MUTHU SRINITHI.

R
123087029
BA. LLB(HONS.)

JURISPRUDENCE: DESCRIPTIVE ASSIGNMENT

1. ANALYSE THE CONCEPT OF GRUNDNORM

The Pure Theory of Law by Hans Kelsen represents the most refined development to date of
analytical positivism. According to him, a theory of law must deal with law as it is actually laid
down and not as it ought to be. In this regard, he agreed with Austin and insistence on this point
marked him as a positivist. Kelsen observed that a theory of law should be uniform. It should be
applicable to all times and in all places. He advocated general jurisprudence and arrived at
generalisations that hold goo over a very wide area.

Kelsen writes that a theory of law must be free from ethics, politics, sociology, history etc. In
other words, a theory of law must be pure. If a theory is to be general, it has to be devoid of all
variable factors. Kelsen did acknowledge the importance of ethics, politics, history etc. But it
was his view was that a theory of law must keep clear of those considerations.

To Kelsen, knowledge of law is the knowledge of ‘norms’. A norm is a proposition in

hypothetical form: “If A happens, then B should happen”. Kelsen considered law to be a
normative science that includes all norms created in the process of applying some general norm
to a specific action. According to Kelsen, a dynamic system is one in which fresh norms are
constantly being created in the authority of an original or basic norm which is named by him as
the ‘Grundnorm’. A static system is one which is at rest and the basic norm determines the
content of those derived from it in addition to imparting validity to them.

The view of Kelsen is that, in every legal system, no matter with what propositions of law we
start, a hierarchy of ‘oughts’ is traceable to some initial or fundamental ‘ought’ from which all
others emanate. This according to Kelsen is the Grundnorm or the fundamental norm that exists
as bedrock of all other legal principles. This norm may not be the same in every legal system.
Every rule of law derives its efficacy from some other rule standing behind it, but the
Grundnorm has no rule behind it. It is the initial hypothesis upon which the whole system rests.
2. ANALYSE HART-FULLER DEBATE. EXPRESS OPINION ON THAT WITH ILLUSTRATIVE
CASES

H.L.A. Hart, a British legal philosopher, was a very influential positivist of the 18 th Century. Lon
Fuller on the other hand, was an advocate of Natural law conception where he argues that all
systems of law contain an internal morality.

The Hart-Fuller debate is an exchange between Hart and Fuller that was published in the Harvard
Law Review, 1958, on Law and Morality. It demonstrated the glaring demarcation between
positive and natural law philosophy. In the said debate, Hart took a positive view that law and
morality were two separate entities for which Fuller replied by arguing that, morality is the
source of Law’s binding power.

Hart acknowledges laws to be of two types:

 Primary rules regulate the behavior of man in the society. These rules either grant rights
or impose obligations on the members of the society.
Example:- Rules of criminal law forbidding murder, robbery, rash driving are primary
rules, tort rules, the individual right to freedom of speech ,the provisions of contracts that
define the primary obligations of the parties, the environmental law rule that forbids
discharge of toxic substances in rivers and streams etc.

Secondary rules are those that stipulate how and by whom the primary rules may be
formed, recognized modified or extinguished.
 Example: - Contract law rules that enable parties to form contracts, the rules that allow
testators to create a will, the constitutional rules that confer legislative powers on
Congress, the statute that authorizes the Supreme Court to promulgate rules of practice
and procedure for the federal courts.

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what you are
legally obligated to do (or refrain from) and what consequences attach to obedience or
disobedience. Thus, the criminal law rules that prohibit theft forbid certain conduct and provide
for penalties for violating the prohibition. Technically, the class of secondary rules includes
everything except primary rules.
For example, secondary rules are legal rules that allow for the creation, extinction, and alteration
of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers
individuals and firms to make contracts; contracts themselves are usually collections of primary
rules.

Hart also acknowledged a Penumbra region in law, where he says, every law has an area where it
lacks clarity. He observes that, Justice must be searched through the penumbra law.
Interpretation must be made from time to time in accordance with the internal objective of the
law.

Indian case law examples for the above stated observation of Hart:

 Yamuna Anantarao v. Anantarao: In this case, the question was regarding who constitutes
a ‘Wife’ under Section 125 of CrPC with respect to maintenance. In this case, A,
concealed first marriage and married B. Supreme Court held that, the second marriage
was void and B cannot obtain maintenance under Sec. 125 of CrPC.
 Badshah v. Urmila Badshah Godse: Here, a modified stand was taken by the Supreme
Court where it diluted the above stated Judgment. It was held that, upon considering the
internal object of Section 125 CrPC, if the second wife is absolutely innocent with regard
to first marriage of the husband, then she is entitled to maintenance under Sec. 125 of
CrPC.

Fullers’ view

Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating human
behaviour through laws. He believes that our legal systems are derived from the norms of justice
which have a moral aspect. He argues that for a law to be valid, it must conform to a certain
moral function test.1 These are the eight desiderata set out by Fuller; (I) Rules (ii) published (iii)
prospective (iv) intelligible (v) not contradictory (vi) possible to comply with (vii) reasonably
stable through time (viii) followed by officials.

Fuller implores law makers to take into consideration each of the above before determining
whether a law is valid. Fuller goes further to explain morality by categorizing it in two; Morality
of aspiration and morality of duty. Morality of aspiration suggests a desired norm of human
conduct that promotes his/her best interest. Morality of duty describes the standards people
follow to ensure smooth functioning of society. Other forms of morality discussed by Fuller are
“Internal morality of law” and “External morality of law”. The former is concerned with
procedure of law making while the latter focuses more on substance rules of law which are
applied in decision making. Fuller rejects the positivist approach to law and argues that society’s
goals can be achieved by other means rather than relying solely on law.

The Informer Case

“A German woman denounced her husband to the authorities in accordance with the anti-
sedition laws of 1934 & 1938. He had made derogatory remarks about Hitler. The husband was
prosecuted and convicted of slandering the Fuhrer, which carried the death penalty. Although
sentenced to death he was not executed but was sent as a soldier to the Eastern front. He survived
the war and upon his return instituted legal proceedings against his wife. The wife argued that
she had not committed a crime because a court had sentenced her husband in accordance with the
relevant law of the time. However, the wife was convicted of ‘illegally depriving another of his
freedom’, a crime under the Penal Code, 1871, which had remained in force throughout the Nazi
period. The court described the Nazi laws as “contrary to the sound conscience and sense of
justice of all decent human beings”.

If we follow Harts positivist views, the decision given by the Court was wrong, because hart
believes that no matter how heinous the Nazi laws were, they were in accordance with the
Enabling Act passed by the Reichstag, and was valid. It satisfies Hart’s rule of recognition. I find
this very disturbing for many reasons. Fuller on the other hand recognized the Court’s decision
because it created respect for law and morality, and by using his 8 desiderata Fuller states that all
Nazi laws were illicit. This justifies the courts overlooking of the earlier 1934 act and upholding
the wife’s conviction. Without the courts applying a moral concept in the application of the law,
the courts would have had to acquit the wife and agreed with Hart, a decision I feel would have
been wrong.

According to Hart, the Courts were left with only two options to preserve the integrity of the
judicial decisions, either to let the wife go free because the statute protected her, or make a
retrospective laws repealing the statute under which she claimed protection, and declaring the
acts of the perpetrators of such atrocities as criminal. Even though Hart did not favour the
retrospective application of criminal statutes, he argued that the Nazi regime could have been
considered an exceptional circumstance for the application of retrospective of laws, if the Courts
were afraid that Hitler’s accomplices would be acquitted. Hart was strongly against the Court’s
decision to introduce a concept of morality and deciding the statute which protected the woman
was no law at all.

Fuller contended that Hitler’s regime was so harmful to morality, that there was nothing in the
system that could qualify to be called a law as they did not comply with his desiderata. He stated
that the Nazi laws lacked the necessary internal morality required in the process of law making,
which gives laws respect and makes them obligatory to be followed by citizens. Fuller believed
that unless the Nazi laws were treated as non-laws, the perpetrators of evils under the Nazi
regime would go unpunished.

3. ELUCIDATE SAVIGNY'S THEORY OF LAW. ANALYZE INDIAN LEGAL SYSTEM BASED ON HIS
THEORY. YOU CAN EXPRESS YOUR OPINION.

F. K. Von Savigny is regarded as the founder of the Historical School of Law. According to him,
law is “a product of times the germ of which like the germ of State, exists in the nature of men as
being made for society and which develops from this germ, various forms, according to the
environing influences which play upon it.” The essence of his thesis is to be found in his work of
1814 entitled On the Vocation of Our Time for Legislation and Jurisprudence.

According to him, law grows with the growth and strengthens with the strength of the people,
and finally dies away as the nation loses its nationality. The center of Savigny’s stages was that
the idea of a specific arrangement of law was an impression of the soul of the individuals who
included it. As indicated by him, the law of a specific culture is the exemplification of the soul of
individuals joined by basic language, custom, sentiments and basic past to include and reproduce
law. Therefore, the development and advancement of law has no reliance upon individual
discretionary will. All laws are the indication of this normal cognizance. He states “law develops
with the development, and remaining with the quality of individuals, lastly diminishes as the
country loses its nationality”. Law has its source, presence and legitimacy in the well-known
awareness and internal emotions and its standard recognition isn’t the reason for law however the
proof of its reality. As indicated by him, law isn’t a fake, self-assertive, life less mechanical
gadget planned by a legal scholar to be forced from above. It is then again, a complex quiet and
undetectable yet unique experience produces showing itself in the ‘basic sentiment of the internal
need’ with which individuals respect it.

There is a limited applicability of Savigny’s theory to India. Indian Constitution is up to a greater

extent a federal Constitution as there is division of powers between Central and State
Governments. Because of it they both act independently in their own spheres. Under the Union
list, Union/Central Government has powers about national interest matters and under the State
list; State Governments have powers about local interest matters to enact laws. This distribution
of powers about enactment of laws by federal and State Governments is against Savigny’s
national character of law.

Yet, up to certain degree Savigny’s hypothesis appears to have relevance to India. In the Indian
Constitution, the Preamble of the Constitution pronounces India as a “Sovereign, Socialist,
Secular, Democratic, Republic.” The expression “popularity based” shows that the Constitution
has set up a type of government which gets its power from the “will of the individuals”. The
Preamble additionally proclaims that the Constitution of India is embraced and instituted by the
individuals of India and they are a definitive ace of the Republic. Along these lines, the genuine
force is in hands of Indian Citizens both at Central and State level.

Although Indian Constitution indicates that the source of Indian Constitution is the people of
India yet there are many provisions which have outer sources, for example, Fundamental rights
are borrowed from the American Constitution and emergency provisions are borrowed from
German Constitution. Thus, it is clear that it is against Savigny’s theory which states that only
Volksgeist is the source of law.

The present laws e.g. law of torts, provisions regarding restitution of conjugal rights, Contract
Act, and many other important laws are gifts of English who ruled in India and brought and
applied their laws here too during’ 19th and 10th Centuries. They codified English law in the
Indian soil which has been very beneficial for Indians. It was the codification of law which made
the law uniform throughout the country. It is against Savigny’s view who believed that a
received law can never be effective nor can it acquire national character. He also vehemently
opposed codification of law. But the existence of a received Common Law and successful
working of the Codes in India proves wrong Savigny’s view.

According to Savigny’s theory, law always comes from the popular consciousness of the people.
But against it in India, in modern times many no, doctrines are deliberately introduced by policy
makers and they are the result of conscious effort, e.g. Dowry Prohibition Act and the
Untouchability Abolition Act. Such laws don’t always reflect the popular consciousness of the
country. In recent times in India a new thing which is against Savigny’s theory is judicial
activism. By way of precedents, judges are making laws which are against Savigny’s view who
ignored creative functions of the judges.

4. EXAMINE THE CONCEPT OF LIVING LAW

Eugen Ehrlich was an Austrian legal scholar and sociologist of law. He was regarded as one of
the primary founders of modern field of sociology of law. Ehrlich was concerned with the impact
of laws on various aspects of the society. According to him the laws to be found in formal legal
sources such as statutes and decided cases give only an inadequate picture of what really goes in
a community for the norms govern life are only imperfectly and partially reflected in them. The
positive law cannot be understood apart from the social norms of living law.

The living law as discussed by Ehrlich is the inner order of associations that is the law in practice
of the society as opposed to the law enforced by the state. To Ehrlich living law is that which
dominates the life of the society even though it has not been put forward as a basis of argument
in legal prepositions. He had minimalized the differences between law and other norms of social
compulsion. The difference is relative and smaller than usually asserted because the essential
compulsion behind legal no less than other social norms is social compulsion not state authority.
He drew a distinction between norms of decision that correspond to that which is traditionally
understood to be the laws and norms of conduct that govern societal life.

Living law is a system for the routine organizing of social connections. Its source is in the wide
range of sorts of social relationship where individuals coincide. Its substance isn't debate and
case, however harmony and co-activity. What considers law relies upon what sort of power
exists to give it lawful hugeness among those it should direct.
5. CRITICALLY EXAMINE MACHIAVELLIAN PRINCIPLES

Niccolo Machiavelli had gained immense fame in developing political thought. He was an Italian
Renaissance historian, politician, diplomat, philosopher, humanist, and writer. He has often been
referred as the originator of modern political science. He held the position of senior official in
the Florentine Republic for many years, with responsibilities in diplomatic and military affairs.
He also wrote comedies, carnival songs, and poetry.

"Machiavellianism" is extensively used as a negative term to characterize unprincipled

politicians of the sort Machiavelli described in The Prince. Machiavelli defined immoral
behaviour, such as deceitfulness and killing innocents, as being normal and effective in politics.
He even looked to endorse it in some situations. The book itself gained notoriety when some
readers demanded that the writer was imparting evil, and providing "evil recommendations to
oppressors to help them maintain their power." The term "Machiavellian" is often related with
political deceit, deviousness, and real politic. Many critics, such as Baruch Spinoza, Jean-
Jacques Rousseau and Denis Diderot, have argued that Machiavelli was actually a republican,
even when writing The Prince, and his writings were an inspiration to Enlightenment advocates
of modern democratic political philosophy.

There are numerous grounds for Machiavelli's moral indifferences. These are mentioned below:

 Machiavelli does not believe in any ethical doctrines or in any divine law because of
intentional segregation of politics from religion.
 In Machiavelli's thinking, moral judgments are wholly subordinate to the existence of
political and temporal existence and welfare.
 Machiavelli considered that the institution of Papacy brought decline and destruction to
the magnificence of Rome. He wanted to practice pagan virtues of cunningness, duplicity
and knavery for achieving successful goals.
 Machiavelli did not at all refute the brilliance of moral virtues, but he snubbed to accept
them essential to the political stability. He pleads that the religion must be skilfully
exploited as a useful defence to achieve the annexing designs by the sovereign.
  Machiavelli stands bravely for the preservation of his state. He stated that there must be
no consideration of what is just or unjust, merciful or cruel, glorious or shameful; on the
contrary, everything must be overlooked.
 He communicated priority to the state and puts it above morality and religion, because it
is the highest form of social organization and the most essential of all institutions for the
protection and promotion of human welfare.
 Machiavelli's support of unreligious and his indifference to morality have become so
much interrupted that even his name has become a by-word for fraud, force and
dishonesty. He wrote primarily for the adoration of the state.

In contemporary world, some of the States Heads performed as "Prince of Machiavelli" by

freezing all channels of human progress and liberty and also by reducing the citizens to that of
animals and slaves. The Prince and the Discourses are still modern theories and are being
practiced in many secular countries of modern phase.

During the last 500 years, The Prince has been a choice of several political leaders, like Louis
XIV, Napoleon Bonaparte and Benito Mussolini. Because of the purely technical lessons, one
can learn from the book. It is beneficial to all politicians no matter what their ideologies are. This
may have contributed to the popular conviction that the book is just a manual on how to gain
power by any means necessary, with no regard to how you should use that power. This is the
Shakespearean view of the man as the "murderous Machiavelli".