state of nature and civil society.

Descriptive theory: is that in which the philosopher only describes what he believes is happening

. it is morally neutral theory,. He do not passes any moral judgemednt and is not concerned with

what should be done and how things should be changed. Austin’s theoty is also a descriptive

theory as it is very scientific in nature and is not concerned with quality of law and ruler.

Austin’s theory tells us what is law and not what ought to be a law. Positivism deals with the

former part and he is neutral and do not prescribe any regulations and provide descriptive theory.

Whereas the later part is prescriptive and he participates in the events by suggesting different

changes and recommendations. This is natural law school.

Does austin’s theory describes the law comprehensively? Austin has omitted certain things such

as: 1. Customs, the realities is all the legal systems do consider customs as laws. 2.source of the

power of sovereign….constitutions provide the law making power in limited sense, he has

completely omitted the whole concept of constitution. 3. He is only concerned with laws which

are backed by sanctions. He is not concerned with the laws without sactions e.g. preambles,

declaratory laws, definition clauses, repealing section and the legislations which are beneficial

and welfare legislations. Following of certain directions may lead to certain incentives but not

following may not lead to any evil are not concerned as law in Austin’s theory. To justify

Austin’s theory, the meaning of sanction has to be stretched to include incentives even.

Custom are also law as origin of these ideas are not concerned with, only thing required is it the

sovereign who have implemented and codified the laws.

Case: assembly case and Lahore conspiracy case

Assembly case: the trial of this case started without knowing the fact that bhagat singh was also

the culprit of Lahore Conspiracy Case.

Section 307 IPC and section 3 of Explosive substance act 1908: provided for transportation of

the person

He was imprisoned for life. During that, he confessed of the Lahore Conspiracy Case. So he was

charged for : Section 300, 121, 121A, 122, 123 IPC

Using law as a standard of judgment.

Austin’s theory is based on command duty model and do not provide any justification for the

legitimacy of law and ruler but only power. Power is the only justification for the justification of

law and ruler. Conviction in law should there, law should be collateral to fear. This is one of the

core weakness of Austin’s theory.

HLA HART

External aspect: used by magistrates to find the guilt of the person. Comparing action of the

accused with the provision and demands of the law.

Internal aspect: used by masses to pass their judgment or moral judgment about his fellow

human beings. Internal aspect is conviction for a law and belief in that law. If the society losses

conviction in a law, the law breaker would not be considered as a criminal. In Austin’s theory,

the distinction between both of these is overruled and he was only concerned with external

aspect. The law should be such that every law breaker should be legally guilty and as well as

morally guilty. Law should be used in daily life of the masses and feeling of criminality about a

crime should be present in the masses. Law should also be used by the people as a standard of

moral judgments.

Problems of Austin’s law

  No difference between good ruler and bad law, and good law and bad law, which leads to

state of nature. Austin’s modal reinforces state of nature by saying that more powerful

becomes the sovereign so that he can make the other oblige to follow the laws.

 Quality of law and ruler is immaterial.

 Since it is a descriptive theory of law, it does not adequately describes the reality of law

e.g. limitation to law making powers due to constitution.

 Some laws do not fit in the command manner, e.g. repealing law, declaratory law,

definition clause

 He does not provide any rule for transition of power, the derivation of legitimacy of the

new ruler is not defined. The only condition provided is that the new ruler possess power

to be a sovereign.

 External/internal aspects of law are completely overruled. His modal is useful only for

judges and not for the people. If people do not have conviction in law, its violators

become hero for the society.

 Again takes the society back to the state of nature

 Does not take into account the customs

 Not concerned with the laws which are backed by sanction.

TA: Hart’s concept of international law: if international law is considered as law, a lone

standing liability may arise which would be independent of the domestic laws. law is a

justification for harming people. If international law would be considered as law, it may justify

harming people irrespective of the presence or absence of domestic law. Such lone standing

liability would be required under international law so as to provide a stage for just fights

between state and its citizens, when the citizens are unable to approach the authorities of their
states itself e.g. in the cases of corruption, if the judicial body of a nation is corrupt, the

international body would provide a stage for hearing such matter.

Hart’s Concept of Law:

secondary rules
solutions to
rules of rules of
rules of change the primary
recognition adjudication
rules

how to identify
which primary rules how to change the problems with the
how to adjudicate
should be rules primary rules
considered as law

primary rules primary rules primary rules

 There is a difference between being obliged to follow and having an obligation to follow.

 Gunman example

 Being obliged: one is compelled due to external factors and circumstances which are

beyond one’s control.

 Austin’s modal makes people obliged to follow and people are not having any obligation.

 Internal aspect of law is missing only becomes it makes people obliged to follow.

 Critical reflective attitude: how people generally reacts under particular situation.

 Conviction in rule comes through the consent in a particular rule, which brings internal

aspects to it.

 Non violent civil disobedience against bad law is alright. The ruler is not justified but the

mode of protest is deciding factor.

 Hart focuses more on rule than command. Command is coming from political superior

(powerful) to political inferior. Rule is bottom to up modal and its deriving from the

people itself as everyone is consenting by participation in its formation. Basic Rules

emerge due to customs.

 Best way of distribution of resources is that everybody participates in law making. Due to

deficiency of resources, the interest of people clashes and they exert pressure on each

other, which lead to law making by everyone and not choosing one powerful monarch.

 As these rules are made by the society, they uses it for social judgment even

 Whenever we have chosen representative, the change of such representatives is also in

consonance with the procedure, therefore such transition would be justified.

 The laws made by the mutual consent, such laws make creates obligation to follow.

 As rules would be emerging from the society, they would be customary rules and there

may be many rules. which one should be adopted as a uniform method for the whole

society. Here, two customary rules may cocnflict with each other on a same subject

matter.

 Problems identified at this stage:

o How to identify out of so may existing, which is the relevant one and applicatble

on everyone.

o If somebody have broken a rule, who will pass the legal judgment. Merely having

these rules is noe enough to decide legal issues.

o These rules need to changed time to time. As these are being derived from

society, aand as society keep on changing, who will change such rules. therefore,

primary rules and secondary rules were made.

 Primary rules: rules originated by the society which confers duty and sets standard of dos

and donts and creates obligation. To solve the upper three problems, he states that society

gradually derives secondary rules.

 Secondary rules: Rules of recognition, rules of adjudication and rules of change, which

are usually found in the constitution. Legislature derives the rules as they have the power

under the constitution (which is creating power conferring rules and identifies the most

relevant rules for the whole society). Constitution also provided rule changing power to

the legislature. Judiciary is established for adjudication.

 Legislature like contract law helps in creating the obligation by the consent of the people

and sets the standard, under which the individuals can which with their mutual consent. It

does not compel to do something particular. Such laws are also treated for social

judgment. But all these laws are being validating the constitution.

 Secondary rules are not creating any rules, but only confer powers. Primary rules confer

duty.

 Legal system is a combination or union of primary and secondary rules.

 Purpose of law is to create obligations. Only then we can use law for passing judgment,

both social and judicial. If people do not take law as social standard, the lawbreakers will

be termed as hero.

 He built a concept of law, in which consent of society is present. If the consent is

missing, the obligation would be missing.

 People exert pressure on each other, social, psychological, economic, which lead to the

development of rules which becomes customary rules as they are compulsory for the
 development of society. Such rules are primary in nature and they create obligation. They

develop due to societal interaction.

 Societies which have not solved the three problem associated to the rules, they are called

as rudimentary or underdeveloped societies or primitive society. Such societies have only

primary rules present. Gradually, societies do solve such problems by identifying a

second set of rules, i.e. secondary rules which are power conferring, in which certain

presons are identified and conferred powers so as to solve the issues of the primary rules.

 International law is exhibiting the presence of primary rules, but he issues of primary

rules are not present. Therefore, it is law but due to lack of problem solving mechanism,

it is considered as underdeveloped rules. it cannot be a part of an advanced legal system.

 From where the law quality comes in primary rules? How do we know that primary rule

is a legal rule and is not merely a social rule?

 To find out the nature of the rule, you look at the reactions of the society in cases of

deviation. If the deviation is critical and exerts pressure and guilt but not creating

violence, such rule may be only social rule. If violence takes place, such rule may be

called as legal rule. Fear of violence gives law quality. Here Austin and Hart gives the

same view.

 The procedure of law making also gives the law quality to the secondary rules.

 Secondary rules are regulating the primary rules. there might be unclarity in the violation

of the primary rules and the violence by the society in the deviation may even be

excessive. Therefore, we need secondary rules.

 In advanced legal system, to determine that any activity is legitimate should be found in

conformity with the existing rules e.g. constitution. In the case of Khap Panchayat, they
 were not empowered by the constitution to make rules for the society. [rule of

recognition]. But such laws could be called as social rule, which can be made legal rules

by due process of law.

 Rule of recognition is a power conferring rule which do not limit the power of the law

making body. They may choose law from the existing rules or may develop new rules.

 Rule of recognition will not allow such social rules which are aginast the secondary rules,

to be recognized as legal rules.

 2 principles of interpretation:

o Legality of legislations is a presumption. All legislations are presumed to be valid

on the day of its formation.

o If it is found invalid, it

o may not that the entire legislature would be struck down, only the unconstitutional

part will go away.

All governmental systems can fit into the theories of Austin and Hart, be it democrary or

monarchy. If the society itself confers power to the government, it would be the hart’s theory and

if the Government gets the rule making power by using power and without the consent of people,

it would be under the Austin’s Model.

Difference between Hart and Austin:

 command and rule

 source of rule making

 being obliged and having an obligation to follow

 external and internal aspects of law

  transition of power

 necessary sanction

 Range of application: Austin (Superior  inferior) whereas hart provided that it would be

applied on the superior even. The private capacity of the rule makers is different from the

official capacity (Superior  superiors as well as inferiors).

Whether rule of recognition has recognized certain primary rule as a legal rule or not. In

advanced legal system, any rule will be legal rule if it is formed by following the due process.

How to find the legality of the social rules in the absence of secondary rules? violence.

Situation: Taliban beating women on breaching the rules

Lawfulness is to be against the secondary rules itself in advanced legal system. In the absence of

constitution, any rules made by the authority governing the state is a legitimate law.

Law quality in a primary rule is due to violent reaction.

Circularity in his theory: violent reaction of t eh society is an act of enforcement of social rule.

But at the same time, it is creating a legal rule.

If social rule is enforced violently, is such act of violence is lawful act or not? If violence is in

accordance with law, it would be lawful.

But now, what is law is itself determined by violence.

Therefore, if the fact of violence a justification for its own existence. For hart, it is justification

for itself.

Here hart and austin’s theory becomes same.

These theories are not preaching violence, but the legal systems are so only.

FACT OF VIOLENCE IS A JUSTIFICATION FOR ITS OWN EXISTENCE: in the primary

rule level and in the rudimentary legal system. From Austin as well as Hart’s view.

In advanced legal system, the violence is used to enforce law. But from Hart’s point of view,

violence is enforcing as well as creating law. The instance of violence in which the social norm

was converted into law, what is the justification of such violence. This is the problem of

circularity.

People obeying the law under the Austin’s theory is emerging only from violence only.

Hart if hoping that the societies will realize the problem and the secondary rule would be such

which disallows such violence and the societies would be good secondary rules and

constitutions. Only if the constitutions are good, violence will not be the justification of itself.

Instrument of Government, Sweden 1974: constitution of Sweden, chapter 2 art. 1, freedom of

expression- making child pornography in a comic form and disseminating it is allowed under this

freedom of expression. Therefore, right to pornography becomes fundamental right under

Sweden constitution. Berth Milton, has earned 200 milliom $ thorught the business of

pornography in Sweden.

Constitution of Islamic republic of iran: article 24; Press Law of Iran, Article 6 and 28 – if there

is anything contrary to Islamic principles and public decency in published article, it may result to

hard punishment. Saeed Malekpour, a Iranian, working in Canada, helped someone in

developing an adult website. He was punished under Iranian law and was given dealt penalty

which was reduced to indefinite prison term due to international pressure.

Is berth milton’s accumulation of wealth a lawful accumulation? Is saeed malekpur’s sentence a

lawful sentence?

Why constitutions are valid? Because society accepts it as valid. Constitutions are valid because

they are presumed to be valid. You cannot test the validity of the constitution on the touchstone

of morality or any other principle like separation of power or equality. It is to be treated as a

given fact. Whatever happening in the conformity of the constitution, it is valid. Content does not

matter, what matters is the presence of rule of recognition and authority.

Hart is replacing determinate human superior with the idea of rule of recognition as the source of

law.

Legislations are to be tested on the constitutional procedures. And the constitution are deemed to

be valid.

I am standing still in a moving train? Insider perspective and the outsider perspective.

Constitutions are developed by the society itself, any law made in its conformity is legal by the

society’s internal perspective. The outsider perspective means the perspective which may be

influenced by some outer law.

Judging constitutions from internal perspective won’t lead to any conclusion and everything

done in conformity of it would be right for th society. There is a chance of perpetual suppression

of minority. No reforms would take place and it would be very difficult for having change in the

constitution.

Which outsider perspective is the relevant perspective for checking the validity of the

constitution. The standard of judging the constitution cannot be find.

How to distinguish between legal system or an organized network of criminals?

Can we identify a legal system by merely looking at

 The origin of rules;

 The inter-relation of rules of various types and various levels.

Can law have any content? Is there any connection between law and morality?

If we presume humans desire to live, then the result shall be that law and morality will have an

intersection in the form of natural law. Such natural laws are the foundation of laws and

morality. The connection between law and morality is the natural law.

What is the content of natural law and how to discover this?

In the classical approach, it is the application of human reason and to observe the natural growth.

– Plato, Aristotle, St. Thomas, Aquinas. Applying this kind of reasoning, they conclude that

anything with interferes with natural growth and natural law is wrong. Natural tendencies should

not be do away with. Anything done against the order of the nature is wrong. If you observe the

nature, something is discoverable which natural law is.

Hart believes that this way is wrong, because what we discover by adopting this method by

applying human reasons is what happens and if what happens is laid down in law, it would

describe what law is. Such laws are descriptive laws whereas human laws are supposed to be

prescriptive. They are supposed to laid down, what should be done and what should not.

If a prescriptive law is broken, it still remains valid. But if a descriptive law is found broken, it

does not no longer remains valid. Even if one exception is found of the descriptive law, it longer

remains the law.

He derives at 5 truisms as a conclusion

 Human vulnerability (everyone is vulnerable to different elements);

 Approximate equality, (we all are living within a certain range, approx equality in

physical, mental strength and capacity to do certain things).

 Limited altruism, (a sense of sacrifice for other, human beings are always in a grey zone)

 Limited resources, (human body, time, money)

 Limited understanding and strength of will

Therefore, due to all these limitations, we feel natural necessity of having

 A system of mutual cooperation, we arrive at this system when we feel that we all are

weak at some points. E.g. different countries, a system of mutual cooperation do not

occur as some countries are strong and some are very weak. But when the strong

countries start getting vulnerable, this mutual cooperation starts. This system of mutual

cooperation occurs, only when the humans are bound by the above limitation.

 A system of sanction: due to this cooperation, a system of sanction develops. Everyone

gets collected together and punish the law breaker. Here lies the idea of state. The

sanction may be either physical sanctions or fear.

 Some minimum form of protection for persons, property and promises develops.

Such phenomenon lead to development of legal and moral principles.

As per hart therefore,

Natural law (the intersection) contains the five limitations said above; morals include principles

of Christianity, principles of Islam and principles of Buddhism. And laws include criminal law,

property law etc.

What is the law is devoid of moral content? Hart’s answer is yes.

Traditional natural law view: if it is too iniquitous or bad, then it should not be treated as law.

Immoral law is no law.

Hart’s view: bad law is still a law, but is should not be obeyed

HLA Hart: Law and Morality!

Law is getting interpreted is influenced by moral considerations. In this manner, morality enters

the domain of law.

Legislators are also considered by moral considerations. E.g. minimum wages Act. A more

fortunate person should not be allowed to oppress the less fortunate people.

HLA Hart believes that law such connection is no valid. No matter how the laws are influenced

by morality, any law made or pronouncement of judge is a law because the constitution allows

the respective bodies to make laws. The outcome shall be the law in every case if it is made in

accordance with the rule of recognition. So he asserts is that law and morality are connected.

If a law is made ignoring the 5 basic truism, what shall be the status of such law?

What if the law is devoid os moral content:

1. traditional natural law view: should not be treated as law at all.

2. hart’s view: it is law, immoral law is still a law but we do have no obligation to obey the law.

Human beings have no prima facie obligation to obey law. He believes that morality a is a very

important dimension of human life. But if we confuse morality with law, than we are

undermining the force of morality to . morality should be used to judge the quality of a law and

not the legality of the law. Because if immoral law is no law, then there can be no bad law. There

will be either good law or no law. But hart believews that there can be good and both law. And

this bifurcation would be maintained only if morality is not made the integral part of law.

Whenever we see an immoral law, its not sufficient to say its not immoral law. There are many

other factors even. There are layers of morality involves. First stage is the morality of the

legislations. The people are free to disobey such laws but one should not run away from the

punishment for such breaking of law.

Morality of the judgment which was given by a judge on the basis of the immoral law?

1. morality of the legislation

2. morality of the person who are breaking the law for it being immoral

3. morality of the judges who are implementing law

You maintain sanctity and necessary complexity, morality should be kept separate from law.

In Nuremburg trial, Hart’s view is that the retrospective application of the law to punish was the

right step. They had to choose between two evils, not punishing them or of punishing them. They

choose the right one. But the point he made that, one should be honest in submitting that they are
making a mistake. If you are feeling any guilt in doing such executions, it may become the habit

of the state of do immoral things.

There is a connection between law and morality but then even law can have any content.

Test for constitution: if the constitution is solving the problem for 5 truism.
HANS KELSEN

Pure theory of law

Method of antinomy: it is said that antinomy is a technique which is used by scholars which are

coming from the German Region. Specifically, Emanuel Kant and Hans Kelsen.

The author will tell you some fact and then he would explain such fact by certain explanations,

and such explanations are exhaustive and then he will tell that all the explanations are wrong,

thereby proving that the fact is wrong. Then the author will tell you something something which

is overlooked. The author misleads the reader in telling that the explanations are exhaustive.

Jurisprudential antinomy: there is law which is a fact, some scholars relates law with the idea of

morality, the validity of law is dependent upon morality (morality thesis) (natural law school),

there are even such scholars which asserts that law do not depend on morality but such scholars

depend of certain other fact present in the society, power of sovereign in Austin’s theory and

consent and primary rules in the Hart’s theory (separability thesis). If we say both ideas are

wrong, law is neither related to morality nor on a social fact, then comes the jurisprudential

antinomy.

Why pure theory? Law and legal theory are two different things. Law may be different from one

system to the other, but legal theories are universal in nature. So the purpose of writing a theory

is to explain all types of law and legal system. So that is possible only if one could write a theory

which is not dependent on morality or social fact and on something which is common in all legal

systems. Such commonality should be the basis for the writing the theory and such theory would

be pure in nature. Morality is impure as it differs on time to time and place to place basis. Purity

means to avoid all the variables that are there in the society. Morality and social fact are variable.
Relation between law and morality: nor separable (morality thesis) (natural theory); separable

(separability thesis) (pure theory)

Relation between law and fact: are separable (normative thesis); non separable (reductive thesis)

Natural law (law and morality are not separable but law and fact are separable.) radbruch and

fuller

Pure theory (law and morality are separable and law and fact are even separable) Hans Kelsen

Empirico-postivist theory (law and morality are separable but law and fact are not separabe).

Austin and hart

Kelsen says idea of law as command or rule is wrong. He stated that law is to be seen as norm.

norm is an ought preposition. But such legal ought (prescriptive) proposition is different from

scientific ought (descriptive).

If the phenomenon does not match with the scientific norm, such norm would be false. Legal

norm remains to be true even if there is non-compliance of the norm. legal norm is either valid or

not valid and not true or false. Therefore its validity is not contingent with its compliance.

If we look at Austin, if the suppose that bulk of the society is not obeying the law, such law

would not be a law anymore. Compliance brings law. In Hart, if consent is there, such law is law.

Therefore, all these scholars are related to a social fact. But kelsen says that law has to remain

valid even if there is non compliance. Even if law is immoral, they are still valid.
Norm is a system of hierarchy, and every lower norm derives its validity from the superior laws.

the highest norm is called the basic norm and all the other norms derives their validity from that

basic norm. norms do not derives validity from its compliance but from its compliance. This is

called as the normative structure and every layer of this structure is valid because of the higher

law and not the moral content and social fact.

The basic norm merely establishes a certain authority, which may well in turn vest norm creating

power in some other authorities. Basic norm of a positive legal order is nothing but the

fundamental rule according to which the various norms of the order are to be created. Basic norm

is a ultimate rule according to which the norm of this order are established are annulled, recivee

and lose their validity.

legal order is a structure of norms.

The function of the grundnorm is to provide validity to the other norms. This is a defined version

of the rule of recognition.

Validity of the basic norm? because prior to the present document, one will find some prior

document which allows the present constitution to be present. Therefore, constitution is not the

grundnorm. Constituent assembly came prior to constitution. Ultimately we reach some

constitution that is the first historically and that was laid down by an individual usurper or by

some kind of assembly. Grundnorm is a presupposition that the historically first constitution was

valid. It is the psychology of people which form the grundnorm.

Basic norm is not created in a legal procedure by a law creating organ. Basic norm is only the

necessary presupposition.
The structure of norm is dynamic and therefore, the norms are not static and they keep on

changing. Act of a judge is also creating a norm and ought proposition. But such norm is not a

general norm, it is a specific norm.

A parallel system cannot be established in this structure. There can be only one basic norm.

International law is a grundnorm or not: it is not because if it is considered the grundnorm, the

whole would be under the same legal order. Parallel systems are suggested by the author, one at

the municipal level and one at the international level. But in reality, international norm cannot be

the grundnorm

Taliban’s regime in 1996-2001:

1999-2001: prevej musharaff in Pakistan (replaced the PM and Prez):

Analyze from Austin, Hart and Kelsen

Change in grundnorm:

Why pure theory: universally applicable in all legal systems, does not changes with its violation,

independent from both social fact and morality.

There are the groups of usurpers who laid down the first laws of the society. Such body was out

of the normative structure and was not a legal body.

Case of Libya: king Idris, gaddafi, national transition council, general national congress, house

of representatives, new general national congress (what are the parameters for determining the

validity).

Gaddafi: Usurpers allied forces  UN  King Idris

International recognition??????

Satisfaction of the people in the ruler?????

Case of turkey: Recep Tayyip Erdogan (Current Prez), last year there was an attempted coup

Legitimacy of the trials of coup plotters in Ankara Court in light of the Gaddafi’s event.

Hart believes that when there is a forced changed situation, there might be some intermediate

period where the legitimacy such rule would be uncertain. Such confused stage may last for a

long time even. But eventually, a rule of recognition would be there and a new government could

emerge.

According to Hans Kelsen, a whole legal order is getting changed in the coup situations. All that

changes is the reason for validity of the norms as constitution is changed. The content of norms

is not changed.

There can be two situations: coup succeeds (new legal order emerges)

The principle of legitimacy is restricted by the principle of effectiveness. There is a grundnorm

whenever we find effectiveness.

In coup situations, new legal order emerges as the grundnorm is changed and therefore, all the

other norms, though having same content, have to tested on new grundnorm.

The test of legitimacy is effectivenss as one should be able to control the regime in a effective

manner e.g. having judiciary and police and parliament under control.
When the coup fails, the acts would be tested upon the older grundnorm and the behavior would

be tested on the touchstone of existing grundnorm. If coup succeeds, the acts would be tested on

the new grundnorm. The coup fails because it could not be effective.

From Kelsen’s point of view, Libya is divided into two countries as two grundnorm have

emerged.

Why constitutions are valid only if the legal order established on the basis of this constitution, on

the whole, efficacious. This efficaciousness can be tested on the ability to effectuate the other

lower laws.

How is Kelsen different from Austin. How Kelsen’s theory is different from Positive mark of

Austin.

When the preposition is arrived… it is arrived when the lower norms are effective.

If a successful coup happens, a new basic norm emerges but the other laws may remain same.

but this is even a new legal order. The content of the lower norms remains same, but their

validity is derived from the new basic norm.

If the coup succeed, their actions cannot be judged on the previous basic norms and therefore

there acts are not criminal.

The constitution is valid because the whole structure being validated by the basic norm is

effective.

The basic norms of the different national legal orders are themselves based on a general norm of

the international legal order…from the standpoint of international law, the constitution of a state
is valid only if the legal order established on the bais of this contitutiton is, on the whole,

efficacious.

According to the principle of international law, an actually established authority I the legitimate

government, the coercive order enacted by this government is the legal order, and the community

constituted by this legal order is a state in the sense of international law, in so far as this is, on

the whole, efficacious.

From Hart’s perspective, if the ruler is elected by the constitutional procedure, then he is a

legitimate rule.

From Kelsen’s perspective, the ruler would be valid only if he has effective control. The

legitimacy of his election or procedure by of his election is not so material.

Change of mindset of the people when new sovereign comes is the presupposition.

Case of Rhodesia: Ian Doughlus Smith was the PM, it was a self governing British colony, it

unilaterally declared itself independent (1965), (1965-1979: remain unrecognized state).

The state v Dosso

Uganda v Commissioner of Prisons

R v Ndhlovu

The court relied exclusively on all these cases. The effectiveness was measured by the judges,

not on the degree of obediences as it changes on case to case basis, it was measure on the unison

of the main organs of the state. As long as the parliament and the police and the military and the

judiciary and other important organs are together and are not fighting or revolting against each
other, such regimes is effective. If these crucial organs are in unison, people start following the

regime.

Efficacy determines the legitimacy and how it is coming is immaterial.

He does not any where states the manner in which this effective control should be there.

J W Harris: loyal judge or a legal science judge. Kelsen wants a judge to be a legal science

judge. Loyal judge has loyalty in the constitution under which he was made a judge. So he will

resign after coup or would declare everything as void. Legal science judge has to decide cases

considering the reality of the society and the efficacy of the regime. He observes the

phenomenon and reality and based on those actualities he decides the matters. When a new

regime is a good regime, it is good to be a legal science judge. But in mattes where taking over

the country is wrong and may not be apparently legitimate and therefore it is better to be a loyal

judge and good citizen but not a good judge. Good judge is a legal science judge.

Sovereign Rule of recognition grundnorm

Physiology Human Statement (written or A state of mind

spoken)

Genesis In principle -No one People- who feel the Circumstances(when

need of having it people find a ruler

effective they start

 believing that it is

legitimate)

Function Law making Creating authority Providing validity to

(allowing law the highest source of

making/adjudication authority in a legal

and change) order.

Can it change Yes No (if it changes, the Yes

whole reason for

having such rule of

recognition goes

defunct)

When do we need to Every day. But, Every day. But, Every day. But,

understand these thing specifically during the specifically during the specifically during the

times of uncertainty. times of uncertainty. times of uncertainty.

How to discover By observing, the By observing By observing

focus is in finding out

certain featured.

Who discovers The authorities who The authorities who The authorities who

are confronted with are confronted with are confronted with

the questions of the questions of the questions of

legitimacy of legitimacy of legitimacy of

 laws/regimes laws/regimes laws/regimes

(Courts/international (Courts/international (Courts/international

community) community) community)

What is it that the Obedience by the bulk Prior consent of Effectiveness of the

authorities shall be people for its Ruler to run the

looking for existence system. It is similar to

obedience by the main

organs of the country.

Criticism:

 Initially he starts by saying that his theory is pure, when we reaches to the grundnorm, it

becomes a social fact.

 This theory is so neutral in describing the phenomenon of the reality that it may justify

any regime. His theory of legal science judge supports this claim. Hans Kelsen believes

that loyalty of the judges should be to the grundnorm and not the constitution. If

Constitution changes, judge should not resign. A legal science judge will say one who

comes to power and who is effectively controlling the people, would be a legitimate ruler.

The goodness or badness of the rule and rule is immaterial. This means that a legal

science judge might not be a good citizen as he accepts something very bad as legitimate.

If one blindly applies this theory, on might legitimize the bad regime.

The best description of reality is given by Kelsen out of all positivists.

In Austin’s theory, the bulk should be obeying the sovereign’s command whereas in Kelsen’s

theory, the major organs should be obeying the sovereign.

Natural law

natural law

greek medieval modern

Main author of medieval period: St. Thomas who gave the difference between eternal law and

natural law.

Thomas believed that there is eternal law which binds all of us e.g. law of motion (mango seed

will only give mango tree).

Gustav Radbruch: five minutes of legal philosophy (1945); statutory lawlessness and supra

statutory law (1946): An immoral law is not law. Law and morality have no connection and

was a pure positivist. When he witnessed the atrocities of the Nazis and changed his stance. He is

called as the bridge between positivism and natural law school.

The validity of law cannot be exclusively based upon a factum of power. In positivism, the

validity is based on power. Power justifies the law. Radbruch disbelieves this proposition. The

validity depends upon some intrinsic feature of the law and contents of the law. There are three
thing that the law does: public good (Purposiveness), provide certainty in the system (though it

may be a bad law, but it makes the circumstances certain) and justice (certainty and justice are

same as certainty is the dimension of justice or an aspect of justice). Out of these three, justice is

the highest virtue and certainty is second. There might be legislation which are providing

certainty but not doing justice. E.g. legislations made by Hitler. When certainty and justice are at

clash, he suggests a formula of those times, i.e. if the law is properly made, the positive law

secured by legislature and power, takes precedence even when its content is unjust and fails to

benefits the people, unless the conflict between statute and justice reaches such an intolerable

degree that the statute, as flawed law, must yield to justice.

In order to maintain certainty and to have clarity in the system, legislation which do no public

good or justice is still if it provides certainty irrespective of its content as it is made by due

process of law, but if the injustice done by such legislation reaches to the level of intolerability, it

cannot be called as a law. Then it is justice which should prevail and not the law.

Justice:

 Equality

 Protection of human life

 Proportionality in punishment with regard to the crime

When these above features are absent grossly in a statute, it is referred as statutory lawlessness. It

is impossible to derive a accurate formula for judging this grossly violation of the above feature.

No sharper line can be drawn and it depends upon case to case circumstances.

Supra statutory law means presence of respect for equality, human life and proportionality in

punishment. Statutory law should be controlled on the basis of supra statutory platform.
Some violation of these feature, does not result into lawlessness. Such violation should be

intolerably high and there should be gross violation of these features. The prima facie

assumption is the validity of law if it is made by following the due process of law.

National socialist law would extricate itself from the essential requirement of justice, namely, the

equal treatment of equals. It thereby lacks completely the very nature of law; it is not merely

flawed law, but rather no law at all.

Certainty: laying down rules in advance, even a part of justice.

When there is a tussle between justice and certainty, which should prevail is determined by the

Radbruch’s Formula. Validity primarily comes from the source.

Whether a legislature is so designed that there is no effort at all to do justice, then it is gross

violation. This situation is statutory lawlessness.

The presumption should be in favor of validity of the legislation. He accommodates both

positivism and naturalism.

Case: Streletz, Kessler and Krenz vs Germany, 2001

The law of east Germany can survive only for as long as the state authority which brought it into

being in existence.

The requirement of objective justice, which also embraces the need to respect the human rights

recognized by the international community, makes it impossible for a court to accept such

justifications.
Where a statutory provisions was intolerably inconsistent with justice, that provisions should be

disapplied from the outset.

Interpretations to the east Germany’s law was not law as they were devoid of the content, i.e.

human rights.

When they approached the European Court of Human Rights under Article 7(1).

Arguments: appellants: the conviction after the unification was not foreseeable, the presumption

is that the country is going to be there in future even and therefore the laws of the country should

apply; never prosecuted in the GDR; border policing regime had essential to preserve the

existence of the GDR; no international body had censured the GDR for violation of its

provisions, even if that was the case, there was a fundamental difference between state’s

responsibility under international law, on the one hand, and the criminal responsibility of an

individual under domestic criminal law, on the other; in maximum jurisdictions, majority to state

access to the border was forbidden or strictly regulated and use of firearms is authorized if such

person do not heed to their warnings.

Defense: anyone could have foreseen that the killing of unarmed fugitives who were not a threat

to anyone might give rise to criminal prosecution under the relevant legal provisions,

notwithstanding the contrary practice followed by the GDR regime.

Court: it can not be criticized for interpreting the legal provisions in force at the material tie in

the light of the principles government a state subject to the rule of law. GDR’s law were not

covered by the Section 7(1).

Positivists: justice is external to law, presence of justice is not required, content of law is

relevant, judges are expected to apply the law neutrally and impartially, unjust law is valid law,

authorities implementing such law cannot be held guilty, like in grudge informers case: judges

cannot be held guilty as it is only impartial application of law.

Naturalist: justice is internal to law, content of law is relevant, unjust law is not a valid law, if

authorities are applying the laws which are devoid of such content are guilty.
 L. L. FULLER

Nature of Radbruch’s theory is very subjective, fuller claims that his theory is objective.

Law and morality have an essential connection. He is disturbed by the fact that no one knows

what is morality. He explains morality in the context of law. He states that law is connected to

morality in two ways: morality stands external to law (law is made to achieve certain purpose

and objective, law functions like a tool in the hands of the legislator, purpose independent of the

law could be moral or immoral, the morality of law is different from the purpose for which the

law is made. When the purpose is unlawful, morality is relating to law externally and its immoral

law); morality relates with law internally (independent of the purpose, purpose may be lawful or

unlawful, the word morality means having certain necessary conditions present in the legal

system: generality, promulgation, prospectivity, clarity, absence of self-contradiction, possibility

of compliance, consistency through time, congruence between official action and declared rules;

irrespective of the purpose and subject matter, if these points are present, law would be internally

moral, content of law may be bad, but then even if the above points are achieved, it would be

moral). He states that law must be internally moral, these 8 desiderata are the essentials of the

law and if the law is devoid of these 8 desiderata, then the legislature has failed in its duty and

the morality of duty is not achieved. More and more one satisfies these conditions, one makes

better and better laws. These 8 desiderates is one single scale to understand what is law and is it

moral or not.

He believes that from legislature to legislature, there would be maximum satisfaction of these

conditions but some of these conditions would be failed occasionally. But if the contents are

grossly devoid of such desiderates, then the legislature has failed to create a legal system.
If a legal system by and large achieves the maximum conditions, then such legal system is not

the utopian legal system as all the conditions are not fulfilled.

Morality is the procedural safeguards, i.e. achieving the 8 desiderates.

A total failure in any one of these eight directions does not simply result in a bad system of law.

Everything cannot be called as law like small ordinances, and administrative orders as these may

be kept secret from the public.

If one violates one condition today, tomorrow the legislature may violate the other conditions as

well and it will result into cumulative effect of violation.

The stringency with which the eight desiderata as a whole should be applied, as well as their

priority in ranking with regard to the specific law and its purpose.

Natural indicates something which is beyond our control: fuller states that his theory is the

procedural version of the natural law, he is not concerned about the substantive contents of the

laws. he focused on procedural version because substantive law is always disputable, because it

is subjective as to the specific persons and their nature. But procedural law can never be

disputed. He is trying to avoid the controversy of the natural law with regard to the substantive

law.

He does not prescribe any standard for judging the external morality.

How can we claim that eight desiderata ensure morality? Morality means treating people with

respect and concern. When a legal system no matter what the contents of laws are, when the
legal system satisfies these conditions, the result is that people are given ample of opportunities

to organize their life. When these factors are achieved, it shows a particular conception of the

human mind, the conception is that the people are intelligent enough to organize their life when

the rules are told beforehand. No matter what the rules are, if they are told to the people after

satisfaction of these factors, states is treating people as capable of making autonomous choice

and treats people with respect and concern and state action can be called morally good.

One cannot run an immoral purpose with the aid of an internally moral law!

These 8 conditions are psesent, is it possible that the state is satisfying these conditions and still

the state is not treating the citizens with respect?

Those 8 desiderates performs two functions:

 Creating law

 Serving as a test for determining whether the law is good or bad.

If the ultimate objective of law making is bad, then law would be devoid of internal morality.

Kramer: these 8 desiderates are morally neutral.

Simmonds: if the legislature want to treat citizens with respect, they have to follow these

desiderates.

Prudential reasons: bases of awareness and thoughtfulness. They are primarily guided by self

interest and are morally neutral.

Moral reasons: guided by the interest of society and other than the individual himself.
Morality of law denotes respect for the citizens.

Presence of these 8 factors ensures self determination and the state indicates respect in a manner

that they treat the other person as intelligent persons.

Kramer Simmonds debate:

Fuller: morality is realted with law externally as well as internally; internal morality ensures the

presence of rule of law; if the substantive aim of law is evil then it is bound to affect the internal

morality of law; rule of law is linked with the idea of self determination; rule of law ensures

freedom for the citizenry; it exhibits respect for the citizenry; thus rule of law is a moral ides; if

there is rule of law only then there is law; if there is rule of law the rule is morally good.

Kramer’s Position: rule of law does not provide any autonomy and self determination (Gunman

example: the question of autonomy cannot be answered without reference to the substance of the

rule and not only the manner in which the law is laid down, which may be by fulfilling the 8

desiderates); the adherence to rule of law may be due to prudential reasons and not due to any

respect for others (Smoking example). If these are prudential reasons, the regime may be

working for the self interest. If the reason for adhering to rule of law is to show that the regime is

good, this might be a testament to the moral significance of the rule of law. However, that is not

the case. Following rule of law for prudential reasons are the actions which are morally neutral

and not morally good; the reason for an evil regime to stick to rule of law shall be: to give clear

cut directions to citizens, to foster incentives for obedience, to enable officials to coordinate their

activities. All these are prudential reasons; officials in repressive and exploitative regimes have

sold prudential reasons to abide by the rule of law. Even a bad regime would not want that in the

eyes of law, regime should be morally good. If extra judicial punishments are there, then it may
create a situation in the minds of the citizens that even if they do follow law, they might be

oppressed by the state. Therefore, finding no incentives to follow the rule, the citizens may keep

on violating the law. Therefore, it’s in the self interest of a regime to follow rule of law to keep

on receiving obedience from the citizens. (Probability theory)

If one really wants to ensure freedom, only these 8 desiderates are not enough, laws should also

be substantially good. Therefore, what matters is not the procedural morality but morality of

substantial content.

Simmonds: the idea of freedom has many meanings or perhaps many dimensions. The core of

freedom is not being in somebody else’s power. [Slave owner’s example]: if a slave owner does

not prescribe or proscribe the slave’s conduct, can we therefore conclude that slavery is not

inherently incompatible with freedom? Does that mean slavery is not unfreedom?

In rule of law the range of options with a citizen may be limited but those options are determined

by general rules. that makes citizens free from the power of others. They are governed by rules.

rules necessarily impose some limits on the powers of the officials and some limits on the duties

of citizens. Otherwise the systems cannot work. Hence there is liberty (in the sense of freedom

from the powers of others)… intrinsically linked with the idea of rule of law.

Rousseau believes that freedom is not the unlimited license to do anything of one’s choice, in

state of nature there is not freedom as people have different powers and thereby different control

by one animal over animal. In state of nature, the rule making is done by powerful for the

powerless. The essence of freedom is that when one is governed by the rule which is made by

oneself. The idea of freedom is linked with the idea that who is laying down rules for you. No

matter how stringent the rules are.

Simmonds believed that the Gunmen example is an example of state of nature. And in this

understanding of freedom, rule of law ensures freedom. This freedom may be less or more in

different countries.

With regard to the point that rule of law is serviceable to both good and bad regimes on the basis

of prudential reasons, Simmonds believes that:

Salute Example: an evil regime need to retain power. It needs to suppress dissent. If the regime is

following rule of law the dissenters may do subtle acts that shall amount to a compliance with

the definition given in law but yet not a real compliance with the law.

Continuous amending the legislation may derive a conclusion that the regime is weak and an evil

regime will never try to show that they are week and therefore, sooner or later, such regime is

bound to violate the rule of law and provide for extra judicial punishments. He believes that rule

of law does not serve evil regimes. Rule of law conditions are antithesis to the effective working

of the evil regime.

Simmond’s idea of what is law: differentiation between class concept (e.g. bachelor) or

archetype concept (not qualifying with the definition but it is approximately matching the

definition)(e.g. triangle). After certain threshold is cleared, anything could be a law. Anything

above such threshold would determine that how good that law is. Following the 8 desiderates, to

a good extent would make a law, a legal rule. Law is an archetypical concept. Whereas the

positivist believes that law is a class concept.

 Ronald Dworkin’s Theory [Law’s Empire] [Taking rights seriously]

Do judges make law?

Traditional view: they are mere orator of law and not the creator of law.

Separation of power

Realism (how we in reality governed): 1. American realism school of thought: we are governed

by the law which is laid down by the judges. Law making is done by judges in all cases. Justice

Holmes and Jereme Frank: if one want to understand what law is, one has to look it from the

view of a bad man. Such man is not concerned about what is written in the legislature, what he is

concerned about is how the judges is going to interpret the language in his case, the manner in

which the judges interpret the law, it determines the rights, duties and liberties of the such

person. Judges can still deviate from the precedents. In every case, new parties are governed by

new rights and liabilities made by judges. This affirmation to do judges make law is unqualified

and unconditional. The Act made by legislature is not a law; it is a source of law. From such

source, it the judges who extract the laws. The consideration in making law is the policies and

morals and by such contention they asserts that law and morality is not separable.

2. Scandinavian realism: read up on this!

HLA Hart to defend positivism claimed that words of the stature have open texture. It means that

words have a settled meaning and a shared understanding to a extent and beyond that words do

not have settled meaning. Whereas realism indicates that the judges have the discretion to decide

depending upon how he reads the legislation. Words would have two area, one regarding the

meaning of which there is no dispute which is called the core area and in such area the judge has
no discretion and in the other area is penumbra and which is open to judge’s discretion. Hart

believes that the idea of judicial discretion is not applicable when the words of the legislation

falls within the core area. When the case is of penumbra area, judge can employ two ways:

 Mechanical way: by applying ejusdem generis, here the judge has not applied his mind as

to nowhere the judge have included moral considerations. It might be a bad way of

deciding the case, but there is no fusion between law and morality;

 Judge may look into moral and policy considerations and considerations like purpose and

intent of the statute, which means judge’s decision is mixed with morality. When we say

that judge’s decision is law and when realists say the law and morality is inseparable,

they commit a major mistake. Because even if the judgment is guided by the morality,

such moral considerations do not independently becomes law. Hart believes that judges

apply the morality because the legal system allows the judges to do so and therefore there

is no such connection between law and morality.

Even if the policy of the state is immoral, one cannot say that there is a fusion between law and

morality but even then such judgments are valid.

Fuller: all claims of Hart are wrong. He gave the example of ‘no vehicle is allowed in the park.’:

can one enter the park on roller stake, Hart says that such roller stake case falls into penumbra.

But fuller established that every case is a penumbra case and no case can be called as the core

case. He gave the example that, let say an army truck of foreign jurisdiction is captured and have

been put on a pedestal as a memorial in the park. To answer that whether the rule is violated or

not, it is irrelevant to look into the meaning of the word vehicle and the court would be looking

into the purpose of the statute and the statute as a whole and here come the policy consideration.
One cannot consider the meaning of the words in isolation and the whole context gives the true

meaning of the law. Additionally, he gives another example: sleeping on a platform is an

offence, one person has purchased a ticket and such train is delayed and while sitting on the

platform he sleeps, in a parallel situation, one person brought his bedding and just lay down but

he is awake at the platform without a ticket. Fuller says that if one looks into the entire context of

the statute, it is the second person who is violating the statute and therefore every case have

moral considerations.

Dworkin’s Idea: when Hart concedes to the fact that in penumbra areas, judges uses their

discretion, he believed that if judges have discretion, that means that in the penumbra areas there

is no pre-existing law and rights and therefore in every new case judge will create new law.

Dworkin stated that this will violate rule of law and will lack certainty. If we believe that there is

a penumbra, then every time there is a retrospectively in law because we are supposed to be

governed by pre-existing laws.

He challenges the assertion of Hart as to law making by the judges because he proves that judges

never make law and that law and morality have inseparable connection.

If realists are correct or hart is correct, then it means that when one approach the court and put

forth his case and such person asks the court for interpretation of the statutory law and judges

make law at such moments. Dworkin believed that if this is the situation, one is never governed

by the per-determined law and every law being created by judges have a retrospective

application. Therefore, when fuller first says that law should be prospective and then he says that

every case is a penumbra case, this way he contradicts himself.

Rule of recognition empowers certain person to identify certain primary rules, they do so as to

lay down prospective law. In this way, he proves the Hart contradicts himself as once he says

that there is a rule of recognition and then he says that there is some penumbra area.

Dworkin provides that when one goes to law, he goes there for enforcement of the pre-

determined and pre-existing right. The court would not create the rights but will enforce the

rights.

The building block of the legal system is principle. Underlined principles of all such laws present

in the legal system is the building block.

Principles have a dimension of weight and dependent upon different circumstances, different

principles appears weightier and more reliable. Principles have a weight or gravity and which is

not constant, if all depends upon the fact that which principle gives a fair outcome.

He states that Hart’s theory is inadequate because it only deals with primary and secondary rules

and does not deal with the situation where there is absence of any rule. In such cases, Dworkin

propounded that the cases would be decided on the basis of the principles.

Dworkin stated that each case should be decided by principles. Even when the case is decided

only on the basis of rules, it is decided on a principle that ‘when rules are clear, cases should be

decided on the basis of rules.

Ricks vs Palmer: case of murder by the grandson for inheriting property

A theory of law must account for the existence for principles. Judgments are not based on rule

but on principles.
The nature of principles: principles do not have a fixed hierarchy; from case to case court will

choose one principle over other. Principles have a dimension of weight. They appear to be more

weighty in some circumstances and less reliable or weighty in other cases. They have a shifting

weight.

The judge should understand law as interpretation and integrity. Whenever there are hard cases

where dilemma to choose between different principles is there, here judge should find out all

such existing legal rules which are of the same character. Then discover the underlined moral

justifications of all such rules. What is that theory or principles which do justify the existence of

all such rules. Such underline moral justifications are the principles. Whenever the legislature is

laying down rules, they are advancing moral principles through such rules. Further, pre

interpretive stage (finding all the similar laws); Interpretive stage (finding the moral theory

which the state is advancing); post interpretive stage (judge is only required to advance the

principle which is already existing and case should be decided in such a manner that the

principles should not be nullified: Law as integrity. This is similar to checking precedents).

Difficulty: it is possible that after the first and second stage, a judge is discovering two equally

applicable principles. Dworkin states that here judge should exercise the concept of “fit and

appeal.” Fit: the principles which are accommodating more circumstances or which is the wider

principles or which principle is being followed in more cases. Such moral theory would be

superior moral theory. But if two principles are equally fitting, then the judge should find out that

which principle shall be shown as more morally appealing in the circumstances. Task of judge: It

is not just advancing the moral principles; it is showing the principle in the best possible manner.

It should be appealing. It should be presented in the best moral appeal.

He further provides that if judges do apply this exercise, then there is only one right decision.

Therefore this theory is also called ‘one right answer’ theory.

Her compared judge to Hercules (a powerful person)

The reason underlined any law is a moral consideration.

Principles would always be moral principles or they would be advancing political theories. In

the process of adjudication,

One has to understand the moral or political reasons of the laws by participating in such

practices. One cannot understand the reasons underlined the laws by merely observing the rules.

a theory of law can never be descriptive. A legal theory can be made only if one participates in

the law making process. The real more principles that a practice is advancing can be understood

properly in the sense of the principle which it is advancing only if one participates in it. A legal

theory can only be participative and cannot be descriptive.

Advantage of doing this: in the vacuum area, when one is advancing principles, one is advancing

something which is pre-existing. Through this process the parties are not taken by surprise by the

judgment. The possibility of the prediction is there. Retrospectively is curbed down. It makes

law prospective in nature. Additionally, law is inevitably intercoined with the moral and political

principles. Meaning therby, theory of law can never by separted from morality and political

principles. It is only these rules, which the judge advances and judges cannot take a drastic

diversion from such principles.

Disadvantages: every legal community will have a different kind of moral and political

principles and therefore the theory of law would differ from legal system to legal system. There
would be no universal legal theory. In a given context, the right answer in one legal system

would be different in two different legal systems. Dworkin’s theory is not a theory of law, but it

is a theory of adjudication and is talking about interpretation of the laws. additionally, as he was

consistently saying that any theory of law lacking of principles is time, in the same time, in

Dwokin;s theory even, in the pre interpretive stage, one has to find out the pre-existing legal

rules and there he accepts that there are certain pre existing rules. For indentifying such rules,

one can apply the concept of rules of recognition. Hart’s apply is to be applied first and then only

Dworkin’s idea can be applied.

Historical school: read from Robert e rodes’s article

Historical school: ‘German romanticism,’ German indicates the entire region near German, this

region have a typical type of understanding as to who we are where it is believed that all the

individuals are collectively one entity. Society is a living entity. When looks at society as a living

organism, it leads to various implications in subjects like art, laws, architecture etc. Historical

school is the expression of German romanticism in law.

It all started with a proposal of Tribot that one should codify Germany’s rules. Before this, it was

governed by customary rules. he said so because in France it was for the first time a code was

created named as Code Napoleon, containing all law of France. He was inspired by the fact that

many other countries like Belgium were coping Code Napoleon. Now, German region was

different due to romanticisms from the rest of Europe. They never considered themselves as the

part of rest of Europe and therefore they believed that if any foreign law is adopted on them, it
will lead to difficulties and he believed that their law should come from inner spirit and common

consciousness (Volksgiest) and therefore code Napoleon should not be adopted.

Seveiny wrote a paper to rebut the proposals of Tribot. He propounded that law in its spirit is

volksgiest. He said that law should be primarily customary and should come from inner

conscience. There can be a codified law but such law should be after a lot of empirical research

where one should discover the spirit of people and in accordance to which law should be made.

Von seviny’s papers was so influential that codification of the laws in Germany was halted the

idea of codification of law for years.

Any legislation contrary to the common consciousness is bad, irrespective of the quality of such

common consciousness. E.g. Dowry laws in India

There might be more than one common consciousness, legislations may be trying to strike

balance between the conflicting consciousness. E.g. workmen compensation laws

It is even possible that legislations may even lead to emergence of common consciousness. E.g.

sati

There are many areas where there would not be a common consciousness as person may be

having no knowledge of such fields. Therefore such idea of common consciousness have

application to only a limited filed of law like family laws and laws affecting society directly and

have inclusion of such people. but in the fields like custom, import and export, common

consciousness may not be there.

 Economic analysis of law

Origin lies in utilitarianism, its oldest version is of Jereme Bentham. Every human being is

governed by two things: pleasure and pain. So all the time in doing whatever one is doing, one’s

actions are controlled by feeling of pain and pleasure. One tries to do such actions which tend to

increase out pleasure. One’s activity is guided by the desire of being happy. Therefore, it is just

and right thing to do. It was used by Bentham to evaluate laws and policies. A policy which

enhances the overall happiness of the society is the just policy. It is natural and it should be done.

Law should make people collectively as well as individually happy.

In this idea, there is a problem of measurement of happiness. In the mid 20th century, this idea

was picked up by the economist of US and they replaced the idea of happiness by the idea of

wealth. Instead of happiness maximization, wealth maximization should be the criterion. They

believed that wealth is the indicator of happiness. In economic analysis, to determine the quality

of the laws, they looks into the fact that whether the laws are increasing or decreasing the wealth.

Calder Hicks Formula, Pareto efficiency test: certain tests to measure wealth is making people

happy.

it is very much used in the tort cases.

#R W Dias

Richard Gosman