JURISPRUDENCE ASSIGNMENT

PART- A

1. Write a note on the main presuppositions of Natural Law theories.

Answer: Natural law theory believes that our civil laws should be based on morality,
ethics and what is inherently been considered as correct. It is in contrast to positive law
theory. Natural law theory is basically a legal theory that considers law and morality as
inter-connected. Humans are defined by morality according to this theory. Naturalist
believes that the natural law principles are an inherent part of nature and exists regardless
of whether it has been recognised by the government or supreme authority or not. Natural
law theory is also known as law of nature, law of reasons, law of god, universal law,
divine law.

For instance, in India, though this theory is not directly applied, but the constitution of
India, via Article 21 provides every citizen right to life. Article 14 promotes equality and
principles of natural justice.

Natural law theory can be classified into 4 part- (1) Ancient period, (2) Medieval period,
(3) Renaissance period, and (4) Modern period.

Socrates believed that law is a product of correct reasoning. There is a capacity of human
to distinguish between what is good and what is bad. Plato believed that Natural law has
elements of reason, ethics, and Justice. Aquinas says that the fundamental principle of the
natural law is that good is to be done and evil avoided. St. Thomas Aquinas distinguishes
four kind of laws-(i) Eternal law, (ii) natural law, (iii) human law, and (iv) divine law.

 The laws of Eternal Law that address the actions of the human being are, therefore,
unique and different because only they need not necessarily be followed. Aquinas,
therefore, called these laws this subset of Eternal Law as natural law. According to Stoics,
human being are a part of this nature and the correct way of human life is the life which
progresses in harmony with the purpose and organisation of nature.
There are two kinds of natural law theory-

(I) The first theory of natural law consists the core if natural law moral theory. St.
Aquinas identifies the rational nature of humans which defines moral law as the
rule and measure of human being acts is the reason which is first principle of
human act.

The other theory of natural law is related with the relationship between law and morality
which is till now debated and discussed by many philosophers. There is no clear division
between the aspects of law and morality. Austin explicitly endorsed the view that it is not
necessarily true that the legal validity of a norm depends on whether its content conforms
to morality. 

The Natural school of jurisprudence is both rational and reasonable.  the evolution and
growth of natural law have been through variation over a period of time.

2. HLA Hart’s critique of the command models of law

Answer: The command theory of law is associated with the positive jurisprudence.
According to John Austin, if a determinate human superior, not in a habit of obedience to
a like superior, commands, habitual obedience from the bulk of a society, that society is
independent and politically organised. He defines law as the command of sovereign. This
theory proposed by Austin was criticised by HLA Hart on various grounds. His publish
on ‘The concept of law’ demonstrates the similarity between Hart’s concept of legal
system and that of john Austin. One of the main criticisms that Hart gave is that Austin’s
theory of legal system does not include the idea of a rule. Hart claims that the definition
of law by Austin is built from the elements of command and habit. This definition is
inadequate. Hart believes that a legal system must be a system of rules. Austin’s theory
on command is based on different aspects which was criticised by Hart-

(i) Command- Austin gave importance to the command of sovereign. According to

Hart, the power conferring rules of law cannot be analysed as commands or any
order backed by threats. For example, if a robber puts a gun on a bank clerk to
hand over cash to him, he does so. This sort of command cannot be called as a
 law. Bank clerk is not handing over the cash on the respect of authority nor he is
dutybound.
Payment of tax- every individual is under an obligation to pay tax and for not
obeying there is a punishment or threat.

(ii) Sovereign- sovereign is an authority to which every member of the society must
obey to. In many societies, it is difficult to identify a sovereign. it is difficult to
create continuity in a legal system, that is, the new sovereign will not come in the
kind of habit of obedience that Austin sets as a criteria. Sovereignty cannot be a
foundation of law. It is not possible to deduce explanation of legal validity in
terms of a sociological concept of sovereignty.
(iii) Habitual obedience- Hart claims that the Austinian definition of law is built up
from "the apparently simple elements of commands and habits,"' 4 the "ideas of
orders, obedience, habits, and threats. Consequently, one may be said to be in a
"habit of obedience" to another when the power of that other to "inflict an evil or a
pain" in case of disobedience.

The command model of law is not a theory of the Rule of Law: of government subject to
law. It is a theory of the ‘rule of men’: of government using law as an instrument of
power. Such a view may be considered realistic or merely cynical. Hart pointed out the
loopholes in the command model of law as Austin’s theory failed to recognize that in
modern society, law making power is discrete and is difficult to identify a sovereign.

3. Jeremy Bentham’s theory of Utilitarianism

Answer: Jeremy Bentham, an English philosopher, is popularly known for his moral
philosophy and the concept of utilitarianism, a moral theory that argues whether an action
should be judged right or not to the extent it increases happiness and utility. Utilitarianism
basically is an ethical theory according to which an action is right if it tends to promote
happiness and is wrong if it does not produce happiness or produces reverse of happiness.
It provides answer to the question, ‘what ought a person to do.’ According to Bentham,
an individual governs his/her own actions and would always seek to maximise their
happiness or pleasure and minimize their pain. Bentham’ theory of utilitarianism lead to
the foundation of philosophical radicalism. He believed thar if the consequence of an
action is good, the act is moral and is immoral if the consequences are bad. He wrote in
his book ‘Introduction to the principles of Morals and Legislation’, Nature has placed
mankind under the governance of two sovereign, that is, pain and pleasure. It determines
what is ought to do.

Utilitarianism does not simply mean one can do whatever one likes to increase happiness.
Bentham believes that utilitarianism is not just one’s own happiness that matters. It means
greatest amount of happiness to greater number of people. If a person’s happiness in in
stealing moany or valuables from someone, this action cannot be considered as utility.
The moral principle will perform the action which maximises pleasure and happiness for
everyone involved.

Jeremy Bentham’s principle of utility was based on 4 aspects: (1) recognition of

fundamental role of pleasure and pain in human life, (2) its approval or disapproves
actions on the basis of amount if happiness and pain, (3) equates good as pleasure and
happiness and bad as evil and pain, (4) assert that pleasure and pain can be measured or
quantified.

There are two doctrines given by Bentham to the theory of utilitarianism. He believes that
people should do what provides for pleasure. Pleasure and pain dictate all human
behaviour. He advocates a doctrine of hedonism.

1. Psychological hedonism- Bentham's claim that pain and pleasure determine what we
do makes him a psychological hedonist, and more specifically a hedonist about the
determination of action.
2. Ethical hedonism- it claims that all only pleasure has positive importance and
displeasure has negative importance. Ethical hedonism can also be a claim about
morality, value, reasons, rationality.

Bentham claims that there are at least 6 dimensions of value in a pleasure or pain, those
are, duration, intensity, certainty or uncertainty, remoteness, purity, fecundity, and
propinquity. Purity is a matter of separating pleasure from non-pleasure, fecundity is a
matter of being instrumental, remoteness and propinquity concerns with temporal or
spatial nearness.
 Bentham’s theory has been criticised by many jurists such as Friedman, he states that
Bentham failed to develop his own conception if the balance between individual and
community interest and pleasure and pain cannot alone be the test to from a legal system.

4. Lon fuller’s concept of the ‘inner morality’ of law.

Answer: Lon L Fuller criticised legal positivism and defended the natural law theory.
The most popular conflict, that is, the hart-fuller debate took place was importance in
framing the modern conflict between legal positivism and natural law theory. Fuller
argues that all the legal system contains inner morality. Fuller denied that there is not
necessarily a connection between law and morality. Fuller has used inner morality and
internal morality interchangeably. All legal rules must pertain to eight condition to form a
legal rule. The eight rules towards which a legal system may endeavour are-

(1) the requirement of generality, there must be a general rule

(2) there must be promulgation of these rules
(3) the prospective application of law
(4) the clarity of law
(5) avoidance of contradiction in the law, law must be consistent
(6) law must not command the impossible
(7) there must not be too many frequent changes in law
(8) there must be transparency between the declaration of law and the administration of
law.
These 8 principles of legality constitute inner morality of law. Inner morality
basically means the morality that makes law possible. According to him, these moral
principles which he calls principles of legality are built into the very concept of law.
The inner morality of law, on which fuller based his arguments, is the basic morality
of social life and general duties. Inner morality is a mixture of the morality of duty
and morality of aspiration.

Fuller argues that natural law theory is correct, and positivism is wrong. In the understanding
of law and morality. The eeight principles that make inner morality of law is not just a law in
certain circumstances but law in procedural version of natural law. The inner morality of law
is largely a morality of aspiration and not just a mere duty. Fullers dualistic conception of
morality lead to Hart’s greater praise and also brought some critiques with it. Fuller
distinguished between two types of morality.

In his work, ‘The morality of Law,’ fuller distinguishes between morality of duty and
morality of aspiration. Whereas the inner morality is an affirmative, general and procedural
morality that drives human towards achievements and keeps away from perilous or harmful
acts. If inner morality of law is greatly aspirational, it becomes difficult to form legal duties
which brings the problem of external morality. Fuller in order to escape from the loopholes
pointed by Hart, needs to prove how inner morality of law cannot be relied upon to ensure
external morality. Hart criticises fuller stating that the principles given by Fuller are
inappropriate to call them as morality.

5. What are the main criticisms against Natural Law theory?

Answer: Natural law basically means those rules and principles which are supposed to
have originated from some sort of supreme source other than any political authority. The
theory of natural law says that humans possess an intrinsic sense of right and wrong that
governs our reasoning and behaviour.

A. The conflict between the theory and its adherents- natural law theory is also
considered as divine theory. Atheism denies the existence of god. For an atheist, both
living and non-living came into existence at same time with perfect relationship with
one another and after which living things evolved in a perfect co-ordination between
themselves. This is totally unimaginable that one must say he/she who denies God
must also deny the existence of relations between things and so must deny natural
theory in its entity.
According to Aquinas, the reason why nature had the order it did was because God
had put it there. Other philosophers, such as Aristotle, did not believe that this order
was divinely inspired. Evolutionary theory has challenged much of the basis of
thinking that there is a moral natural order, since on evolutionary theory species has
developed, they way they have out of survival needs.
B. Internal Flaws- the idea of natural law theory is that everything which exists has a
nature and all these nature are related in some or the other way.  natural law theory
adds to this the idea that the human mind is able to identify the way of life that makes
 man live in accordance with his nature. .It says that if man applies his mind, he will
find the natural way of life, and if he then lives his life in accordance with his nature,
then he will fulfil the purpose and goal of his life; hence, he will experience happiness
in life. Man has natural inclination and the natural law theory is not consistent as the
mind of a man can determine natural law and is not lined with implied assumption.
C. Natural but undesirable consequences- The minds of human beings are prone to
disagreement because different human being have different experience as well as their
abilities to think. This means that never will there develop a consensus about what the
natural laws are. The guidance of natural law theory will, therefore, leave man in
perpetual conflict about what is correct.
D. Austin rejected Natural law on the ground that it was ambiguous and misleading and
mercilessly criticized the natural law school as “simple nonsense, natural and
imprescriptible right rhetorical nonsense upon stilts.”
E. One of the other criticisms of natural law theory is that it is doubtful, however, that
the inherent nature of human beings (Homo sapiens) established behaviour for human
beings in a same way as it may have been established for animals. The intrinsic nature
of humans as it pertains to establishing laws of behaviour may not be the same for
animals, which presents difficulties within the theory.

SUBMITTED BY: BA018002