All Poli at One Place

Respect Our Teachers.
Unit II: POWER, AUTHORITY AND LEGITIMACY
Introduction
The concepts of power, authority and legitimacy are inter-dependent and one cannot exist
without other in proper political organization. When man transformed to social organization
(society) from individual stage he was (even still today) influenced by customs, usages,
religious faith etc. but when he turned as political animal from social animal he entered into
political organization (State/Nation), where he has been guiding by political influence such as
legislations, rules, regulations etc. Political organization is a complex structure which is
running human society with the help of three important factors like power, authority and
legitimacy. State able to provided political obligations to people of its own based on these
three factors. That’s why one can called these three elements as golden triangle.
Power ->->->->->-> Authority ->->->->->->Legitimacy
Power
Authority Legitimacy
Legitimacy is the foundation of authority and authority is the instrument/ institution

for proper implementation of power. Power and authority must and should/ always supported
by legitimacy otherwise people will disobey political obligation.
Example: Legislature
Constitution/ State /Nation Sovereign People
Contract/ (Institution/ Executive (power)
Agreement authority)
(legitimacy) Judiciary
Though there were several theories existed with regarding formation of the State the
most approved form is ‘State came into existence and still today has its existence and it will
be existed in future because of consent of people’. Though anarchist theory and Marxian
theory says the State existed by coercion and continued through force, because which it will
weather away in future. At present one can witness existence of nations. People acceptance is
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legitimacy (just, legal, accepted) for the formation of State with 3 main organs like
parliament, executive and judiciary which is an institutionalized one or authority and which
implements States ultimate power ‘Sovereign’ on people to provide basic necessaries and
comfortable life for all.
Like above power, authority and legitimacy are inter-dependent subjects and co-
ordinate each other for making and implementation of political obligation in political
Organization State.
Concept of Power
Contents:
Introduction
Meaning and Origin
Definition
Power, force, influence, authority, Control et. (Synonyms for power)
Scope
Nature
Sources
Kinds
Conclusion
Introduction:
Politics is nothing but struggle for power.The way power is used or exists in all types of
relationships is central to the understanding of politics –not just in government, perhaps even
more importantly in family and friendship groups too.
There are a number of competing views about what power actually is –
➔ Is it something that a person can have?
➔ Something that can be physically used?
➔ Is it always used intentionally?
Like so, on
One hears of power to govern, the power of purse, political power, spiritual power, economic
power, national power, judicial power, student power, union power, power of nature, power
of God, physical power, mental power etc….. However, in political science one should
concentrate regarding political power.
Meaning and Origin

The word power is derived from the meaning of ‘politics’. In fact the meaning of politics or
political science changed from the ‘study of State and Government’ to ‘the study of power’.
So, the study of power is concerned with how ‘power’ obtained, exercised and controlled.
Power means strength of body or mind in general sense. But in political sense, power
means the power of man (authority/ Sovereign) over the minds and actions of other men
(people). Though power has more significance it cannot be viewed by us with our naked
because it not in a tangible form. It has to feel by us (people).
Often, the word power is also referred with many synonyms like control, influence,
authority, force, might persuasion, coercion and domination etc. so, it is difficult to explain
what ‘power’ precisely and exactly means.
Definition
1. “Power is the capcity to influence the actions of others”. -------- Bertrand Russell
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2. “Power is the capacity of an individual, or a group of individual, to modify the

conduct of others in the manner which one desires”. …….. R.H.Tawney
Synonyms of power
Though the word power used often with several synonyms literally there is a distinction
between ‘power’ and other related terms.
1. Power: Power is the ability to win in a contest. Force is an adjacent but not the
essence of power. In fact, international politics is the manifestation of power.
Ideology is only a mask to cover the true picture of power.
2. Force: Force is the patent power. Techniques of force are coercion, intimidation,
terrorization and military domination. Force is the most brutal manifestation of power.
3. Influence: influence is the extreme nature of power voluntarily. Influence is
persuasive (advisable). People voluntarily submit to influence. It is the indeterminate
exercise of power. It is an amorphous entity and represents the sublimation of power.
4. Authority: Authority is the legitimization of power. It is also a manifestation of
power. It is the institutional counterpart of power. It is rooted in the historical
institutions and value constellations of the community. Legal sanctions, statues,
commands, writs, rules, regulations and bye-laws are the techniques of authority.
Authority is the bureaucratic aspect of status in a social organization.
➔ Power = the abilityto make us do something.
➔ Authority = the rightto make us do something.
5. Control: Control is more comprehensive and less concentrated than power. It is also a
kind of power and more or less equivalent. Control can be legislative, executive,
Judicial, financial administrative and popular. Control is similar to power but not
power.
Scope
Power is a social process, but not merely a political or economic process. Its scope is so
wider. It has influence on individual, group, State, International wide. it means the scope of
the power one can find from individual to international level. It depends on circumstances,
time, number (majority) etc.
Nature
The nature of the power is highly impossible to determine because it has several faces like
social, economical, psychological, sociological, religious, political etc. however, power plays
an important role in politics. It has it influence from individual to international level.
 Power is that it must be backed by sanction.
 Power can be exercise always based on purpose or aim (welfare of the people).
 Power is that always creates liability on other.
 In case of exercise of power there should be existence of two parties that is one who
exercise the power and other on whom power exercise or on who liability to accept
power vast.
Sources of power
The power in political science plays significant role. The sources of power are also to wider.
1. The source of power based on people consent.
2. The source of power based on organization (social organization; society, Political
organization; State/ Nation, International organizations etc.)
3. Political parties also one of the major source of power because majority party forms
authority and exercise power over people.
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4. Authority is the main source of power because when a person entrusted with certain
authority he obtains power to influence conduct of others.
5. Revolution is also one of the sources. Karl Marx propounded that power can be
acquired by revolution only.
6. Charisma or skill or talent
7. Wealth
8. Religion
9. Media like print, electronic, social media etc. also some of the sources for power.
Kinds of power
1. Formal : legal
2. Informal : friendly, socially
3. Non formal : out of law/ with coercion or violence
4. Other classification
i. Legitimate power (position)
ii. Illegitimate power (too much of violence/ out of law)
iii. Referent power (based on ability, charismatic etc.)
iv. Expert power (skill)
v. Reward power (gift power)
vi. Coercive power (negative)
vii. Direct power
viii. Indirect power
ix. Centralized and decentralize power
x. Unilateral power (only from one side ex:Hypnotist, magician, father, doctor.. )
xi. Bilateral power (both sides Government and People)
xii. Manifest power (openly or clearly)
xiii. Latent power (not openly ex: pressure groups, press, religion etc.)
Conclusion
Power can be summed up as the ability to determine the behavior of others in accordance
with one’s own wishes. A man is said to have power to the extent that it influences the
behavior of others in accordance with his own intentions. Power is the ability to influence the
conduct of others even against their will.
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(II.Concept of Authority
Introduction
Power

Example: Legislature
(legitimacy) Judiciary
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Organization State.
Concept of Authority
Contents:
Introduction
Origin
Meaning
Definition
Basic features/ Characteristics of Authority
Scope
Nature
Sources and Kinds(*Max Weber explanation about authority)
Differences between power and authority
Conclusion
Introduction:
Authority is right to exercise power. It is the institutionalized exercise of legitimate power.
Legitimate power is generally called authority. When power legitimized is called it as
authority. It is a general conception that the person wielding authority possesses superior
knowledge. For example Parents have authority over their children (up to minority generally).
Teachers have authority over their students. Doctors have authority over their patients etc.
But, in political sense authority is always legitimate and backed by law and common consent.
All kinds of authority require administrative staff characterized by efficiency and continuity.
Origin
Many political thinkers had a view that the word ‘authority’ is derived from the old Roman
notion of ‘Auctor’ and ‘Auctoritos’. In Rom there was a system of bicameralism in olden
Roman administration namely Popular assembly and Senate.The popular assembly was the
lower assembly. ‘Senate’ is upper house made up of “men of reason” and “Elders with
experience”. The decisions taken by popular assembly has to approve by upper house. The
Senate had to give its advice to the popular assembly. This advice is called as ‘Auctor’ or
‘Auctoritos’. Gradually, these terms formulated into ‘Authority’.
The origin of authority well explained by social contract theorist; Hobbes, Locke and
Rousseau’s.
➔ Hobbes in his well know writing ‘Leviathan’ said that to escape from state of nature
people themselves entered in to one contract and accepted the authority of the
Sovereign without any limitations.
➔ John Locke in his book ‘Two treaties on Civil Government’ said that people just
surrender some of their rights to government and retained the right to revolt when
authority turned in to illegitimate (un lawful).
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➔ Rousseau in his prominent book ‘Social Contract’ said that people totally surrender
their rights forming a ‘General Will’, and also they lose their freedom in favour of a
political authority. As a result, a person who is born free, continues to remain in
chains despite his being one of the makers of the political authority.
Meaning
Authority means legitimized power. Authority means the power or right to give orders, make
decisions, and enforce obedience. Authority means a person or organization having political
or administrative power and control. Authority is an institution which has right to exercise
power (sovereign) through its organs like legislature, executive and judiciary generally.
Different political thinkers had observedthat the word authority can be interpreted in different
ways. According to Max Weber, authority ‘represents the moralization of power’. Robert A.
Dahl said that “legitimate power is often called authority”. According to David Easton,
“Authority is more psychological than moral”.
Definition
1. “Authority is often defined as being power, the power to command obedience”.
…….. Maclver
2. “Political authority is based on the acceptance of the right to rue, and this is also
called legitimacy”. …….. Max Weber
Basic features or Characteristics of Authority

1. In case of authority one can find two parties namely superior (right/power) and
subordinate/ subordinates (obligation/duty). Authority is invested in one superior. The
subordinates obey the rules and regulations framed by the superior.
2. Authority can implement his wishes either through oral orders or in written form. In
olden days (monarchy) oral but in present democratic States mainly in written form.
3. Legitimacy is the foundation of authority. An authority formed under illegitimacy
they it will loss capacity to commend obedience.
4. Authority always in formal. It will have the quality of dominance as right/power.
5. Authority has a co-relative of obligation but it does not mean that authority is absolute
because authority accompanies responsibility and accountability. That means
authority always must base on ‘Just, fair and reasonability’.
Scope
The scope of authority is too wide. It is highly impossible to describe in a single word. It is
combination of moral and political rights. In authority one can find will full submission in
one hand and force on other hand. In case of formation of authority an individual is a party
and at the same time that authority controls individual as well as group as a whole.
Nature
The basis of every system of authority is a belief by virtue of which persons exercising
authority are lent prestige. The nature of the authority one can better understood with the help
of typology of authority. Generally authority is based on three important think now a days.
They are
1. Authority out of rationality
2. Authority based on customary practice or traditional order
3. Authority due to charismatic quality.
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Sources and kinds of authority (Max Weber explanation about authority)

The authority in political science plays significant role. Because it the tangible,
institutionalized system and instrument for the implementation of legitimized political power.
According to Max Weber the main sources for authority springs from three sources. They are
1. Legal –rational source or Legal & rational authority

It is said to rest on a belief in the legal patterns of normative rules and the right of those
elevated to the authority under such rules to issue commands.
In fact this view has support from Aristotle to social contract theorist. Why because many
theories say’s that State established by human with his natural ability like how he established
system of family, society, different organizations etc.
2. Traditional authority
It is derived from an established belief in the sanctity of immemorial traditions and the
legitimacy of the status of those exercising authority over them. Here, one can find the
political authority based on customs and traditions.
Example: King system (Kings devotional rights, King is the representative of the God)
3. Charismatic source – Charismatic authority

It rests on the devotion to the specific and exceptional sanctity, heroism or exemplary
character of an individual person and of the normative patterns or order revealed or ordained
by him.
Example : Hitler in Germany, Mussolini in Italy acquired power first by their charismatic
quality. NTR in Andhra Pradesh,Maruthur Gopalan Ramachandran, popularly known as
M.G.R in Tamil Nadu, Monmohan and Modi as PM etc got power mainly based on their
charismatic qualities.
Besides Weber’s theory, there are some more sources and kinds are there. They are
1. Religious source (ex: Pope of Vatican city, Dalailama of Tibet etc.)

2. Force (Islamic rule and British rule in India)
3. Revolution (Marx said that working class should acquire authority only by revolution)
4. De Jure and De facto (as per law and as per fact)
In England Kind de jure authority and PM and Council of ministers De facto in India
too President at center governor at state level de jure authority but PM + COM at
center and CM + COM at state level are the de facto authority.
5. Legal authority and Political authority
Legal authority is that frames rules and the subordinates obey them. Political authority
acquire authority in legitimate away.
Ex. The Constitution of India has Legal authority under which every person and
institution works. But political parties acquire majority and exercise that legal
authority.
Differences between power and authority

Though power and authority used as synonyms they had lot of differences. They are like
below.
Power Authority
1 Power is latent and not in tangible form Authority is institutionalized power
2 It the psychological fact which one should It is psychological as well as physical
feel
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3 Power may be formal, in formal and non Authority always must be in formal
formal
4 Power may or may not include authority Authority accompanies power
5 Power may or may not possess Authority basic quality is domination
domination
6. Power may or may not have responsibility Authority always based on responsibility
and accountability to ward opposite party and accountability
7. Power is the capacity or ability of a Authority is the right of a person or persons
person or persons to change the behavior to implement his/ their proposals accepted
of the others
8 Power is less democratic than authority Authority is more democratic than power
9 Power is essence of politics Legitimacy is the basis of authority
10 Power is the political polarization of the Authority is rooted in the rules and
desires of the people regulations of the government etc.
Conclusion
Political authority is based on the acceptance of the right to rule. This right to rule is called
‘legitimacy’. Power has to go hand in hand with authority. Power transforms into authority
with the growing support from the political community. Authority is legitimized power.
Therefore, power legitimized is called authority. Hence, authority has to be legitimate under
all circumstances.
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(III.Concept of Legitimacy)
Introduction
Power

Example:
Legislature
(legitimacy)
Judiciary
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Organization State.
Concept of Legitimacy
Contents:
Introduction
Origin
Meaning
Definition
Scope
Nature
Source for legitimacy (Classical and Modern approach)
Conclusion
Introduction:
In political science, legitimacy is the right and acceptance of an authority, usually a
governing law or a regime.
Whereas authority denotes a specific position in an established government, the
term legitimacy denotes a system of government wherein government denotes "sphere of
influence". An authority viewed as legitimate often has the right and justification to
exercise power. Political legitimacy is considered a basic condition for governing, without
which a government will suffer legislative deadlock(s) and collapse.
In moral philosophy as well as according to rational philosophy the term legitimacy is often
positively interpreted as the normative status conferred by a governed people upon their
governors' institutions, offices, and actions, based upon the belief that their government's
actions are appropriate uses of power by a legally constituted government.
According to British social philosopher John Locke (1632–1704) political legitimacy derives
from popular explicit and implicit consent of the governed (people). So, he said that “the
government is not legitimate unless it is carried on with the consent of the governed."
Origin
Many political thinkers had a view that the word ‘legitimacy’ originated from the Latin word
“legitimus”, which means ‘lawful’ or ‘fixed by law’.
Though Political thinkers accepted that legitimacy is the foundation for political power and
the study of political obligation necessarily leads to an investigation of political legitimacy
and revolution (political sociology studies about political revolutions in the society or State).
They have expressed different opinions about origin of legitimacy. Here, the main differences
one can find as the Classical approach by contractual theorist Hobbes, Locke, Roussea based
on ‘Consent’ or ‘Contractual Obligation’ and the other is Modern approach by Max Weber,
Karl Marx and Durkheim based on rationality.
Meaning
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Legitimacy is the acceptability of the exercise of political power through authority. Though
the reasons behind acceptability are different from time to time or place to place
acceptabilityby governed is the core subject of legitimacy. Reasons may be divine,
naturalistic or rationality, charismatic, traditional etc.
Definition
1. “Legitimacy involves the capacity of the system to engender and maintain the belief
that existing political institutions are most appropriate for the society”.
…….. S.M. Lipset
2. “The study of politics is the study of the legitimization of social power in situations of
social interaction”.
……… A.V. Wiseman
Scope
Legitimacy scope in political science is too vast. It is too wider in broad sense as well as
limited in narrower sense. In wider sense it extent on governed in narrower sense it extent
only among government. It was rightly expressed by the German political philosopher Dolf
Sternberger said that "legitimacy is the foundation of such governmental power as is
exercised, both with a consciousness on the government's part that it has a right to govern,
and with some recognition by the governed of that right".
Nature
According to H.G. Wells, stability of a democratic political system depends not only upon
economic development but also upon its legitimacy. Legitimacy rests upon the confidence of
the people in the existing political institutions. Decision making process characterizes the
operation of a modern political system. Authority and legitimacy are the two important
components of the decision making system. People’s consent legitimizes the exercise of
political power.Legitimacy has the nature of positive as well as negative qualities.
The American political scientist Robert A. Dahl explained legitimacy as a reservoir: so long
as the water is at a given level, political stability is maintained, if it falls below the required
level, political legitimacy is endangered.
Source for legitimacy

To explain about source for legitimacy there are different opinions expressed by political
thinkers. It can be better understood as classical approach about legitimacy of power and
modern approach towards legitimacy. In fact the change in the approaches from classical to
modern is effected by the change in the political institutions functioning in the society.
A. Classical Approach
The classical approaches to the notion of ‘political obligation’ relate to the consent
(contractual obligation) of the people concerned. In this approach the prominent theorists are
Contractualists like Hobbes, Locke and Rousseau.
Though these three political thinkers differ in some aspects one can find 3 important concepts
among them. They are
 State of Nature
 Social Contract (concept of the People) (it is the source of legitimacy for
establishment of authority to exercise legitimized power)
 Sovereign
i. Thomas Hobbes (1588 -1679)

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Thomas Hobbes, an English Philosopher in his great work ‘Leviathan’(an imaginary fire
breathing dragon) presented his views on Social Contract Theory regarding how the State
may originated. In this work his leviathan reflected his reaction to the ‘Rebellion and Civil
war’ in 1640’s of England. Hobbes wanted to prove that the people had no right to rise
against their ruler.
For the explanation Hobbes divided his concept in to three important stages like
a. State of nature (pre-civil, pre- social and pre-political)
b. Contract (one contract among people only) and
c. Sovereign (absolute)
a. State of Nature
Formerly, people lived in a State of nature. It was a state of extreme insecurity. Men were in
a state of war with one another. State of nature was pre-civil, pre- social and pre-political.
Man’s life in the State of nature was “solitary, poor, nasty, brutish and short”. According to
Hobbes even though this period is so dangerous, the individuals enjoyed natural rights based
on natural law in the State of nature.
b. Social contract
The way of escape from the insecurity of the state of nature was found in a contract entered
into by every individual with every other individual. So, here people themselves enter in to
the contract that “I authorize and give up my right of governing myself to this man, or this
assembly of men, on this condition, that thou give up the right to him, and authorize all his
actions in like manner”. The sovereign was the result of the contract and, thus, the State came
into existence.
 So, according to Hobbes “Social contract is the source for legitimacy for the origin
of government or State to exercise legitimate power given by the people for their
comfort”. And then “the established Sovereign is the sole source for law
(legitimacy) because command of the sovereign is the law”.
c. Sovereign
1. It is a social contract but not a governmental contract. Therefore, the sovereign is not
a party to the contract.
2. The people have no right to revolt against the authority of the sovereign.
3. The social contract is irrevocable. To break the terms of the contract is to relapse into
a state of a monarchy.
4. Law is the command of the sovereign. Sovereign is the sole source of law.
5. Liberty is the gift of sovereign.
Hence, sovereign is supreme, unlimited, inalienable, permanent, indivisible and absolute.

However, Hobbes declares that individual is free to act as he likes, when his life is
endangered. Thus, Hobbes remains an individualist committed to the right of individual to
self preservation.
3. John Locke (1632 – 1704)

John Locke an English Philosopher discussed his views on social contract theory in his
valuable book, ‘Two Treaties on Civil Government’. In this book Locke tried to justify the
deposition of James II and the election of William III as king of England. He wanted to prove
that the people have the right to depose an arbitrary rule and choose a new monarch. Locke
justified constitutional government. In his explanation he also explained about 3 stages for
origin of the State but in different manner.
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a. State of Nature (Pre-political but not pre-social)

b. Social Contract (Two contracts)
c. Sovereign (limited)
a. State of Nature
Locke’s state of nature was not a state of constant internecine strife. In his state of nature,
people were cooperative and mutually helpful. It is the state only pre-political but not pre-
social. His state of nature was marked by freedom and equality for all. In fact, people in his
state of nature lived under the ‘law of nature’. But there was no common judge either to
interpret or to enforce the law.
b. Social Contract
To escape from the situation of uncertainty, people agreed to unite into a community and
surrender some of their natural rights to the community. In this stage he explained two sub-
stages they are
 Contract one – Social contract: Each individual surrendered his natural right to
interpret and execute the natural law, according to his judgment as well the right to
punish the offenders for the violation of the natural law. However, the individuals did
not surrender all their natural rights. They surrendered some of their natural rights
for the protection of remaining natural rights. This is called the social contract
through which the state came into existence.
 Contract two – Governmental contract: Locke declared that there was another
contract called ‘governmental contract’ apart from social contract. People first
organized themselves into a civil society through social contract. Subsequently, they
set up a government through governmental contract to exercise power according to
certain principles. If the ruler tries to exercise power arbitrarily, then the people have
the right to dispose him and set up a new government.
c. Sovereign or Constitutional government
1. Locke’s doctrine of natural rights to life, liberty and property is his distinct
contribution to political theory.
2. He is the first thinker to speak about in alienable rights of the citizens.
3. Locke makes a clean distinction between State and Government.
4. Locke introduced the theory of consent.
5. Locke lays down the foundations of a liberal and democratic State.
6. Locke separated the legislature and executive and paved the way for the separation of
powers.
Hence, according to John Locke, authority of the government must be based on the
consent of the people. Community is the legitimate source of power. Powers of the
monarch are limited. Government stands for the welfare of the people. People retain the
right to resist their trust is broken. Locke is the ideal spokes man of the middle class
revolution.
4. Jean – Jacques Rousseau (1712-78)

Rousseau, a French Philosopher and regarded as spiritual father of French revolution. His
two important works are ‘Discourse on in equality’ and ‘Social Contract’. Rousseau
explained about his social contract theory in his book ‘Social contract’. He also explained
his theory by dividing State origin period in to three.
a. State of Nature (first so happy latter turned in to unhappy)

b. Social Contract (one contracts)
c. Sovereign (popular sovereign / General will)
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a. State of nature
Rousseau’s State of nature was an idyllic state. In the State of nature, man enjoyed perfect
happiness, freedom and equality. In fact, the natural man was innocent and virtuous. Man in a
state of nature was a ‘Noble savage’. Civilization corrupted him and deprived him of his
freedom and happiness. “Man is born free, but every where he is in chains”. Thus,
civilization forced man in to civil society.
b. Social contract
The individual in the State of Nature gave up all his natural rights and received in return civil
rights. Each member puts himself by the contract under the control of the community. Thus,
the community became the sovereign. Community comes into existence as a result of the
social contract. This community is the sovereign. Government is subordinate to sovereign.
Ruler is merely a servant of the community which is sovereign. Each individual, uniting with
all under the social contract, nevertheless remains free and obeys only himself. Thus,
Rousseau reconciles authority with freedom and law with liberty.
c. Sovereign/ General will
The central doctrine in Rousseau’s theory is the doctrine of ‘general will’. The following are
the important characteristics of the general will:-
1. General will is the sovereign. It is not the will of all. It is also not the sum-total of
individual wills. It is the will of all for the good of all.
2. Man is forced to be free because real freedom lies in obedience to general will.
3. General will alone can judge what constitutes public interest.
4. General will is inalienable, indivisible and infallible. It always aims at collective
good. It is always right. It cannot be delegated.
5. General will is based on direct democracy. “Voice of the people is the voice of God”.
6. General will is not an executive will. Government carries the will of the State.
General will is the sovereign. State and Government are different from each other.
7. General will symbolize the will of the people.
8. General will is qualitative and not quantitative. It is permanent.
Hence, it is well know that Rousseau reconciled between Hobbes and Locke, between
authority and liberty and emerged at once as the father of fascism and champion of
democracy. He upheld political sovereignty.
II Modern approach
The modern approach regarding source of legitimacy is based on rationality. Prominent
persons among this approach are Max Weber, Karl Marx and Durkheim (rationalists).
1. Max Weber
Max Weber was born in Germany in 1864. He was a child of Bismarkian ear. Weber’s ideas
relate to the broad spectrum of social sciences. His contribution is particularly manifest in the
fields of authority and bureaucracy. He analyzed the power politics of his time and examined
the constitutional problems of his country in his book “Politics as Vocation”.
Marx Weber’s bureaucratic model of political legitimacy is usually called the
‘ideal type’ of political obligation.
Typology of Domination:-
Max Weber identified three types of legitimacy, each corresponding to a particular type of
domination:-
i. Charismatic domination
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Charisma literally means gift of grace. By virtue of possession of charisma or an exceptional

quality, a hero or a leader casts a spell over his followers, who accept his domination because
of their faith in the person. In such a type of domination, the administrative apparatus is loose
and unstable. It usually consists of most faithful followers or disciples who play the role of
the intermediary between the leader and the follower.
ii. Traditional domination
The legitimating in this form comes from the belief in the goodness of the past and, in the
appropriateness of traditional ways of doing things. This kind of patrimonial authority
receives ready obedience because of a peculiar faith in traditional status and personal loyalty
to the dominant person. The administrative apparatus in this kind of domination would
consist of the personal retainers, servants and relatives. Under feudal system, the feudal lords
interposedbetween the king and the people constituted the administrative apparatus.
iii. Legal domination
Legitimation of legal type of domination is based on the belief in the rightness of law. People
obey the laws because they believe that these are enacted by a proper objective procedure.
The typical administrative apparatus corresponding to the type of domination is beaurocracy.
The position of the bureaucrat, his relations with the ruler, the ruled and his collegues are
regulated by impersonal rules.
This is famous Weberian construction of “Typology of Domination” upon which Weber’s
approach to political obligation depends.
2. Karl Marx (1818-1883)

Karl Marx was born in Germany in 1818. Marx and Frederick Engels proposed a
philosophical thought ‘Communism’ but it was well developed and implemented by Lenin.
That way one should understand that Marx theory is known as Marxism and the theory
adopted and implemented by Lenin is known as Communism. (But Marxism and
Communism are using synonymous).
Karl Marx great influential works are ‘Das Capital’ and ‘Communist Manifests’. In
Communist Manifesto book Marx approach to political obligation one can find. In this work
one can find the following points.
1. Materialism
2. Economic interpretation of History
3. Theory of class struggle
4. Labour theory of surplus value and
5. Laws of capitalist development
All these put together will help to explain the views of Karl Marx on the concept of political
legitimacy.
Marxian theory of political obligation is basically different from all other theories on the
subjects such as the Divine right theory, consent theory, Prescriptive theory and Idealist
theory. In these theories power is treated as an instrument that connects economic with
politics. Hence, “Political power, properly so called, is merely the organized power of one
class oppressing another”.
Marxian theory sanctions the case of –
1. Political non-obligation in the pre-revolutionary stage
2. Total political obligation in the revolutionary stage, and
3. Political obligation eventual conversion into ‘social obligation’ in the past-
revolutionary stage.
According to Marxism, the idea of political obligation covers the cases of –
1. ‘discredited state’ in the era of capitalism
2. ‘new state’ in the period of the ‘dictatorship of the proletariat’ and
8
3. ‘state proper’ when the ‘classless’ society finds its culmination in the ‘stateless’
pattern of social existence.
In the Marxian theory of politics-
i. The state is described as a ‘bourgeois’ institution in the capitalist society.
Therefore,no political obligation is necessary in this stage,
ii. The case of total political obligation becomes necessary when the ‘new state’ comes
into existence after the revolution for the benefit of workers, and
iii. Eventually, political obligation converts into social obligation after the transformation
of the ‘new state’ into the ‘state proper’.
Permanent revolution operates as a catalytic agent in this process of transformation. This,

in brief, is the summary of the views of Karl Marx on political obligation.
3. Emile Durkheim (1858-1917)

Emile Durkheim was born in France in 1858. He was a renowned Moral sociologist. In
Germany, he studied economics, psychology and anthropology. Subsequently, he was
teaching sociology and pedagogy in the University of Paris. He was a popular journalist and
attracted many collaborators through his publications.
Political Obligation – Moral Consciousness
Durkheim’s approach to political obligation was marked more by moral consciousness than
by material gains. He believed in the collective representation. For this, the interactions of the
individuals are to be united. This synthesis is the collective representation. This is the moral
consciousness of the community. This moral consciousness reflects the religious beliefs of
the community.
Legitimacy of Power – Combination of J.S. Mill’s individualism and Marx’s
Materialism
Durkheim’s approach to the legitimacy of power falls between Mill’s individualism and
Marx’s materialism. He did not advocate the ‘laissez faire’ economics because it increases
the miseries of the laborers by destroying the balance between the rich and the poor. He did
not approve Marxism also since it concentrates on economic return at the cost of moral
function. He criticized the Marxian concept of historical materialism on moral grounds. He
discovered a new basis for moral consciousness in the midist of economic conflict.
Durkheim’s deep concern for moral values explains his approval to the legitimacy of power.
In France, Durkheim was the worthy successor of Auguste Comte in the fiel of scientific
research. He devoted himself to the study of moral sociology. He declared that the study of
society is necessary for the study of humanity. In politics, Durkheim is on par with Plato and
Aristotle. Hence, his approach to political obligation was largely based on ethics, values and
beliefs.
Difference between Usurpation and Legitimacy

Dolf Sternberger distinguishes ‘legitimacy’ with ‘usurpation’. Legitimacy is the opposite of
usurpations. Legitimacy is the lawful exercise of power. Usurpation is the unlawful exercise
of political power. Usurpers often seize the power and try to provide a legitimate form to
their regimes. However, ‘usurpations’ and ‘revolution’ are not one and the same. Usurpation
of power is always an illegitimate act. But revolution may or may not be illegitimate. If a
revolution succeeds, it introduces a new principle of legitimacy.
Reasons for the loss of legitimacy

9
Political change: Governments may lose their legitimacy when the existing political
institutions are challenged. Law is static and society is dynamic. Social change leads to
political change. Therefore, crisis of change results in the crisis of legitimacy. Rivals for
power often automatically consider themselves legitimate and their opponents, illegitimate.
This raises the question, ‘what legitimacy is?’
According to David E. Apter, legitimacy is a set of limits on Governmental action.
Legitimacy is the right conduct in office. When legitimacy is withdrawn, government is
weakened. The following are the three reasons for the loss of legitimacy:-
1. Some of the significant members of the polity may choose to withdraw their support
from the government. It was immaterial whether the people concurred with it or not.
Ex. South Vietnam in 1963.
2. Rise of a new, politically aware, group which is not recognized by political system as
having political relevance. Ex. Social democrats in Germany after 2nd world war.
3. Driving away formerly politically significant members of the polity by the political
system. Ex. Kremintang regime in China.
Conclusion:
It is true that ifthe political system is to survive and sustain, it should be acceptable to the
people so that they may render their obligation to it. The pattern of effective legitimization is
dependent on politically functional activity and the relative inflexibility of power
relationships. The concept of political legitimacy cannot be defined abstractly in terms of an
ideal type of government with an absolute value. It can be understood concretely in terms of
historic concepts of the ideal type of government. A legitimate government is one in which
people feel an obligation to obey whereas no such obligatory is felt towards a government
considered as ‘illegitimate’. The concept of political legitimacy has its applicability in every
political system. Even the autocratic rulers used to move in disguise to know the mood and
mind of people.
However, it is also true that legitimacy is a concept which is so sensitive and depends upon
the people mind set. Legitimacy may be different from nation to nation, place to place, time
to time etc.
1
Unit IV: Utilitarian Approach / Utilitarianism
(It is one of the most and most important topics for examination. In this concept the idea of
the Bentham’s Utilitarianism is more important for the examination and even for law students
because Bentham is the father of Jurisprudence (Knowledge in law) and he was one of the
prominent philosophers who supported positive law (men made law))
Contents / Synopsis
Introduction
Origin
Meaning
Objectives of the State according to utilitarianism
Enlightened Benevolence – Utilitarianism
****Jeremy Bentham
J.S.Mill
Conclusion
Introduction
Utilitarianism is an English philosophy. It is a theory of morality. It is a tradition of ethical
philosophy. It advocates actions that foster happiness or pleasure and opposes actions that
cause unhappiness or harm, when directed toward making social, economic, or political
decisions. A utilitarian philosophy would aim for the betterment of society as a whole. It
would say that an action is right if it results in the happiness of the greatest number of people
in a society or a group. Utilitarianism considers the interests of all humans equally. Though
Utilitarianism is one of the most powerful and persuasive approaches to normative ethics in
the history of philosophy. But this concept was not articulated until the 19th Century.
Origin
The traces regarding utilitarianism can be found in ancient Greek philosophy.
 The ancient Greek philosopher and hedonists1Aristippus2 and Epicurus3 viewed that
the happiness as the only good for well being of the people. Later this idea became
principle/doctrine and
 Scottish philosopher David Hume became the founder of Utilitarianism.
 English philosopher Joseph Priestly vigorously advocated the utilitarianism.
 Scottish philosopher Francis Hutcheson (in his book ‘A system of moral philosophy’)
was the first to use the formula of the ‘greatest happiness of greatest number’.
 More over Cumberland, Shaftesbury, John Gay etc also supported the concept of
utilitarianism.
 English philosopher Jeremy Bentham made a systematic exposition of utilitarianism.
He made it most popularized. Later it was famously known as ‘Bentham’s School’.
So, the entire of popularizing Utilitarianism theory goes to Bentham, for giving a
1
Hedonism is a school of thought that argues seeking pleasure and avoiding suffering are the
only components of well being.
2
Aristippus of Cyrene was a pupil of Socrates. He is the founder of the Cyrenaic school of
Philosophy.
3
Epicurus was the one of the ancient Greek philosopher. He was influenced by Aristippus.
He established a school knows as ‘the Garden’ in Athens.
2
systematic exposition of this theory, and making it widely known and its conceptions,
characteristics.
 J.S.Mill improved and modernized utilitarian approach to political obligation by
inducting qualitative aspect of its substance.
However, utilitarianism substitutes absolute empiricism 4 for absolute idealism and promotes
egalitarian concept.
Meaning
 Utility means the quality or state of being used; the quality to satisfy human wants; a
public utility, a service provided by one of these.
 Utilitarianism means the doctrine, expounded by Jeremy Bentham, that the moral
and political rightness of an action is determined by its utility, defined as its
contribution to the greatest good of the greatest number.
Utilitarian approach to political obligation means the habitual obedience of the people to
the laws of the State because of its utility to promote the general happiness of the greatest
number of people. Utilitarianism is hedonistic, pragmatic and altruistic. According to G.H.
Sabine, the philosophical radicals hold that utilitarianism is “the only guide to private morals
and public policy”. Utilitarianism is its sole justification. Utility is the basis of Government.
Objectives of the State according to Utilitarianism

In the utilitarian State, political obligation depends upon the objectives of the State. When the
State sought to promote general welfare of the people, the people are obliged to obey the laws
made by the State.
“The State exists for the individual. But the individual does not exist for the State.”
Therefore, the State cannot absorb the individual. That means it is not purely supports
individualism and idealism.
“The main object of the utilitarianism is enlightened benevolence.”
Enlightened Benevolence
Everyone seeks pleasure and avoids pain. Utilitarianism has an ethical appeal. Reason
reconciles self-regarding and other regarding impulses of individual. Utilitarian approach to
political obligation does not separate individual from the society. It blends the individual
happiness with the happiness of others. This is called the philosophy of ‘enlightened
benevolence’.
Jeremy Bentham (1748 to 1832)

Jeremy Bentham was an English philosopher, Jurist, economist and Social reformer. He
regarded as classical philosopher and the founder of modern utilitarianism. He wasrightly
regarded as the foremost apostle of the practical and the leader of Utilitarian school of
England. He has been described as one of the oddest figures in the history of political
thought. His father was a lawyer. He also studied law at the Lincoln’s inn. Though he studied
law he was not interested on advocate profession. He concentrated on the study of legal
philosophy (Jurisprudence). His legal and political thoughts influenced the development of
welfarism. He worked in several fields like economics, logic, psychology, penology,
theology, politics and ethics etc. because of his eminent knowledge the Portuguese
Constitutional committed had took the services of Bentham.
Bentham was influenced by both Hobbes explanation about human nature and Hume’s
account of social utility.
4
The theory that all knowledge is based on experience derived from the senses.
3
His name would be remained as a reformer in the English legal history. He denounced
antiquates and the age-long institutions. He is one of the leading theorist in Anglo- American
philosophy of law. He opposed the idea of natural law and natural rights of the men. He had
made a serious comment about divine principle as it is “nonsense”. He supported for positive
law and individual legal rights. He advocated for individual and economic freedoms, the
separation of church and state, worked for freedom of expression, equal rights for women, the
right to divorce and he also proposed through an unpublished essay for decriminalizing of
homosexual acts. He supported for abolition of slavery, capital punishment (death) and
physical punishments (too much painful), more importantly he raised his voice against
violent punishments to children. He is well known animal lover and proposed for animal
rights.
By his virtues he influenced many well known persons among them James Mill and his son
John Stuart Mill, the legal philosopher John Austin and Robert Owen, who is the one of the
founder of ‘utopian socialism’, are prominent persons.
Bentham was the practical men with a typical character. One of the examples for this is his
will about his death. He left instructions for his body to be first dissected, and then to be
permanently preserved as an “auto-icon”, which would be his memorial. This was done, and
the auto-icon is now on public display in the entrance of the student centre at University
College London (UCL). He is the “spiritual founder” of UCL.
Bentham made his explanations in his famous work “Fragmentation of Government and
Introduction to the principles of moral and legislation”. He said that the true end of the
State was to promote the greatest happiness of the greatest number. In his theory the
following issues are the most important. They are
 Mankind placed between two sovereign masters
According to Bentham, “Nature itself has placed mankind under the governance of two
sovereign masters, namely Pain and Pleasure.” So, he said that it is the duty of the State or
the State is necessary to the individual to maximize his pleasure and minimize his pain.More
over according to him utility is “the property in any object whereby it tends to produce
benefit, advantage, pleasure, good, happiness or to prevent happening of mischief, pain, evil
or unhappiness.”
 Sanction
According to Utilitarianism the business of the government is to promote the happiness of the
society. If there is any disturbance the State has every power to punish the culprits. Bentham
distinguished four sanctions like physical/natural, religious, moral and political.
 The Physical or Natural Sanction comprises the pains and pleasures which we may
experience or expect, in the ordinary course of nature, not purposely modified by any
human interposition
 The Moral Sanction comprises such pains and pleasures as we experience or expect
at the hands of our fellows, prompted by the feeling of hatred or good will, or
contempt or regard; in a word, according to the spontaneous disposition of each
individual. The sanction may also be styled popular; the sanction of public opinion or
of honour, or the sanction of the pains and pleasures of sympathy.
 The Political Sanction comprises such pains and pleasures as may experience or
expect, at the hands of the magistracy, acting under law. This might, with equal
propriety, be termed the legal sanction.
 The Religious Sanction comprises such pains and pleasure as we may experience or
expect, in virtue of the forebodings and promises of religion.
Here, Bentham said that men obey the laws of the State because “the probable mischief” of
obedience is less than “the probable mischief” of disobedience.
 Pain and Pleasure could be calculated on Felicific Calculus
4
According to Bentham there are two kinds of pleasures and pains are there. They are
a. Simple pleasures or those which cannot be resolved into other (as the pleasures of
senses, wealth, skill, amity, good name, power, piety, benevolence, malevolence,
memory, imagination, expectation, assistance and relief etc.) and
b. Complex pleasures are those which can be resolved into various simple ones.
c. Simple pains are privation, awkwardness, enmity, ill-repute, benevolence,
malevolence, memory, imagination, expectation and association.
d. Complex painsare those which can be resolve into simple ones.
According to Bentham, pleasure or pain could be arithmetically calculated by taking into
account seven factors, namely.
i. Intensity (more or less efficaciousness)
ii. Duration (longer or shorter life)
iii. Certainty (consideration of definiteness or indefiniteness)
iv. Propinquity (consideration of nearness or remoteness of time)
v. Purity (accompaniment of all pleasure or pain)
vi. Fecundity (capacity of being productive or barren) and
vii. Extensiveness (the number of persons fallen under influence)
These seven factors influence on pleasures or pains. More over according to him the balance
will show the tendency of good or bad. Healso had given a list of 12 simple pains. These
factors make one pleasure more or less and create dimensions. But Bentham said that these
can be mathematically calculated. However, the critics said that pain and pleasure can’t
measure in quantitative methods.
 Utilitarianism rejects Natural rights and Social Contract theory
Bentham utilitarianism rejected the dogma of natural rights. He regarded the natural rights as
‘rhetorical nonsense upon stilt’. Rights are created not by nature, but by law (men made law).
Need not the contract, is the basis of state. People obey law because it aims at four ends, viz.,
security, substance, abundance and equality. Government exists because they promote
happiness of the people, but not because of any social contract.
 “The greatest good of the greatest number”
This is the most important formula of Bentham Utilitarianism. It is the central idea of this
theory. Each government is obliged to adopt such policies which could give the greatest good
of the greatest number. A government which works for the good of a few numbers is not at
all a good government. It is tyranny and unjustifiable government. Thus the principle of ‘the
greatest good of the greatest number’ is benevolent and universalistic shape. Bentham
explained that the happiness of one individual on the one side and that of the many on the
other, the formula of the greatest happiness of the greatest number is the right answer.
Bentham observed that only under a system of self-government, the interests of the governors
and those of the governed would coincide.
Bentham regarded State as law-making agency. According to him, the State is a group of
persons organized for the promotion and maintenance of happiness; but for this end, it acts
through law. By means of law, the State rewards or punishes so that the happiness is
increased and the pain decreased. According to him, the law should take cognizance of bad
actions and inflict punishment on the people so that the net balance of pleasure is increased
and that of pain decreased. Mere morality is not sufficient and unless law comes into
operation, bad things cannot be out of place. Only law being the command of the sovereign
can secure habitual obedience of the people.
5
John Stuart Mill (1806 – 1873)
Early life of the J.S.Mill

J.S.Mill was a British philosopher. He is a prominent economist, political philosopher and
more over he was worked as a civil servant in East India Company. He is the reformist of the
utilitarianism and the best of the individualist. He is the liberalist, feminist, supporter of
utilitarianism, representative democracy and economic freedom.
J.S.Mill was the son of James Stuart Mill, who is the best friend and follower of Jeremy
Bentham. J.S.Mill guided by God fathers James Stuart Mill and Jeremy Bentham. After the
death of his father he become independent researcher and became an ardent defender of
liberty. Mill regarded individual liberty as the supreme possession of man and declared “the
government is the best which governs the least” (laissez – fair theory). According to Mill
liberty included with the freedom of thought, expression, freedom of conscience, association
etc. He believed that the social well-being has inevitably bound with individual well-being.
Like these explanations and through his strong support to individual freedom he became one
of the prominent individualists. He advocated for compulsory education, minority
representation, woman franchise, plural voting, open ballot etc.
The famous works of the Mill are Principles of political economy, Essays on liberty,
Utilitarianism, Considerations on representative government, Subjection of women,
Autobiography etc.
J.S.Mill – Utilitarianism
In his famous works Utilitarianism and Individualism and liberty one can find the views of
the Mill about Utilitarianism and individualism. Though Mill is strong supporter of
Utilitarianism he himself declared that he is the reformist of the utilitarianism and proposed
several modifications. Because of this he became one of the prominent personalities in
utilitarianism approach. Mill considerably modified Bentham’s thesis of pleasure versus pain
by admitting and emphasizing the qualitative aspect of pleasure. He asserted that pleasures
also differ in quality. Those pleasures which go with the exercise of intellectual capacities are
higher and better than sensuous pleasures. Mill made a difference between higher quality of
pleasure and lower quality of pleasure. He preferred more noble pleasure over less noble
pleasure. The main differences between Bentham theory and Mill theory are
 Bentham advocated that the pleasures and the pains differ in quantity and not in
quality. He said that pains and pleasures can be computed mathematically. But Mill
said that pain and pleasure can’t be measured arithmetically they differ in quality
only.
 According to Bentham utilitarianism there is a gulf between individual interest and
general happiness. But Mill narrowed down the gulf between individual interest and
general happiness.
 Bentham recognized only external sanctions. But Mill recognized not only external,
but internal sanctions also which would constrain the individual to promote general
happiness, because every individual possesses a feeling for the happiness of mankind.
 Bentham’s principle of utility, in a society of wolves, would exalt wolfishness; in a
society of saint it would exalt saintliness. But according to Mill saintliness should be
the criterion of utility in any society whatsoever.
 Bentham utilitarianism supports “the greatest good of the greatest number”. But here
there is a chance for suppression of minorities’ rights. So, Mill supported
individualism.
 Bentham supported democratic government in any condition but Mill supported
monarchy for primitive man and democratic government for people who are able to
6
understand value of democratic government. It means Mill supported democracy

based on condition of man.
 Bentham purely did not accept State’s intervention in the individual’s liberty. But
Mill supported State control over the institution of private property by holding that it
can well impose taxation on the socially – created values.
However, Mill reformed Utilitarian concept with his liberal thoughts. But according to
criticism made by Wayper “In all these alterations that he makes in Benthamism, Mill
may think that he is defending it, but in fact he is destroying it”.
Conclusion
Utilitarian approach to political obligation demolished the theories of divine rights,
natural rights and social contract. This concept placed the individual before the State. It is
altruistic, but not egoistic.At present the concept of Utilitarian became the core concept of
all legislations. In fact the present democratic government based on the principle “the
greatest happiness to the greatest member”. Though the concept is not free from lacunas
they can be reduced in implementation of the principle.
1
Unit V
The Unjust Law - The problem of obedience to unjust law
Civil Disobedience and Political obligation
(Henry David Thoreau, Gandhiji)
Unit V- 1
The Unjust Law - The problem of obedience to unjust law
Introduction
The concept of political obligation is that the citizen must obey the laws of the State. Though
there is a big debate regarding origin and purpose of the State and why people should obey
the laws of the State it is so clear that at present nations are providing political obligations to
their subjects through laws. But, if that laws are not acceptable by the people because of its
unjust nature then showing obedience to unjust law leads to revolutions. So, first one should
know what law is, what is purpose of law, when law became unjust law and what are the
consequences for obedience to unjust laws. More what are the safeguards against unjust law.
What is law?
There is no certain meaning and definition to the law. However, in simple one can understand
that law means “A set of rules, regulation, bylaws, principles or a precedent etc. made by
competent authority to guide human conduct (external) to protect and promote rights of the
people like life, liberty, property and reputation, to provide law and orderto maintain peace in
the society and to improve prosperity in the society”.
What is the purpose of law?

Though there is no certainty and limitation regarding purpose of law. Different political
thinkers had explained different purposes to law.
The following are some of the purposes that should be fulfilled by law.
 To maintain law and order to provide security internal as well as external to maintain
peace in the society.
 To protect and promote rights of the people.
 To improve prosperity in the society.
 Now a day’s States are turned to welfare State from police State where the State
functions became more and more. The State has to do welfare to the people from
womb to tomb. So, purpose of the laws is becoming wider. ( law should not be static
and it should change in accordance with needs of the society)
 One of the important purpose of the law is distributive justice
The purpose of the law should be distributive. “Distributive justice” means it works to ensure
a fair division of social benefit and burdens among the member of the community. Equal
rights should be distributed to all the people of the society”.
However, it is true that Law is an instrument in the hands of the Society, Justice is the goal.
Ultimately the aim of law is justice. So for the better society obedience to law is necessary.
That means “a law abiding society is preferable then lawlessness, anarchy etc”.
2
Kinds of law
Main kinds of laws are
1. Eternal law 2. Divine law

(It is only known by God) (Known to people through holy books)
3. Natural law 4. Positive law/ Human mad law

(Known to people by reasoning) (Made by human beings for different
purposes)
But the most popular classification is only

1. Natural law
It is a law followed by people on their consciousness or reasoning. But in this law one cannot
find implementer or protector of law.
2. Positive law/ Manmade law
This is a law made by human beings to meet their needs. It can be further classified as
i. Enacted law -Legislations
ii. Precedents -Judge made law
iii. Customary law - Customs, traditions, usages etc
iv. Conventional law - Agreements ex: International laws
v. Equity, justice and Good Conscience
What unjust law means?

 One can find the question of just or unjust question regarding positive law only.
Because only in case of positive law only one can find maker, implementer, protector
of the law.
 Unjust means ‘not just’, ‘unfair’, ‘bad’ etc.
The problem of obedience to unjust law

Disobedience means refusal to obey the commands of law. Even if a law is bad on moral
grounds, one is expected to obey law (Hobbes).However, natural law theory sanctions
disobedience to bad laws (Locke and Rousseau). Thus positivists hold that disobedience to
law is not legally valid. But the decision to disobey the unjust laws rests with the individual
consciousness.
The problem of obedience to unjust laws is based on the relationship between morality and
law. While morality belongs to ethics, law relates to jurisprudence. The moral basis of
obligation is a matter of personal choice.
Obligations are several kinds like individual, group, social, economical, religious, political
etc. Except political obligation all other obligations are personal choices. In case of political
obligation obedience to it is generally absolute. But showing obedience to law (political
obligation) irrespective of its nature (just or unjust) will not give fruitful results. In this
concept different political thinkers expressed different views.
According to moralists, a law is no law at all if it comes into conflict with morality. But
moralist argument is rejected by positivists like Jeremy Bentham, Austin etc. According to
positivist, the validity of law does not depend upon its morality. But Radbruch, a German
jurist radically revised the positivist approach and stressed on importance of morality in law.
However, the debate regarding morality and law has been continuing still today.
3
Revision of Positivism
Gustav Radbruch1, a German jurist, radically revised the positivist approach to law in the post
second world war period. He formulated the doctrine that the fundamental principles of
human morality were part of the very concept of legality. A positivist enactment could not be
valid if it went against the basic principles of morality.
Romantic Optimism2
Prof. Hart, a British jurist, described Radbruch’s theory of moral basis to law as ‘Hysteria’.
This will lead to romantic optimism, since all values cannot be fused into a single system.
However, Prof. Fuller, an American jurist, asserted that the object of law was to create order
in society. He draws a distinction between order and good order. A good order is based on the
demands of justice and morality. An order as such is to be considered in all governments,
whether democratic or totalitarian. A good order must be based on value standard.
From the above it is well known to one is that there is a close connecting between morality
and law.
Internal morality and external morality

There is no inherent contradiction between law and morality. The authority to make law must
be supported by the moral attitude of the society. This is called the external morality of law.
This support makes the law competent. The internal morality of law also is to be respected.
These internal and external moralities of law influence each other in course of time. Thus, the
connection between law and morality is necessary for popular obedience.
Duty and Aspiration

(Duty – external morality, Aspiration – Internal morality)
Morality of duty is different from the morality of aspiration. The morality of duty consists of
basic rules necessary for the existence of society. But the morality of aspiration inspires
mankind to work for better ideals. The morality of duty corresponds to the external morality
of law. The morality of aspiration relates to the internal morality of law.
 Thus, morality of duty and morality of aspiration are the external morality and
internal morality of law. Both are necessary to guide human progress like
torches in the darkness.
Distinguishing Features of Law and Morality

The following four are the distinguishing features of both law and morality.
1
Gustav Radbruch (21 November 1878 – 23 November 1949) was a German legal scholar and politician. He
served as Minister of Justice of Germany during the early Weimar period. Radbruch is also regarded as one of
the most influential legal philosophers of the 20th century. after the end of the Second World War in 1945, he
resumed his teaching activities, but died at Heidelberg in 1949 without being able to complete his planned
updated edition of his textbook on legal philosophy.In September 1945, Radbruch published a short paper Fünf
Minuten Rechtsphilosophie (Five Minutes of Legal Philosophy), that was influential in shaping
the jurisprudence of values (Wertungsjurisprudenz), prevalent in the aftermath of World War II as a reaction
against legal positivism
2
Philosophers explained the relation between natural law (morality ) and positive law with the help of four
principles like Romantic, tragedy, irony, comedy (Romantic – irony, Tragedy – Comedy) (Optimism based on
the Analogy of Innocence (faith and reason)- ROMANTIC MODE and Optimism based on the Analogy of
Experience (skepticism and community)-IRONIC MODE
4
i. Moral rules are considered to be continuously important. But legal rules remain valid
till they are repealed;
ii. Moral rules cannot be changed deliberately. But legal rules can be changed, enacted
and repealed deliberately;
iii. Violation of moral rules have a voluntary character and can be excused;
iv. Moral rules exist on the demands of morality. But legal rules demand their habitual
obedience.
Desire for Higher law

The desire of the people to have a higher law than positive law is based on the following
grounds:
1. A feeling of discontent that the justice obtained under positive law is not adequate;
2. A desire to show that there are moral values which can be given a meaningful form;
and
3. The conviction that a law which denies these values is self-defeating and nugatory (no
value).
The problem of obedience to unjust laws is to be considered in this background.
Factors governing Disobedience

The decision to disobey a particular law depends upon the different factor.
 Different political scientist, thinkers, philosophers, expressed their opinions in
different ways and in different theories. The main schools are
1. Naturalists (based on morality)
Naturalists advocates that human made law must accompany with natural law. Otherwise
man can disobey such laws. But the decision to disobey the unjust laws rests with the
individual consciousness.
2. Positivists
Positivists hold that disobedience to law is bad and not legally valid. Even if a law is bad on
moral grounds, more over one is expected to obey laws.
Ex. Liven - relationship , Succession rights to daughters, right of property to illegitimate
children etc. however,
The decision to disobey a particular law depends upon the following factors.
1. Whether the whole legal order is good or has it got any short coming,
2. What is the place of law to be disobeyed in the legal order,
3. The degree of inequity of the law to be disobeyed, and
4. What would be the consequences of disobedience to that law.
Methods of disobedience – Non –violent Disobedience

There are two methods to show disobedience they are through
i. Violent methods
ii. Non – Violent methods
Prof. Harrop Freeman argues that disobedience is not illegal if it is not violent. Non-violent
disobedience is perfectly legal. It opposes only a particular law but respects the legal system.
Non-violent disobedience is opposed to the letter of the law but not to the spirit of the law.
Therefore, the non-violent form of disobedience to law does not disrespect law; but respects
legal order. It is not ordained so much against the law as such, as it is against the letter of the
law.
Gandhian philosophy of non-violent civil disobedience as a political weapon is based on the
relation between individual morality and institutional legality. Civil disobedience is not
5
opposed to the spirit of law. It is a public non-violent act of illegality performed for a moral
purpose with willingness to accept the legal justice. It is neither fully legal, nor fully illegal. It
may be illegal. But its illegality is marked by an anxiety to protect the legal order. Thus, law
and morality are reconciled with each other.
Safe – guards against unjust laws

The Nation/State/ govt. may pass unjust laws having brute majority in the legislature. But in
democracy there is several agencies work as safeguards against unjust laws. They are
i. Print, Electronic and Social media (create analytical knowledge to people)
ii. Opposition parties (through questions on policy)
iii. Judiciary (Judicial review power)
iv. People (pressure groups, interested groups etc. through agitations)
v. Voluntary organizations etc.
The solution - Co-incidence of Law & Morality
The solution to the problem of obedience to unjust laws lies in the relation between law and
morality. For a long time morality came to be equated with Natural law. But the positivists
denied the existence of Natural Law. Then morality remained largely vague, voluntary and
individualist. But law is specific, compulsory and institutional. Legal validity need not
necessarily depend upon moral acceptance. Therefore, obedience to a law morally untenable
is repugnant to the consciousness of the individual. Hence, law and morality should coincide
with each other in order to secure the complete compliance of the citizens.
Famous person/ chief exponents of the concept of civil disobedience as protest to unjust
law
1. Henry David Thoreau (1817 -1862)

2. M.K.C. Gandhi (1869 -1948)
Civil disobedience means the specific protest against the law of the State.
Unite V -2 Henry David Thoreau
Introduction:
Henry David Thoreau was born in 1817 in Concord. He was an American essayist, poet,
environmentalist, naturalist, individualist, tax resister, the slavery abolitionist and philosopher
and so on. He was educated in Harvard University and became a close associate of Rupert
Emerssion3.The influence of Rousseau, Jefferson4 and Tolstoy5 on Thoreau was impressive
and substantial.
3
(August 20, 1899, in Rye, NY – February 9, 1979, in Cambridge, MA) was a professor of political science and
international relations. He served on the faculty of Harvard University for forty-three years and served in
various U.S government positions.
4
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect,
philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He
previously served as the second vice president of the United States from 1797 to 1801. The principal author of
the Declaration of Independence, Jefferson was a proponent of democracy, republicanism, and individual rights,
6
Thoreau was a philosophical rebel and asserted the right of the individual to resist the
institutional conventions to enslave him. His approach to political obligation was based on
the dignity and integrity of the individual.
Famous works
Henry David Thoreau is best known for his book Walden, a reflection upon simple living in
natural surroundings, and his essay "Civil Disobedience" (originally published as "Resistance
to Civil Government"), an argument for disobedience to an unjust state.Thoreau's books,
articles, essays, journals, and poetry amount to more than 20 volumes.
Civil Disobedience
Thoreau’s famous and most popular book on ‘Civil disobedience’ (1864 clearly explained the
right of the individual to obey the dictates of his conscience rather than the dictates of the
State. He preferred to go to jail rather than pay taxes to a government which condoned human
slaver. His Civil Disobedience was a favourite book of Tolstoy and Gandhiji.
Thoreau Strong support and Respect for individual

Thoreau asserted, like many individualist, that the authority of the government is an impure
one. But it must have the sanction and consent of the governed in order to be strictly just. The
progress from an absolute to a limited progress is a true respect for the individual. Even the
Chinese philosopher Confucius, regarded the individual as the basis of the empire. Thoreau
declared, like Gandhijui and Jefferson that there would never be a really free and enlightened
State until the State came to recognize the individual as a higher and independent power,
from which all its power and authority were derived.
Thoreau’s views on Disobedience to Unjust laws

Thoreau had no faith in the existing laws. He called them unjust laws which strangle man’s
freedom. He questioned their propriety and asked the people to break unjust law. Thoreau
himself refused to pay poll (tax) for nearly six years. Consequently, he was put into a jail and
physically tortured. But he did not acquiesce in the policy of government and remained
undoubted in his challenge against it. He bravely smiled at the weakness of the government.
Thoreau recognized the Right of Revolution

With a view to redeeming the individual from the evil influences of the government, Thoreau
recognized the necessity of the right of revolution. According to him, all men recognize the
right of revolution, i.e., the right to disobey the government, when its tyranny and
inefficiency are great and un-edurable. Thoreau advised the individual to obey the dictates of
his conscience and determine the value of every question rather than to submit to the desires
of the State.
Thoreau raised his voice for Abolition of Slavery
motivating American colonists to break from the Kingdom of Great Britain and form a new nation; he produced
formative documents and decisions at both the state and national level.
5
Lev Nikolayevich Tolstoy(9 September 1828 – 20 November 1910), usually referred to in English as Leo
Tolstoy, was a Russian writer who is regarded as one of the greatest authors of all time. He received multiple
nominations for the Nobel Prize in Literature every year from 1902 to 1906 and nominations for Nobel Peace
Prize in 1901, 1902 and 1910 and the fact that he never won is a major Nobel prize controversy.
7
Thoreau rightly regarded the slavery as a bolt on the humanity. He considered John Brown 6,
the slavery abolitionist, as a great hero. Thoreau advised the abolitionists to immediately
withdraw their support from the Massachusetts government without waiting till they
constituted a majority. He explained that respect for rights was more desirable than respect
for law. Therefore, Thoreau boldly condemned the Government of Massachusetts (USA) on
the question of slavery.7
Thoreau is not the anarchist – he is the supporter of Good Government

Though Thoreau showed all his anger against the evil governments he was not a moral enemy
of the State and its organizations. As such he did not believe in a theory of a violent
revolution. He is not the anarchist. He asked for a better government which educates masses,
promotes free trade (but not capitalism) and keeps the country free. But the State should
never coerce the individual. According to Thoreau, a good government is always based on the
consent of the individuals and allows them to live honestly and comfortably.
Conclusion
Finally, Thoreau, following the footsteps of Rousseau and Tolstoy, stood for a simple life. He
firmly believed in the dignity of human behavior, he tried to give a moral tinage to all human
efforts and aspirations. He looked with utmost interest for all round development of
individual personality. He was a rebel against the authoritarian rule of any government.
Thoreau, is one of the most influential of all American writers.
Unit V – 3 M.K.C. Gandhi – Gandhism - Sarvodaya
Introduction
Mohandas Karamchand Gandhi (2 October 1869 – 30 January 1948) was an Indian
lawyer, anti-colonial nationalist, political ethicist, political, social and social reformer and a
moral revolutionary. who employed nonviolent resistance to lead the successful campaign for
India's independence from British Rule,and in turn inspire movements for civil rights and
freedom across the world. The honorific Mahātmā (Sanskrit: "great-souled", "venerable"),
first applied to him in 1914 in South Africa, is now used throughout the world. He is also
famous as Bapu, Father of the Indian Nation. He never claimed that he is the leader and other
should follow him. He described his role as a citizen of the work. He lived and died for the
Country. He was a holy man in politics. He insisted on the purity of both ends and means. In
fact he was not a systematic academic thinker in the field of political philosophy. He
6
John Brown (May 9, 1800 – December 2, 1859) was an American abolitionist. Brown advocated the use of
armed insurrection to overthrow the institution of slavery in the United States. He first gained national attention
when he led small groups of volunteers during the Bleeding Kansas crisis of 1856. He was dissatisfied with the
pacifism of the organized abolitionist movement: "These men are all talk. What we need is action—action!" In
May 1856, Brown and his supporters killed five supporters of slavery in the Pottawatomie massacre, Brown's
actions as an abolitionist and the tactics he used still make him a controversial figure today. He is both
memorialized as a heroic martyr and visionary, compared sometimes with Christ, and vilified as a madman and
a terrorist.
7
Abraham Lincoln (February 12, 1809 – April 15, 1865) was an American statesman and lawyer who served as
the 16th president of the United States (1861–1865). Lincoln led the nation through its greatest moral,
constitutional, and political crisis in the American Civil War. He preserved the Union, abolished slavery,
strengthened the federal government, and modernized the U.S. economy. However, The Thirteenth
Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude,
except as punishment for a crime. In Congress, it was passed by the Senate on April 8, 1864, and by
the House on January 31, 1865. The amendment was ratified by the required number of states on December 6,
1865.
8
expressed his opinions on various occasions. His expressions and thoughts later came to
famous as “Gandhian Principles”, “Gandhism”. The concept of Gandhi is “Sarvodaya” (the
Good of all).
Early life
Born and raised in a Hindu family in coastal Gujarat, western India, Gandhi was trained in
law at the Inner Temple, London, and called to the bar at age 22 in June 1891. After two
uncertain years in India, where he was unable to start a successful law practice, he moved to
South Africa in 1893 to represent an Indian merchant in a lawsuit. He went on to stay for 21
years. It was in South Africa that Gandhi raised a family, and first employed nonviolent
resistance in a campaign for civil rights during 1908 to 1913.For the first time he worked
against racialism in South Africa. Later, on the request of Gopala Krishna Gokhale (the
political guru to Gandhi) in the year 1915 at the age of 45years he entered in to Indian
independence movement.
He was influenced by
Gandhi was influenced by different philosophers and by different philosophies. The influence
of Lee Tolstoy, Ruskin8 and Thoreau on Gandhi was significant and profound. He said that
“Truth is God”. All religions in the world say about peace only. Gandhi was impressed by
Karmayoga of Gita. According to him, Karmayoga means disinterested pursuit of one’s
obligations and duties and that signified a cosmic and spiritual awareness.
Gandhiji famous works

Gandhi was a prolific writer. The Collected Works of Mahatma Gandhi is around 50,000
pages in total! Surprisingly, however, Gandhi only wrote a few books. Most of his writings
were in the form of articles, essays, and letters. Gandhi founded and edited several
newspapers/journals including Indian Opinion, Young India, and Harijan.
1. All Men are Brothers
2. Diet and Diet Reform
3. Gandhi's Autobiography- Abridged
4. The Bhagavad Gita
5. The Story of my Experiments with Truth - An Autobiography
6. Trusteeship
7. Truth is God
8. Satyagraha in South Africa
9. Unto this Last - A Paraphrase
10. Swaraj or Indian Home Rule etc.
Gandhi’s approach to political obligation

Gandhi wanted to establish “Rama Rajya” on the basis of Karmayoga. He said that the
concept of Utilitarianism (greatest happiness to greatest number) is not correct the society
should adopt “Sarvodaya” (the good of all). He said that the existing society is to be
8
John Ruskin (8 February 1819 – 20 January 1900) was the leading English art critic of the Victorian era, as
well as an art patron, draughtsman, watercolourist, philosopher, prominent social thinker and philanthropist.
He wrote on subjects as varied as geology, architecture,
myth,ornithology,literature,education,botany and political economy.
Unto This Last is an essay and book on economy by John Ruskin, first published between August and
December 1860 in the monthly journal Cornhill Magazine in four articles. Ruskin says himself that the articles
were "very violently criticized", forcing the publisher to stop its publication after four months. Subscribers sent
protest letters, but Ruskin countered the attack and published the four articles in a book in May 1862. The book
greatly influenced the nonviolent activist Mohandas Gandhi.
9
gradually transformed into a Sarvodaya society by modifying and purifying the existing
institutions still the people are worth to be free of the State and government.
According to Gandhi the present State can be modified gradually through non –violence,
decentralization (Swaraj and Janshakti), cottage industries, common heritage of wealth,
secularism and Lokniti (party less democracy) in the place of Raj Niti.Gandhiji considered
the State as an organization of violence and force. The coercive character of the State shall be
repelled. Gandhiji explained his philosophy on civil disobedience in his famous book Indian
Home Rule. His approach on political obligation was based on Satyagraha (Civil
disobedience and non – cooperation), Non-violence, Truth and Sarvodaya.
Technique of Satyagraha
Satyagraha is Gandhi’s unique and distinct contribution not only to the technique of
revolution, but also to the store of human knowledge. Satyagraha means the righteous
indignation against the unjust laws of the civil government. Gandhiji invented the new name
‘Satyagraha’, and inducted it in South –African politics first and later in Indian politics.
Gandhiji evolved a way of resisting evil through Satyagraha. It is a new philosophy of action.
He said that Satyagraha is a weapon of the strong and the bravest. It is a powerful technique
of evolutionary revolution. He explained the birth and meaning of Satyagraha in his book
“the Story of my experiments with truth”.
According to him, Satyagraha is a vindication of truth by bearing witness to it through self
suffering, in other words, love. Satyagrahi is a person who adopts satyagraha as method
against unjust law. Satyagrahi proceeds through the process of identification and
involvement. He or she establishes his/ her spiritual identity with the opponent and awakens
in him a feeling that he cannot hut him without hurting his own personality. Satyagrahi
kindles ‘the divine spark in the opponent’s soul’. Therefore, Satyagraha is rightly regarded as
the ‘soul force’ or the ‘love of force’’.
Satyagraha must be qualitative not quantitative

Gandhiji recommended the practice of Statyagraha by a select few in the first instance.
Quality should be the prime consideration and the selection of the laws to be broken should
be made not by each Satyagrahi himself, but by the leader or some centrally constituted body
of expert satyagrahis.
Satyagraha techniques
Civil disobedience and non cooperation are the main techniques of Satyagraha.
i. Civil disobedience
Gandhiji defined civil disobedience as the “breach of unmoral statutory enactments” (unjust
laws). It is “a complete effective and bloodless substitute of armed revolt”. It signifies “the
resister’s out Lawry and a civil, i.e., non-violent manner”. He said that civil disobedience was
a just and moral duty of citizens against an unjust, autocratic and imperialistic political order.
Gandhiji put greater emphasis on the word ‘civil’ than on obedience so that the movement
might not become uncivil and violent. Civil disobedience is the last stage and the most drastic
from of non – cooperation.
Objects/Aims of Civil Disobedience

According to Gandhiji, disobedience to be civil must be sincere, respectful, restrained, never
defiant, must be based upon some well understood principle, must not be capricious and must
have no ill will or hatred behind it. Its use must be guarded by all conceivable restrictions.
Every possible provision should be made against an outbreak of violence or general
10
lawlessness. Its area, as well as its scope, should also be limited to the barest necessity of the
case. Gandhiji says not only ends but also means should be pure.
Example : the Civil Disobedience movement done by Gandhiji in India during the years 1930
-1931 which is famous as Salt Satyagraha.
ii. Non –Cooperation

Gandhiji successfully employed the techniques of non-violent non cooperation as an effective
means of Civil Disobedience to unjust laws of an evil government. Oppression and
exploitation are made possible by willing or forced cooperation of the oppressed in their own
exploitation or exploitation or oppression through cupidity, ignorance or fear. If all the people
ceased completely to cooperate with an unjust or tyrannous system, it must completely
collapse. “Even the most despotic government cannot stand except for the consent of the
governed, which consent is often forcibly procured by the despot. Immediately the subject
ceases to fear the despotic force, his power is gone.”
Non – cooperation with the evil –doer was a mild form of Satyagraha. It was simple. Greater
quantum of risk which was required as in case of civil disobedience was not required in case
of non- cooperation movement. The number of participants was lesser in this movement.
Comparing with non- cooperation civil disobedience was more success. However, non –
cooperation movement sown the seeds of revolution in the minds of Indians, and paved the
way to further movements in future. The non – cooperation movement had objectives viz. the
remedying of two specific objectives viz. the remedying of two specific ‘wrongs’ and the
demand for a vague swaraj.
Example : the non cooperation movement lead by Gandhiji in India during the years 1920 -
1922.
What is true of governments also applies to other exploiting groups and organizations. Non –
cooperation with evil takes the form of self purification in the Satyagrahi himself and the
withdrawal on his part of the evil. No – cooperation thus, stresses the purity of means and the
purity of ends as well as the purity of motives and intensions.
Conclusion
According to Gandhiji non –violence is the law of our species as violence is the law of the
brute. For Satyagraha, non – violent non cooperation and civil disobedience are nothing but
new names for the law of suffering. Thus, Gandhiji gave ancient solution for modern
problems. He is the philosophical anarchist. Gandhiji aim is to achieve “Sarvodaya” (the
good of all).
1
Unit VI
Foundations of promissory and contractual liability
Introduction
Man is a social animal, means a man can’t live without society and he always depends on
others for various purposes. At the same time man is also a political animal where a man is
obliged to follow political obligation or laws enacted by State. State makes different laws,
law is an instrument in the hands of the State to regulate law and order in the society and to
protect man’s personal rights, liberty, property etc. So, it is evident that law controls or
guides the human conduct and human relations in the society. Being a part in the society man
is needed to follow certain rules and regulations either they are based on morals or based on
law either in the form of customs, self made rules (contracts), legislations and judge made
law. In this journey one can find the foundation for promise/promises and contracts.
Generally a promise is the outcome of an offer and acceptance and when a promise along
with consideration valid in the eye of law it will be a contract.
Contract is a civilized form of promise along with State made sanctions in case of failure to
perfume it and promise is based on morals and roots of trust and mutual benefit.
Thus, a promise is the expression of an intention to do or not to do some act. A promise is
binding if it forms a part of a contract. A contract is an agreement enforceable by law. In law,
contract is the foundation of all legal transactions.
Promise
Promise means engagement for the performance or non – performance of some particular
thing.
According to Section 2(b) of the Indian Contract Act, 1872 promise means when the person
to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted.
A proposal, when accepted, becomes a promise.
Section 2(c) defines Promisor and Promisee : the person making the proposal is called the
promisor and the person accepting the proposal is called the promise.
 Promise or set of promises + Consideration = agreement

 Offer/proposal + acceptance = agreement
 Agreement + validity = Contract
Contract
The word ‘Contract’ is derived from the Latin term ‘Contractum’, which gives meaning
‘drawn together’. Thus the meaning of ‘contract’ is “a drawing together of two or more minds
to form a common intention giving rise to an agreement”.
Kinds of contracts
Based on validity
1. Valid contracts
2. Void contract and
3. Voidable contracts
4. Unenforceable contracts
5. Void agreements
6. Illegal agreements
2
Based on formation
1. Express contract
2. Implied contract
3. Quasi – Contracts (liability by law)
Performance
1. Executed contract
2. Executor contract
3. Unilateral contract
4. Bilateral contract etc.
Basic essentials for contract

1. Offer and acceptance
2. Legal intention
3. Lawful consideration
4. Free consent
5. Capacity of parties
6. Law full object
7. Legal formalities
8. Certainty of meaning
9. Possibility of performance
10. Not declared to be void etc. (Section 10 of the Indian contract Act, 1872)
Relation between promise and contract

Promise is part of a contract. There can be no contract without a promise. Contracts and
promises are to be honored because they protect the life, liberty and property of the
individuals. Trust and confidence in contracts and promises fortify mutual interest. Keeping
the contracts and promises is in each other’s interests.
Aim or purpose of the promises and contracts

Utility and autonomy provide the moral basis for the performance of contracts and promises.
Sanctity of contract and promises

According to David Humea, respect for person, property and contract constitutes the
foundations of law and justice. The law of property and the law of torts recognize our rights
as individuals. The law of contract facilitates our disposing of these rights on terms that seem
best to us. We honour promises made by us. Because we believe that promises are sacred per
se. in the modern age, contracts are in writing by way of conveyances. In the olden days,
promises were taken into consideration. Violation of a promise, they believe to be sin. Even
now, the civilized society does not tolerate the violation of promises. Common man also
hesitates to violate his promises.
According to David Lewis there are two important principles for honoring promises and
contracts. They are
1. Is Legal Sanction and
2. Moral obligation
Promise and Contract creates autonomy

Autonomy is also a basic ground for promising institutions as well. The obligation to keep a
promise is similar to but more constraining than the obligation to tell the truth.
3
Promise and Contract based on moralism, utility and Trust

A promise binds the parties in future also. Trust and confidence in promises and truthfulness
have a great social value. A moralist looks at the promise as a device of increasing mutual
trust. A moralist respects the obligations to keep promise. A contract must be kept because a
promise must be kept.
Consideration of utility also provides the moral basis of one’s own obligation to keep a
promise. The individual’s moral obligation is governed more by what would be best for him
than by what would be best at a time.
Promise is the root of trust. Trust generates confidence. Confidence is based on the belief that
the other party will do what is right. Therefore, trust will add a new power to accomplish his
will. This new power is only a moral power. This additional moral power increases his ability
to perform the promise. Thus, the institutions of promise and contract are devices which bind
the parties to one another. Hence, they expect a future performance.
Conclusion
In case of promise or contract there is a promise to do or not to do some act. It gives strength
to society for business relations and it creates interdependency among people, if any violation
in this it raises law and order problem in the society. So, State being the protector of the
individual rights and peace and prosperity in the society needs to regulate guidelines for
liability for promises and contracts. In case of violation of these Obligations State will get the
authority to punish wrongdoers.
The Problem of Punishment (or) States force against Citizen
Introduction:
 The primary duty of the society (or) state is to protect its subjects life, liberty,
property, reputation & all other rights. If anyone violates the law enacted by
state then it has every power to show its force against citizens (or) to punish
them.
 The word punishment often we heard in our day to day life (social (or)
political)
 The word punishment means suffering Psychological (or) physical pain for
wrong doing by an accused.
Ex: In our social life we also use the word punishment.
 However, by the advancement of human civilization (when people started to

live together) the concept of punishment crystalized.
 Ancient period – suffer himself punish the offender (when man is not social
being)
 Ancient period – society started to punish on behalf of victim(when man

entered into society)
 Medieval period – kings/ village heads etc.
 Modern period – state (through judiciary)

However at present the concept of punishment one can witness in criminal
law.
 Wrongs are of two kinds (majority)

o Civil – Aim is to restore the position of victim.
o Criminal – aim is to punish.
Meaning:
Punishment is the penalty for the transgression of law.
(or)
Punishment is the infliction of pain (or) loss of life, freedom, rights (or) property,
deliberately imposed on an individual without his consent and against his will.
Object/ Aim of punishment:
 To control law and order in the society by guarding human conduct.

 To protect freedom of every individual. If anybody violates the freedom/rights
of other (because they are vulnerable) the state should protect them.
 To show superiority (or) authority state should use its force against citizens for
their welfare.
 To protect justice in the society.
 To limit (or) to control crime.
 Different theories says different object behind punishment.
Elements of punishment:
 It must involve an evil (or) an unpleasantness to offender.

 It should be provide to offender for committing an offence.
 It should be imposed on offender only (not on his family).
 It must be imposed by authority/state.
 The unpleasantries should be actual not merely.
 It should involve pain to the offender either physically (or) financially.
 It should to involve the main motto of revenge, protection of society,
reformation of offender.
Kinds of Punishments:
There are several kinds of punishments prevailed in society since from ancient to
today. Different kinds in different nations. However, in India the major criminal law
(general criminal law) is Indian Penal Code, 1860. It suggest 6 kinds actually but at
present five are there.
1. Death
2. Imprisonment for life (until last breath not 14 years (or) etc)
3. Penal servitude (1949 it was removed)
4. Imprisonment – single, rigorous
5. Forfeiture of property
6. Fine (imposing single rupee is also a fine)
Besides these – externment, internment, community services etc also providing.
Externment: As per section 55 of Bombay Police Act, 1951, if the movement or

encampment of any gang or body of persons is causing or is calculated to cause
danger or alarm or reasonable suspicion that unlawful designs are entertained by
such gang, or by members thereof, then such gangs/ bodies of persons can be
dispersed and ordered that they remove themselves outside the area. This is
process is called externment of gangs and Sub Divisional Magistrates in Districts
and DCsP in Commissionerates are empowered to pass such orders.
Similarly, section 56 of Bombay Police Act, 1951 empowers the above named
authorities to extern persons engaged in or about to be engaged in offences
punishable under Ch XII - XVI – XVII I.P.C. .(for details, please refer sections 55-56
of Bombay Police Act, 1951.
Internment:Means the imprisonment or confinement of enemy aliens or people in

large groups, who are suspected of disloyalty in specially designed areas without
trial. A confinement effected during wartime is also called internment. For instance
when persons are taken into custody by a non-belligerent foreign power as the result
of and for reasons arising out of any armed conflict in which the U.S. is engaged,
such persons are said to be in internment. The persons who are confined under
internment are considered to be in a missing status.
Theories of Punishment:
There are five major theories behind punishment. They are
1. Deterrent Theory: Deter means creating fear among – offenders & to others.
2. Retributive Theory: It means “to give back” – eye for eye, tooth for tooth, life
for life, etc.
3. Preventive Theory: Preventing (or) making capacity less to do a crime
(further).
4. Reformative Theory:
- Reform and make offender as useful citizen

- Gandhiji “hate the sin, and not the sinner.”
- Crime is a disease and offender is the patient. So he/she should be
diagnosed. & treated.
- Modern form of punishment (welfare state).
5. Expiatory Theory: “Separation”. Compelled to compensate.

Guilt + Punishment = innocence
Conclusion:
J.S. Mill says that “the purpose of punishment is to prevent harm to others”. It means
state should use only limited/sufficient coercion for citizen to control law and order. It
should not use it for selfish motive by state. It should not use excessive force (or)
violate individual rights.

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Unit II: POWER, AUTHORITY AND LEGITIMACY

Power ->->->->->-> Authority ->->->->->->Legitimacy

Legitimacy is the foundation of authority and authority is the instrument/ institution

Meaning and Origin

2. “Power is the capacity of an individual, or a group of individual, to modify the

Unit II: POWER, AUTHORITY AND LEGITIMACY

Power ->->->->->-> Authority ->->->->->->Legitimacy

Legitimacy is the foundation of authority and authority is the instrument/ institution

Basic features or Characteristics of Authority

Sources and kinds of authority (Max Weber explanation about authority)

1. Legal –rational source or Legal & rational authority

3. Charismatic source – Charismatic authority

1. Religious source (ex: Pope of Vatican city, Dalailama of Tibet etc.)

Differences between power and authority

Unit II: POWER, AUTHORITY AND LEGITIMACY

Power ->->->->->-> Authority ->->->->->->Legitimacy

Legitimacy is the foundation of authority and authority is the instrument/ institution

Source for legitimacy

i. Thomas Hobbes (1588 -1679)

Hence, sovereign is supreme, unlimited, inalienable, permanent, indivisible and absolute.

3. John Locke (1632 – 1704)

a. State of Nature (Pre-political but not pre-social)

4. Jean – Jacques Rousseau (1712-78)

a. State of Nature (first so happy latter turned in to unhappy)

Charisma literally means gift of grace. By virtue of possession of charisma or an exceptional

2. Karl Marx (1818-1883)

Permanent revolution operates as a catalytic agent in this process of transformation. This,

3. Emile Durkheim (1858-1917)

Difference between Usurpation and Legitimacy

Reasons for the loss of legitimacy

Unit IV: Utilitarian Approach / Utilitarianism

Objectives of the State according to Utilitarianism

Jeremy Bentham (1748 to 1832)

John Stuart Mill (1806 – 1873)

Early life of the J.S.Mill

understand value of democratic government. It means Mill supported democracy

The Unjust Law - The problem of obedience to unjust law

What is the purpose of law?

1. Eternal law 2. Divine law

3. Natural law 4. Positive law/ Human mad law

But the most popular classification is only

What unjust law means?

The problem of obedience to unjust law

Internal morality and external morality

Duty and Aspiration

Distinguishing Features of Law and Morality

Desire for Higher law

The problem of obedience to unjust laws is to be considered in this background.

Factors governing Disobedience

Methods of disobedience – Non –violent Disobedience

Safe – guards against unjust laws

1. Henry David Thoreau (1817 -1862)

Unite V -2 Henry David Thoreau

Thoreau Strong support and Respect for individual

Thoreau’s views on Disobedience to Unjust laws

Thoreau recognized the Right of Revolution

Thoreau raised his voice for Abolition of Slavery

Thoreau is not the anarchist – he is the supporter of Good Government

Unit V – 3 M.K.C. Gandhi – Gandhism - Sarvodaya

Gandhiji famous works

Gandhi’s approach to political obligation

Satyagraha must be qualitative not quantitative