GUSTAV RADBRUCH

THE BRIDGE BETWEEN HARD CORE NATURALISM AND POSITIVISM.

The question remains the same: Where does law quality comes in a rule?

He was a Minister of Justice in the German Weimar Republic. He was also a positivist when

he started writing, but then changed to naturalism when he saw the German machinery. He

understood that there can be lawlessness even in the presence of law. “Statutory lawlessness

and supra statutory law”

Positivism is of itself incapable of establishing the validity of statutes. It is sufficient to prove

so simply because it proves that there is power behind the law to make it prevail. Power

never serves as the basis of the ‘ought’ of obligation.

Obligations and legal validity must be based on a value inherent in the statute.

This starting point is the same as that of Hart when criticized Austin. When there is power

behind a rule, you are obliged to follow that. It doesn’t mean that there is an obligation. There

is an advantage when the positivism is considered- there is clarity in the law-making.

Then he says that legal certainty is not the only requirement. There are two other values:

purposiveness i.e. the law must serve a purpose and justice i.e. some good must be done to
the society. In ranking these values, we assign the last place to purposiveness of the law in

serving the public benefit. By no means is law anything or everything that ‘benefits people’.

E.g.: When you are forming a contract, need to know basics like consideration, - This brings

clarity to the system.

When you kill all obese people, it would achieve a good goal of a healthy society. Suppose

you make a legislation regarding that, the certainty and purposiveness are satisfied as the

legislation is going to serve a purpose. 3rd thing to be satisfied must be justice.

According to him, he puts them in hierarchy- purposiveness is at the lowest level, certainty at

the second and Justice at the top.

“Certainty is a dimension of justice.” If you tell people what to do and what not to, this is

somewhat close to justice or even partially is. Certainty is what he calls formal justice and

there is another category: real justice.

Radbruch’s Formula: Objective of it is: When a particular statute even when passed by

proper authority is not a law? Answer to this question is this: We will find many occasions

when something is satisfying all conditions from a positivist point of view, here the

requirement of certainty is justified. If the law is not made as per procedure, it is not law as it

is not passed by the legislature which is the procedure.

Certainty will have precedence over justice: when he says that even when the law is unjnust,

certainty will prevail, he also says that when the conflict is of an intolerable degree, then

justice prevails over uncertainty and the law becomes ‘flawed law’.

Procedure:
 1. Certain- If all laws allowed to be ‘not laws’ even with slight deviations from his

theory- there would be uncertainty. E.g.: If only one person is not following the law,

then just because of that, it can’t be said that the law is not a law.

2. Whether doing justice or not?

3. Match certainty and justness, then decide whether tolerable or not.

Real justice includes (they are examples, it is not exhaustive):

1. Equality- If not present, it lacks the very nature of law

2. Protection of human rights

3. Proportionality in punishments.

You have to see how much inequality, violation of human rights and disproportionality needs

to be checked. If all are slight, it should still be called a valid law. If all grossly violated, then

the tension between justice and certainty is intolerably high.

(Extra) Hart: The morality of the society would seep into the constitution which is a fact as

per his theory- it will reflect the convictions of the society.

In the last part of his paper, he applies his own idea to the legislations passed by Hitler:

Points out that even if the legislations were in accordance with the certainty. The legislations

were having death penalty for eggs and more bread than a certain amount in your house. Too

much of disproportionality in punishments, gross discrimination between Jews and

Christians, for having more properties and also gross violations of human rights: Those

examples are of statutory lawlessness.

Herein comes the idea of supra statutory law- Justice.

How is he a bridge between hardcore positivism and naturalism?

Making protection of the legislations even when there are slight deviations. Follows the path

upto a ceratin point, then leaves a path. He understands content via the use

Good points:

In Hart’s point of view, the consent of the people matters which makes even laws in Nazi

Germany valid as there can be a consent of even 90% of the society- yet the law may be

illegitimate.

Positivist criteria’s standard is the agreement with the source of the law- If the source is

correct like Parliament, etc- then the law is a valid one.

Criticism:

1. Subjectivity in the formula as what is the ‘intolerable’ can’t be decided objectively.

Who will decide? Courts may use it to decide that statute is not law.

Streletz, Kessler and Krenz v. Germany

1950s-1980s: After WWII, there was a division of prize that was Germany- a communist and

capitalist division between the Eastern bloc and the western bloc; The Eastern Bloc being a

Democratic Republic supporting capitalism and The Western Bloc was under the influence of

communism.

After some time, there existed a lot of difference in economic equality and the West was

doing really well. The desire was to cross border to the Western part- the same as is

happening in South Korea and North Korea. East Germany was under the apprehension that it

would lose the brains to Western Germany and therefore wanted to use its population: If

intellectual classes migrate, the progress would become slow and thus it is in the interest of
the country to have them. Thus, they came up with Border Policing Regime which shot a lot

of people.

The three people accused- Fritz Streletz, Heinz Kessler and Egon Krenz: They were

prosecuted initially in trial courts of the country- the highest court of Germany.

Laws of East Germany were something like this: Article 30(2)- Restrictions must be

prescribed by law liberty freedoms, etc. The right can be restricted to only some extent.

There was illegality in crossing border punishable with 2 years of imprisonment. If people

following orders of superiors, then the officers won’t be responsible. Police Act: If imminent

commission or continuation of a serious offence- then the officer can use fire arms which

should be used only after warning. There is no restriction to prevent killing of person.

Orders to the unit: Arrest border violators or annihilate them. Alternatively, there could have

been orders- Audio tape can be put shouting warnings and you needn’t shout. Or you can

shoot at legs and not vital organs. Or there can be automatic weapons installed in unmanned

areas.

The plea of accused is: The earlier laws’ pleas should be allowed. The Federal Constitutional

Court said that a law remains a law as long as the State authority which brought it into being

actually remains in existence. Since North Korea is surviving as a state, then we accept the

laws that they have created.

Law is not valid just because state backs it- this is

Legislature was capable of imposing gross harm by statute so that where a statutory provision

intolerably inconsistent with justice, that provision should be disapplied from the outset.
Germany is part of EU- European Convention on Human Rights- Euro Court on Human

Rights- which can be approached when you feel that your rights have been violated- So the

Article says that the punishment can’t be more than that which was prescribed at the time

under law.

Arguments

1. Their reunification of Germany was not foreseeable

2. They had never been prosecuted in the GDR

3. Implementation of the border-policing regime had been essential to preserve the

existence of the GDR- Every country has a border policing regime

4. No international body had censured GDR for violation of its provisisons and that even

if that had been the case there was a fundamental distinction between a State’s

responsibility under international law, on the other hand, and the criminal

responsibility of an individual under domestic criminal law, on the other.

5. In the majority of States access to the border was forbidden or strictly regulated and

the use of firearms by border force authorized if person hailed by them did not heed

their warnings.

6. Another argument by one guy- I didn’t participate in a single meeting og the Bureau

during which the order to use firearms had been given.

In 1999, Germany was unified: East and West Germany- Berlin Wall broke down- Legal

system got combined. India is a contradictory example: One legal system divided into 2.

Some people were charged for murder- Earlier part of one legal system and now a part of a

new legal system. The new legal system has a completely new moral basis. Can you punish

them? Radbruch’s formula was used.

 FULLER

Question that he answers: What do you mean by morality? How morality plays a role in

determining the validity of legislations?

Morality was divided into 2: Morality of duty (Grammar- what you write can’t be called

prose or poetry) and Morality of aspiration (the flowery language, eloquence, etc); morality

of duty is the essential to social life and of aspiration is that of utopia.

Refer to morality Diagram at end of CT Notes

Morality is a scale- IT can lay down the minimum criteria for law-making but aspiration to

achieve more should be the goal towards which legislators strive.

Law and the purpose of alw-making are 2 different things: What you want to achieve can be

independently assessed as moral or immoral. Law can be assessed thus as well.

E.g.: A car- disintegrate power- four wheel- steering, gear box, roof, moves. If you remove

seats, is it a car? May/may not be. Can there be a car without seats? Instead of four- 3 wheels.

Doesn’t have a steering wheel- Is it a car? Suppose law says- “If your car is parked on the

road in front of your house, you have to pay certain amount of tax to the state. If you don’t

then a penalty shall be imposed.” But you have had a car for 3 years- some parts of the car

itself are stolen- there is just a structure lying without an engine/ a/c- it can’t be driven at all.

Are you liable to pay the fine?

Before getting into taxation, whether it is a car or not needs to be determined- formulate the

basic things in the absence of which the object can’t be called the object itself. Fundamental

things to be present for the thing to be called a car. This is a duty- minimum requirement that

must be satisfied for law-making. What is law? The expression must have some basic things

present in it- in absence f which it can’t be called law. If not, then duty part of the law is
absent. I must incorporate in the law as a legislator the things necessary or else I can’t “claim

what I have made is a ‘law’.

We should strive for ideal conditions as well. A car- besides the basic things- there can be

other things in my ideal car without which also my ‘car’ would be a ‘car’.

Morality of duty, if breached, can’t result in creation of what is called ‘law’ but the breach of

morality of duty still leads to the creation of law.

Classification of Morality in relation to law:-

Preventive detention: Because you want to prevent crimes, good health- can be achieved in

various ways. Morality of target is different than morality of instrument- may even be in

conflict of each other- target you want to achieve may be moral and the instrument you use

for it may be immoral. All old and sick persons should be killed for it. This may be immoral.

External morality- Morality of ambition- What you want to achieve in society? Fuller is not

concerned about the external morality.

Internal morality- is what should be important for law. Aim of law may appear to be

immoral: May be to eliminate Jews from society. If you satisfy the internal morality, then you

can never get the external morality to achieve bad results.

What is the internal morality fuller is talking about?

They are 8 conditions which must be satisfied which he called desiderates: (GPA PC x2)

1. Generality- Should be made for everyone- Not applicable on one and not on another-

no discrimination basically

2. Promulgation- Law should be told to the people

3. Prospectivity- Laws should be made for future (No retrospective criminalisation)

 4. Clarity- Exact expectation of doing and refrain from doing should be clear

5. Absence of self-contradiction- Two provisions can’t demand 2 different things in one

legislations (Talking about legal system and individual legislations both)

6. Possibility of compliance- Human nature should be kept into mind. We can do some

things and not others. Whether it would be complied or not? (Not about acceptability

to the people but about possibility).E,g,: Kaushir Sir making a law about deducting 3

marks of students not being able to jump 10 metres.

7. Constancy through time- It shouldn’t change very frequently- so that people know

what they are doing is in conformity with law

8. Congruence between official action and declared rules- Officers responsible for

enforcing law, must find people who are actually doing something wrong. Officers

responsible for reward- must do the same as well. Shouldn’t deviate from demands of

law.

Hitler’s Nazi Germany

Law is a precondition of good law. These 8 conditions serve as a scale whether you have

achieved your objective or not- the duty or not. If 8 factors violated- you fail in morality of

duty. How much compliance of conditions is required? As much as possible.

If you totally fail in any one condition- then you will fall off the scale between morality of

duty and aspiration, it can happen sometimes. It won’t be called a legal system at all.

If you occasionally fail in some condition, then you have created law and Fuller accepts

occasional violation of any of the 8 conditions. The legislator’s duty to make law is fulfilled

when the 8 conditions are satisfied but how good is your law would be dependent- For the

legislator to reach utopia, you would need to have fulfil all the 8 conditions for a long period

of time. If compromise on conditions, then you can’t as it wouldn’t be ideal.

Morality external to law

Radbruch and Fuller- Intolerable degree in Radbruch. Idea of law-making is connected to

power- correct source- the sovereign- Fuller is providing one scale (the degree) for answering

two different questions-

1. What is a valid law and

2. What is a good law

Quality of 8 desiderata:-

1. Infringements of legal morality tend to become cumulative- If you do something

wrong, then you may have a chance of doing it again. Drinking- smoking.

2. TO the extent that the law merely brings

3. IT will depend on different legislations- how much adherence to the 8 factors is

required. Criminal law- prospectivty more important than Tax legislations would be

more important than obedience

4. Conscientous legislator

5. Another one

What kind of natural law is Fuller’s theory propounding?

He doesn’t say anything substantive. His version is a procedural natural theory. What he has

called internal morality of law is a procedural version of natural law. Procedural = Ways in

which a system of rules for governing human conduct must be constructed and administered.

Fuller avoids conflict by not stating what should be the content of law.

Q.- If you satisfy all 8 conditions just to the basic minimum level, what you achieve is a

morally good law. If you satisfy them to the best of your capability, then you achieve a

morally very good law. The “goodness” is related to the degree of compliance with these
conditions. If you have completely failed in any one, then you’ve failed the duty of making

the law.

8 desiderata ensure morality of law. Why not procedural safety in law?

How can we answer that the eight desiderata ensure morality?

If the state ensures that the law is in conformity with the 8 questions, how is the state

conceptualizing citizens? What kind of image does the State have for citizens? Ruler says you

are guilty. But why the fuck am I guilty? Because you purchased 2 kg rice. But I didn’t know

that purchasing rice was illegal. But you pay the penalty, nonetheless.

Because you can’t finish a 100m race in 3 seconds. You should have done it.

All of us know rules of game and then we are allowed to advance our life in our freedom

allowed by the rules. People are intelligent and autonomous enough to organize their lives.

“Humans is or can become a responsible agent cpable of understanding and following the

rules and answerable for his defaults.”

- Fuller

A Dog can never understand that’s why you put him in jail if he does something wrong. If the

other party is intelligent enough and the rules are laid down and you play as per the ruels, you

show respect to citizenry. As they show respect, they are moral. No matter what the content

of law is, you can’t deny that you are respected by the state.

If disrespectful, then the State doesn’t fulfil its duty of making laws. It’s like not making law

at all. The criteria of respect are these 8 factors. It is like Kaushir Sir speaking to students in

an abusive language.

“Every departure from the principles of the law’s inner morality is an affront to man’s

dignity as a responsible agent.”

- Fuller
Can humans understand the good way of life? Aristotle allowed slavery on this very basis.

According to him, humans are incapable of understanding.

Q.- If a legislator wants to achieve a bad thing, does it necessarily have to compromise on

external morality?

The new-borns being killed example. It is not concerned with

13/9/2018

1. Does India have a law on dowry?

2. Is there a rule of law in India?

Explain difference.

If you have to answer 1st question, what will you look for in the Indian legal system? To

convince an alien, the evidence you will provide to him will be a statute. Does Fuller help us

in answering the second question?

From Kelsen’s POV- you are looking for a norm against dowry- in the dowry prohibition act-

but if people are not following the law and it is not effective- there is no rule according to that

law, therefore, there is no law at all.

From Fuller’s point of view,

We are looking at some principles and not the effectiveness- We are looking for the 8

desiderata- we should look for principles existing in the system- According to him, you won’t

look for the presence of a norm you will look for the principles.

Q.- Do the 8 desiderata ensure ‘rule of law’ (in the sense of respecting and ensuring

freedoms)? When there are procedural safeguards against the law-making, it ensures rule of

law. It ensures the respect for the citizenry. You can’t make a law which violates the 8

desiderata completely. When we are thinking of ‘rule of law’ we are thinking of the 8

desiderata. Rule of law- linked to respect and respect- linked to morality.

Why is it important? Because it boils down to the idea of content.

Questions:

1) Does the Rule of Law as exhibited by conforming with Fuller’s criteria really ensure

morality (in the sense of respecting people and ensruign freedoms)?

- Is morality related to procedural morality? Is this procedural limitation enough to

ensure sufficient protection of the respect of citizens? Or is there a requirement of

something substantive? E.g.- Radbruch’s claim of proportionality in punishment.

2) Is the rule of law (conforming with Fuller’s criteria) morally neutral because it can

be used by evil as well as good regimes?

- (Kramer: It is a morally neutral criteria- If we satisfy them, then we can ensure that

the citizens are respected; Nigel Simons: It can’t claim morality by itself- Knife-like-

It depends on how you use them). Merely by showing that the system has the 8

criteria, we can’t show that there is rule of law.

3) Will the evil regimes have good reason to conform with ‘rule of law’ (Fuller’s

criteria)?

- Fuller claims that “If you are a bad regime, you are bound to compromise on internal

morality and it would be cumulative.” Assertion of Kramer: Rule of Law is

serviceable to bad regimes- If you are bad, it is in your interest to follow rule of

conditions, you will be able to harm people more.

ANSWERS

Question 1: Eight desiderata- Rule of Law in one table and another table on absence of rule

of law

1. Wide discretionary powers with officials

2. Extra judicial arrests

3. Extra-legal Beating (Even policeman can’t beat man because he committed murder)

4. Excessive curtailment of liberty

 5. Insecurity of property

6. Excessive punishments

7. No recourse to constitutional remedies

From Fuller’s POV, if the 7 conditions are present the 8 desiderata would be absent and

conversely, if the 8 desiderata present, the 7 things won’t be exhibited.

If there is en masse curtailment of liberties, it will create a smoke of legality or mirage of

legality, to give the impression of goodness. Idea of ‘respect’ is challenged- All 8 conditions

may be satisfied but there are not because of respect. ‘Rule of Law’ is morally netural- can be

used as a good or bad thing- It is equally serviceable.

“Clarity” is compromised in legislation itself. There is some degree of clarity but not

complete clarity- AFSPA can’t be a very good law but it is a law nonetheless.
 Morality of Duty Morality of Aspiration

This is like rules of grammar This is like rules of eloquent and sublime

writing

Necessary for preservation (of whatever it is Desired for excellence

made for)

There can be a general agreement regarding There can’t be one

them

The existence of the subject matter is The existence of the subject matter is not

threatened if they are not followed threatened if they are not followed

Violation attracts penalty; but compliance Violation doesn’t attract penalty; but

attracts no reward compliance attracts rewards

More objective standards can be applied to Little objective standards can be applied to

judge the departure judge the departure

Summary of Fuller’s arguments:

1) Morality can be Internal or External

2) Internal morality ensures rule of law

3) If substantive aim of law is evil, then it is bound to be affect the internal morality of

law. Two factos are judged via this:

- Existence of law and

- Quality of law

4) ‘Rule of Law’ is linked with idea of ‘self-determination’

5) Rule of law ensures ‘freedom’ for citizenry

6) Rule of law exhibits ‘respect’ for citizenry- If law maker is providing for the 8 factors,

he is providing citizenry with autonomy freedom to organize your life. You know the
 rules in advance- you know what you can do and what you can’t. Law maker

considers you intelligent and capable enough to adjust yourself. Only outer limits are

provided by the law maker (‘Respect’ doesn’t mean reservation- It is the substantive

part of providing respect. He talks about it the in the procedural sense)

7) This ‘rule of law’ is a moral idea

8) If there is ‘rule of law’ only then there is law

9) If there is ‘rule of law’, law is morally good.

MATTHEW KRAMER’S POSITION:

1. ‘Rule of law’ doesn’t provide any ‘autonomy’ (providing the respect by telling rules

in advance) and ‘self-determination’.

Gunman example: A gunman enters a bank and tells them to follow his instructions

(hand the money over to me, et cetera). These instructions are given for the future

(may be immediate future). All 8 desiderata are satisfied.

We can’t say that the people have the autonomy and the gunman is not treating the

employees with respect. Thus, the claim is false. Merely by the 8 desiderata getting

fulfilled the respect can’t be provided. Merely by looking at the procedure, you can’t

conclude anything about respect.

If the gunman comes to the bank and distributes sweets, then what he is saying is to

be looked at to determine the legal validity. This is his first submission.

 The question of autonomy can’t be without reference to the ‘substance of the

rule’.

2. The adherence to the ‘rule of law’ may be due to the prudential reasons and not due to

any respect for others.

 Smoking example: There are 2 reasons for quitting smoking- you realize that smoking

is bad for your health or it is heavy for your packet, smoking is distracting you from

something which you could use your time for.

On the other hand, you may quit smoking whereby smoking affects your brother,

sister, etc. So, you start feeling that because of me, the other person is the sufferer.

Football team example: Because of smoking of 2 players, their stamina is getting

adversely affected and their condition getting worse and the team is losing because of

them. So, they decide to quit smoking for getting performance to the team. This

quitting is because of a respect that they have for the team.

The regimes can make laws as per the ‘rule of law’ because of either of the 2 reasons:

Because it actually respects them or to suit their needs. It can’t be concluded here

itself. You have to look at further reasons. It can’t be concluded that the reasons were

morally good or not.

Unless the state shows that they followed the 8 desiderata because they respected

citizens, it can’t be said that there is rule of law.

If the reason for adhering to ‘rule of law’ is to show that regime is ‘good’, this might

be a treatment to the moral significance of the ‘rule of law’. However, that’s not the

case.

In the smoking example, if you want to create an expression to make yourself ‘good’-

this leads to an implied reasoning that smoking is bad and quitting is good. You

subscribe to the idea. He is willing to concede that the reason

3. If you are a bad regime, it is in your own interest to follow the 8 desiderata. He goes

on further criticizing Fuller’s theory. The reason for an evil regime stick to the rule of

law shall be:

 a) To give clear cut directions to citizens: Everything should be specified and made

known to people just to create impression that you’re good.

b) To foster incentives for obedience: If someone’s beaten up or put in jail only in

accordance with law, then will I have a reason to follow the law.

If a student is randomly passed or failed, it doesn’t give an incentive to study or

follow the system. It becomes a disincentive to study.

 Thus, for a regime to make people follow the rule of law, the incentive should be

high.

c) To enable officials to coordinate their activities: Hitler- Eastern command,

judiciary, police, Western command, secret service, etc: No one knows how the

others are functioning. This clarity can’t be there if there is no rule of law.

All these are prudential reasons (self-interest reasons) for the abd regime to comply with

rule of law conditions. Thus, rule of law becomes equally serviceable to good and bad

regimes. Thus, rule of law is a morally neutral idea. If you want to claim morality, you

have to make laws which are substantively good.

He, himself, doesn’t specify what is a substantively good law whereby he wants to drag

the supporters of Fuller on a slippery slope.

4. Officials in responsive and exploitative regimes have solid prudential reasons to abide

by the ‘rule of law’.

Probability theory: If there is a possibility of you getting an extra-judicial punishment

and you getting punished because of something as per law.

If people are frequently punished even when they have obeyed the law, their incentive

to comply with the law will be markedly sapped.

 E.g.: If you break the law, 90% chance of getting punished and 50% in case of not

breaking the law and yet getting punished. How does that effect the people’s

compliance?

 Thus, Fuller’s eight desiderata doesn’t ensure morality of law.

Mathew Kramer’s position

Rule of law deesn’t provide any ‘autonomy’ and ‘self determination’

NIGEL SIMMOND’S POSITION

1. POSITION OF KRAMER- FREEDOM IS LOST

 The idea of freedom has many meanings or perhaps many dimensions (someone may

say that it means having a no. of options and no one is forcing you to pick one option,

if options are curtailed, you may feel that you are unfree. E.g. you have only 3 choices

of medicine, engg and law). Mathew Kramer’s idea of freedom is linking it with

options. Simmonds says that this idea is wrong as according to this, animals would be

freer than humans.

 The gunman’s example can be rebutted because that is an extreme form of a reaction

 The core of freedom is not being in someone else’s power. This is the suggestion he

gives, preventing arbitrary power, having security of property. You need to curtail this

power. The law can just tell you where you can’t step in. Compared with state of

nature, these are less options but you can’t say that you are

Slave owner’s example: There is a master and slave. The master is very benevolent, he

doesn’t prohibit him from doing things and even doesn’t ask him to do a lot of things.

Can we say that the slave is free? Slavery can mean that the number of options

available to people.

Rule of law doesn’t increase the range of options. It creates a system whereby the law

makers and citizens are controlled in some manner. It is not like the master-slave
 relationship whereby the slave is the only one subject to harsh conditions. Curtailing

powers and liberties- both- is essential.

 If a slave owner doesn’t prescribe or proscribe the salve’s conduct, can we therefore,

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

that slavery is not unfreedom?

 In rule of law range of options with a citizen may be limited but these options are

determined by general rules. That makes citizens free from 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 system can’t work.

 Hence, liberty (in the sense of freedom from powers of others)….intrinsically linked

with the idea of Rule of Law.

2. KRAMER’S SECOND POSITION-

 An evil regime needs to retain power. It needs to supress 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.

Salute example: You make a rule that whenever there is a parade, everyone shall

salute. If you don’t, then there would be some kind of punishment. People salute but

do it with a limp handThe reason for an evil regime to NOT to stick to ‘rule of law’

shall be:

a) They will have to make a lot of legislations

b) The regime shall be ridiculed- There can be two kinds: a mockery or one which

shows respect. How will evil regime react to them? Even they have satisfied the

technical requirement but have violated the spirit of the law. You can’t wound up
 people and flog them. Next time, they have a straight hand but they smirk. Next

time, they jump.

c) The regime shall appear to be worried about the dissenters- Every time you have

to amend the law Evil regime can’t follow ‘rule of law’ conditions. At the same

time, they can’t allow people to think they are weak. When people are doing this,

the authoritarian regime will end up beating them. Thit establishes power of

regime. But they can’t keep following the ‘rule of law’.

d) The frequent changes shall be required in law and that shall leave an impression

that the efforts of the regime are ineffective.

3. KRAMER’S THIRD POSITION- PROBABILITY THEORY

Even when regimes punishes in an extra judicial punishments, that won’t reduce the incentive

in the minds of people to follow the laws of a bad regime.

“…the fact that you will punish me if I break the law, the rules give me a good reason for

compliance even if you frequently beat me independently, for the ‘the beating in consequence

of breaking the rules will be an additional beating that I could have avoided by

compliance…”

“… a 90% chance of punishment if I break the law, in addition to a 50% chance of

punishment that will be suffered in any event, regardless of whether I obey law or not….”

- Simmonds

 Rule of law has some intrinsic moral quality- making it useless for an evil regime. It

keeps you free from arbitrary power of law-makers.

 CLAN CONCEPT OF ARCHETYPAL CONCEPT

Do judges make the law?

 Vehicle in the park

 Core/penumbra
  Discretion v. Rule

Liberitarain understanding – Communitarian justice developed after this ended

Utilitarian understanding

E.g.: 377, abolition rights, etc- Liberitarian lines- Focuses on individual liberty even contrary

to societal norms. State justifies it because of 1) Morality of society, 2) For your own good &

some 3) From these 3 arises, What is the role of the State?

This liberty needs to be curtailed- using utilitarian and communitarian . The most concrete

root of communitarianism- St. Thomas Aquinas’s philosophy

AQUINAS:

13th century

Struggle between State and church- Who should have prominence? Who is the rightful

leader? He represents the church.

Laws are of 4 types:

1) Eternal law- Whole universe is created by God- God is capable of looking at his

creation. God put everything in an order/ system. God has a perception of how the

world works. E.g.: You are an engineer- you have created a car and know how the car

is performing. His understanding is static understanding and that is eternal law.

Everything going according to his plan.

2) Divine law- When some enlightened human beings get messages from God, they

receive messages. The perception of how God works comes in a human mind. E.g.:

Car being viewed by buyer- after receving message from engineer. The favoured child

of the God. This law is also perfect like ternal law. It is like a manual handed over to

the buyer.

3) Natural law- When God created universe, He engrained eternal law in all elements of

universe. E.g,: Message given to moon to rotate around the Earth for eternity. All
 compenents of the universe are given the message of etermnal law =- All these

elements follow the eternal law. E.g.: Mango Seed- Gradually you’ll have to grow,

the fruit that you’ll bear shall bear a mango fruit. You will never bear an apple fruit.

Your life is an unfolding of somethignw hich I s imprinted in you. That is natural law

inside of you. E,g,: Elephant- eat, behave, drink ,etc. E,g,: You starve a cow-

exteremly hungry- she’ll die but not eat meat if thrown before her.

Human beings are different from other species: They have intelligence unlike cow,

rose or insect- It is a double edged weapon- does 2 things: it is only human beings

who can realize process of eternal law, divine law and natural law. There is no

difference between humans andneem tree besides they can realize that what is

happening to them. IT is only human beings who can deviate from natural law. Other

animals, plants, etc NEVER deviate from natural path.

377- exploring, recreation and – they are deviations from the standard norm which

can be Natural law is present but it is not undeclared- Since you have the capacity to

deviate from the standard norm. The role of the authority is to deviate from natural

law.

4) Human law

The idea starts with the assumption of the existence of a natural law which is a drawback.

Natural law demands- no effort should be made to terminate a possible pregnancy- the nature

is such that from the first moment. No animal or plant try to stop it. Use of contraceptives is

also bad.

But I am an entity who can decide fro myself- what is good for you is already inside you

imprinted by the good. So, you should not try to discover for yourself what is good for you.
All human laws would be telling humans what is good for them and they should eb in line

with the natural law.

Process:

People like Aquinas or Champions of Church will make these laws and they would be the

human law. The state should allow the humans to pursue the conceptions of ‘goofdlife’ that

they have for themselves and the Aquinians want to give the people the ‘good life’. The State

is created for the purpose of life liberty and pursuit of happiness. We will protect all

conceptions- That is libertarian.

Beastiality- Is having sex with animals alright? Extreme libertarian would argue that it is also

fine.

 According to Aquinas, you don’t apply your mind to deviations. You don’t think. You

only apply your mind to do discover things which are naturally inside of you.

JOHN FINNIS

Arguments for the conservative side. Natural Law and Natural Rights. Not just a theory of

law but a theory of life.

Why do we do things that we do?

Jeremy Bentham- Human beings are governed by two masters- pleasure and pain. We try to

do things which enhance pleasure and diminish pain. Hedonistic way of looking at life.

Happiness is the ultimate end which is achieved by different means. Morality can’t be

diceded in the basis of what people are doing.

You can’t base the morality on what people are doing. From Benthamite point of view,

Bhagavada Gita and a porno magazine are the same. The difference is only at the medium

level.

My theory is like Earth, you can’t move it.

Thought experiment to counter his theory: Scientists create a machine which is a CT scan

machine in which you enter and lie down. The machine gives you pleasure at any moment

you want and you don’t want anything else from the outside world.

But then the life that you would be living won’t be a “human life”. You should flourish as a

human being.

2011- revised edition- revised basic goods again.

I. HOW FINNIS UNDERSTANDS LIFE?

Participating in some basic goods is your life.

These goods from the 1980 edition are:

a) Life itself- participation in all aspects of vitality of life- not simple biological

existence- which makes you healthier, stronger, which will support your existence for

a longer duration.

b) Knowledge- Endeavour to learn things- to seek information- the one lying in machine

isn’t getting knowledge- you have to make an effort to gain knowledge.

c) Play- Sports, some recreational activity other than knowledge seeking pleasure. There

will be chance of both loss and success in every aspect.

d) Aesthetic experience- Keep in your mind a contrast always. That person is not

participating in aesthetic experience. It includes appreciating things of beauty, good

movies, books and dances.

e) Sociabiltiy– Friendships, bonds, attachments with people

f) Practical reasonableness- In greater detail later. Having a coherent plan of your life-

can’t just wander like an animal.

g) Religion- Some effort to understand origin of human life. What is our purpose on the

planet? Getting in touch with the creator and created relationship.

If you are not doing these things, you are not flourishing as a human being.
The second list from 2011 includes:

a) Knowledge of reality: This included aesthetic experience (it is not a separate heading)-

Includes religion + Aesthetic experience (like rain makes you happy- which gives rise

to art, poetry, etc)

b) Skilful performance- The performance in all things- play, work, etc for its own sake.

You should work in the best way possible.

c) Bodily life- Health, vitality, vigour, etc.

d) Friendship- Includes associations between persons of various levels and strengths-

There are people whom you are close with. Sometimes, you might be closer to your

boss, sometimes your boss.

e) Marriage- Sexual association between a man and a woman.

f) Practical reasonableness- Same.

g) Harmony- Should not go against widest reaches of nature and the ultimate reality.

E.g.- If the state bans the use of non-degradable plastics- it is good. Both need to be

sustained.

INCOMMENSURABILTIY- The basic goods that we have talked about, all are all similarly

good. No one is inferior to another. All of them are equally basic. All of us shall have our

own priorities in basic goods. Some may attach greater importance to knowledge, some to

religion, etc. That is perfectly fine. If you choose to not participate in some basic goods, that

is also fine. Out of these 7, you should participate in as much basic goods as possible. You

should not NOT participate in ALL basic goods. All of us participate in some basic goods

more than others. Our degree of involvement is different. We can flourish as a human being

in an infinite manner.

P.V. Sandhu and I.P. Massey are eually flourishing as human beings.

PRACTICAL REASONABLENESS (MASTER BASIC GOOD- YOU CAN CHOOSE GOODS BETTER)-
 1) Having a coherent plan of life

2) Make the most of your time and resources

3) Don’t rule out participating in basic goods

4) Don’t act contrary to your conscience

5) Don’t intentionally damage any basic good (Right to die not present)

6) Don’t arbitrarily prefer your own fulfilment over others- saying that your combination

is superior to others.

7) Don’t avoid your commitments of life.

One way of challenging the theory is challenging the list itself

DWORKIN LEFT- END TERM CONFIRM

Critical Legal studies and Feminism to be studied on own.

HISTORICAL SCHOOL OF JURISPRUDENCE

Best book- R.W.M. Dias- Jurisprudence. One chapter on historical school and

Sources of law- But custom can’t be one if it is violative of constitution- it has to be in

conformity

What are the materials to which the Constitution refers?

From a historical school pov, this approach is wrong, i.e. getting inspired from foreign

countries.

It should be in conformity with volksgeist (People’s spirit). Law should be reflective of vg.

When you are creating a legislation, codifying laws and writing constitution – it should eb

inspired by the spirit of your own people. You should study culture and customs of your

culture and make legislations in accordance to that. This reverses the position of custom

being in conformity with law. It should emerge from consciousness of society. Custom is

reflective of vg.
Historically, in the early 19th century, in the region of Germany, Austria, Switzerland, etc.-

Why it emerges there?

1) Prior to this time, the region had witnessed a lot of invasions from France, i.e.

Napoleon. So there was a repulsion to anything that emerges from the regions of

invaders like France.

2) There are special characteristics of people from every region- behaviour, biology, etc-

People in the “region” of Germany are nationalists. They believe they are the best

race. France was a progressive country- not just in art and culture but also in law. It

was the first country which started the codification of law. The code prepared was

Code Napoleon. The code became very popular and other nations adopted it. E.g.:

Protection of women from Domestic Violence Act, 2005- All neighbouring countries

have borrowed it.

In Germany there was Professor Thibout- he argued that Germany should also adopt

Code Napoleon. By the time, there was no code in Germany. This wasn’t received by

the scholars well. Professor Savigmy wrote a paper in responsae to Thibout’s paper

and he tried to establish the point that codification of law was a bad thing to do as it

would create difficulties and it wouldn’t be accepted by people. He argued that

Germany should do a scientific research of the needs of the people and make the law.

From this paper emerges vg and the historical school of thought. On the basis of the

vg, the code should be created.

Impact of research paper

Germany did not codify law for the next 100 years just because of 1 research paper. Dowry

prohibition act, - The customs are so ingrained under the

Difficulties in the idea

 1. Language, culture, tradition, habits, food, etc all are different- to trace a signle cg is

very difficult.

2. Even if there is vg, it can’t be present on all issues. If you ask your g mother- what

should be the law on your marriage with your first cousin, she would have an opinion

you ask what should be the export duty on the surgical goods? She wouldn’t have an

opinion and – It can’t be present in all matters especially technical matters. If you get

inspiration from foreign countries, it is better to have it as they have already

experience problems 20 years before you.

3. The idea of vg is the idea of unity- one single common bill- law must emerge from the

united opinion. Law sometimes emerges due to conflict in opinions. All industrial

laws- the basis is the conflict between the workmen and the capitalist. Root of labour

legislations is capitalist class and labour class.

4. It fails on the point that it is the will of a handful of people which is present in the

country. It is possible that there is one person who wants that the change. Sati

prohibiton- Raja Ram Mohun Roy- who wanted the ban however the vg deemed it to

be conscious.

SOCIOLOGICAL SCHOOL OF THOUGHT

Sociological engineering/ social engg.- This is associated with Harvard Professor Roscoe

Pound- the task with a law-maker is the task of an engineer- The engineer’s task is to

accomplish project with maximum efficiency. A good engineer is one who will achieve the

target with maximum efficiency- least time, resources, wastage and material.

An efficient law-maker is one who achieves target with maximum efficiency- that Is

balancing three types of interests- one is the person interest of the people of the society,

second is the social interest and third is the national interest. Individual interest may be in

conflict with social interest or If you are not able to protect a particular interest, that’s
wastage. You should make such laws. He makes a list of all possible interests in person,

society and nation, etc.