JURISPRUDENCE PROJECT WORK

LAW AS IS AND LAW OUGHT TO BE

SUBMITTED TO:
Ms. Anukriti Mishra
Faculty, Political Science

SUBMITTED BY:
Syed Zeeshan
B.A.LL.B. (Hon.)
Semester – V, Section A,
Roll no. 163

Date of submission: 23th September 2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

 DECLARATION

I, Syed Zeeshan hereby declare that this project work is a original piece
of research and is not a result of plagiarism, the sources of data has been
adopted from other sources as well and proper mention about such sources has
been made in the form of footnotes and in bibliography.

I have completed this project work under the guidance of Ms. Anukriti
Mishra faculty of Jurisprudence, Hidayatullah National Law University. Raipur
(C.G).

Syed Zeeshan

Roll No. 163

Semester -V, Section – A

B.A. L.L.B (Hons.)

ii
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with
sheer hard work and honesty.

This research venture has been made possible due to the generous co-operation of
various persons. To list them all is not practicable, even to repay them in words is beyond the
domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-
charge Ms. Anukriti Mishra for his kind gesture in allotting me such a wonderful and
elucidating research topic. Sir, your sincere and honest approach have always inspired me
and pulled me back on track whenever I went astray.

Last, but by no means the least, I would like to thank all the members of HNLU
family in general and my blooming and charismatic friends in particular for their
wholehearted co-operation throughout the odyssey.

I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.

Syed Zeeshan

Section – A (Political Science Major)

B.A. L.L.B (Hons.)

iii
 Table of Content

No Page

I Objectives 1
II Research Methodology 1
III Introduction 2

Ch.1 The Natural School Of Law 4

Ch.2 The Positive School Of Law 6

Ch.3 India’s Postition at Global Level 8

Conclusion 12
Bibliography 13

iv
OBJECTIVES

The basic Objective of my study is to develop an understanding of:-

1. To understand the Natural School’s view of Law.

2. The understand the Positivist School’s view of Law.

3. To have a critical understanding of both the schools in contrast of each other.

RESERCH METHODOLOGY

The method of research adopted for the project is analytical methodology. For the present
project relevant data and information has been received and collected from secondary sources
and there has been use of authentic books and websites that provided reliable information and
data.

1
 INTRODUCTION

Jurisprudence is the theory and philosophy of law.

The Latin word juris is the genitive form of jus meaning "law." So, juris means "of law" or
"legal." Prudentia, meaning "knowledge" in Latin, translates into English as "prudence." The
native English word is "wisdom," which originally also meant "knowledge." As jurisprudence
has developed, there are three main aspects with which scholarly writing engages:

The natural law concept has taken several forms. The idea began with the ancient Greeks'
conception of a universe governed in every particular by an eternal, immutable law and in
their distinction between what is just by nature and just by convention. Stoicism provided the
most complete classical formulation of natural law. The Stoics argued that the universe is
governed by reason, or rational principle; they further argued that all humans have reason
within them and can therefore know and obey its law. Because human beings have the faculty
of choice (a free will), they will not necessarily obey the law; if they act in accordance with
reason, however, they will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with
the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the
reason of divine wisdom") which is knowable by human beings by means of their powers of
reason. Human, or positive, law is the application of natural law to particular social
circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law
is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural
law theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius
believed that humans by nature are not only reasonable but social. Thus the rules that are
"natural" to them -- those dictated by reason alone -- are those which enable them to live in
harmony with one another. From this argument, by the way, Grotius developed the first
comprehensive theory of international law.

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Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued
that human beings in the state of nature are free and equal, yet insecure in their freedom.
When they enter society they surrender only such rights as are necessary for their security
and for the common good. Each individual retains fundamental prerogatives drawn from
natural law relating to the integrity of person and property (natural rights). This natural rights
theory provided a philosophical basis for both the American and French revolutions. Thomas
Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were
stated in the United States Declaration of Independence.

Standing in stiff opposition to natural law school of jurisprudence is legal positivism. Legal
positivism stands for almost everything that natural law school advocates. Legal positivism is
a theory of law that emphasizes the ‘is’ as against the ‘ought.’ What this means is that it seeks
to adopt the scientific approach to the study of law by focusing only on phenomena that can
be experimented, observed, or demonstrated. Thus, it is descriptive, and not prescriptive.

Within the big family of legal positivism, there are sub-theories with which outstanding
individual positivists are peculiarly identified. Such sub-theories include the command or
imperative theory of law (associated with John Austin), and Grundnorm (connected with
Hans Kelsen). Another positivist theory but which is not discussed along with classical
positivism is utilitarianism, which is identified with Jeremy Bentham.

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CHAPTER-1

THE NATURAL SCHOOL OF LAW

The concept of natural law has taken several forms. The idea began with the ancient Greeks'
conception of a universe governed in every particular by an eternal, immutable law and in
their distinction between what is just by nature and just by convention. Stoicism provided the
most complete classical formulation of natural law.

Of all the Schools of jurisprudence, natural law school stands out. This is so not because it is
the most important of all the schools but on account of the fact that it is about the only theory
that is sustained by idealism. In other words, natural law exists not in the material world but
in the world of ideas. All other schools have one or more negative things to say about the
failure of natural law to meet the test of science, that is, its inability to be demonstrated
scientifically.

There is a dearth of consensus on the definition and description of natural law. Consequently,
different people perceive natural law differently. Thus, while classical philosophers like
Plato, Aristotle, St. Augustine, and Thomas Aquinas offer similar definitions of natural law,
modern natural lawyers attribute to natural law what classical natural law theorists could not
have probably envisaged.

Natural law is that branch of law that is variously defined or described as the law of nature,
higher law, eternal law, divine law, etc. While defining or explaining the scope of natural
law, Roman orator, Cicero, said as follows:

True law is right reason in agreement with nature; it is of universal

application, unchanging and everlasting; it summons to duty by its commands, and
averts from wrongdoing by its prohibitions. And it does not lay its commands or
prohibitions upon good men in vain, though neither have any effect on the wicked. It
is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it,
and it is impossible to abolish it entirely. We cannot be freed from its obligations by
senate or people, and we need not look outside ourselves for an expounder
orinterpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be
valid for all nations and all times, and there will be one master and ruler, that is,
God, over us all, for he is the author of this law, its promulgator, and its enforcing

4
 judge. Whoever is disobedient is fleeing from himself and denying his human nature,
and by reason of this very fact he will suffer the worst penalties, even if he escapes
what is commonly considered punishment.1

According to Burlamqui in his Principles of Natural Law (1751):

Natural law comprises rules which so necessarily agree with the nature and state of
man that, without observing their maxims, the peace and happiness of society can
never be preserved …. They are called natural laws because a knowledge of them
may be attained merely by the light of reason, from the act of their essential
agreeableness with the constitution of human nature: while, on the contrary,
positive or revealed laws are not founded upon the general constitution of human
nature but only upon the will of God: though in other respects such law is established
upon very good reason and procures the advantage of those to whom it is silent.2

During the 19th century natural law theory lost influence as utilitarianism and Bentham’s,
positivism, materialism, and the historical school of jurisprudence became dominant. In the
20th century, however, natural law theory has received new attention, partly in reaction to the
rise of totalitarianism and an increased interest in human rights throughout the world. With
this contemporary interest in mind, let's now turn to our attention to the natural law theory as
understood by the tradition of Classical Realism.

In its simplest definition, natural law is that "unwritten law" that is more or less the same for
everyone everywhere. To be more exact, natural law is the concept of a body of moral
principles that is common to all humankind and, as generally posited, is recognizable by
human reason alone. Natural law is therefore distinguished from -- and provides a standard
for -- positive law, the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of
reason. In fact, it is the law discovered by human reason. Our normal and natural grasp of the
natural law is affected by reason, that is, by the thinking mind, and in this service reason is

1
Cicero, Republic III.xxii.33, in DE RE PUBLICA; DE LEGIBUS 211 (C.W. Keyes, trans., Harvard University
Press, Cambridge, Mass., 1928)
2
Quoted in L.B. CURZON, JURISPRUDENCE 37 (London: Cavendish Publishing Ltd, 2nd Edition, 1995)

5
sometimes called "conscience." We, in all our human acts, inevitably see them in their
relation to the natural law, and we mentally pronounce upon their agreement or disagreement
with the natural law. Such a pronouncement may be called a "judgment of conscience." The
"norm" of morality is the natural law as applied by conscience. Lastly, we can say that the
natural law is the disposition of things as known by our human reason and to which we must
conform ourselves if we are to realize our proper end or "good" as human beings.

To sum it up, then, we can say that the natural law:

 is not made by human beings;

 is based on the structure of reality itself;

 is the same for all human beings and at all times;

 is an unchanging rule or pattern which is there for human beings to discover;

 is a means by which human beings can rationally guide themselves to their good.

CHAPTER – 2

THE POSITIVE SCHOOL OF LAW

Standing in stiff opposition to natural law school of jurisprudence is legal positivism. Legal
positivism stands for almost everything that natural law school advocates. Legal positivism is
a theory of law that emphasizes the ‘is’ as against the ‘ought.’ What this means is that it seeks
to adopt the scientific approach to the study of law by focusing only on phenomena that can
be experimented, observed, or demonstrated. Thus, it is descriptive, and not prescriptive.

One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch
supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for
democracy, and strongly atheist. His student, John Austin, popularized Bentham’s views
about law and jurisprudence. Austin was the first chair of law at the new University of
London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands,
backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".
Contemporary legal positivists have long abandoned this view, and have criticized its
oversimplification, H.L.A. Hart particularly.

6
John Austin has been paid credit as the founder father of the English Analytical School of
Jurisprudence until in the year 1945 when the work of Jeremy Bentham was got published by
Prof Everett of University College of London.

The principal objective of positive (or analytic) jurisprudence has traditionally been to
provide an account of what distinguishes law as a system of norms from other systems of
norms, such as ethical norms. As John Austin describes, conceptual jurisprudence seeks “the
essence or nature which is common to all laws that are properly so called”. Accordingly, the
task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for
the existence of law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal
system, there is some confusion as to both the value and character of conceptual analysis in
philosophy of law. As Brian Leiter points out, philosophy of law is one of the few
philosophical disciplines that take conceptual analysis as its principal concern; most other
areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the
sciences. To clarify the role of conceptual analysis in law, Brian Bix distinguishes a number
of different purposes that can be served by conceptual claims: (1) to track linguistic usage;
(2) to stipulate meanings; (3) to explain what is important or essential about a class of
objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual
analysis in law to be primarily concerned with (3) and (4).3

In any event, conceptual analysis of law remains an important, if controversial, project in

contemporary legal theory. Conceptual theories of law have traditionally been characterized
in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have
traditionally been divided into two main categories: those like natural law legal theory that
affirm there is a conceptual relation between law and morality and those like legal positivism
that deny such a relation.4

CHAPTER – 3

3
Bix, Brian H. (2000), “On the Dividing Line Between Natural Law Theory and Legal Positivism,”NOTRE
DAME LAW REVIEW, vol. 75, pp. 1613–1624]
4
. Cliffe Leslie, T. E. (1864), “Modern Phases of Jurisprudence in England,” WESTMINSTER REVIEW, vol. 26,
pp. 261–76 [UK ed.; US ed.: vol. 162, pp. 125–132

7
INDIA’S POSITION AT GLOBAL LEVEL

What makes the law legitimate? What is a legitimate source of law? What binds people to
obey the law? Is there an essential connection between the law and morality? Can the content
of a law disqualify it from being considered a legitimate law, which must be obeyed? This
debate has been taken up by two major groups of legal theorists: Natural Law theorists and
Legal Positivists. Natural Law theorists such as Plato, Aristotle, and St. Thomas Aquinas
argue that a law is only just and legitimate if it promotes the common good. For Legal
Positivists like John Austin, H.L.A Hart, and Thomas Hobbes, a law is legitimate if it has
been enacted through the proper channels by someone with the power to do so regardless of
the content of that law. While each theorist presents his own explanation, each seeks to
answer these crucial questions about law and society.

Legitimate laws must come from legitimate sources. Legal Positivists argue that for the
source of law to be legitimate, it must come from a source of power. For Austin, the source of
law must be the only person who the subjects are in the habit of obeying. They must also be
willing to back their sanctions and laws with credible force. Natural Law theorists posit that
the source of law is divine or can be discovered and formed according to what is just and will
promote the common good. Aquinas takes the stance that the source of divine law is God.
Human laws are derived from these divine laws and practical reason.

Aristotle and Plato agree that concepts of law and justice are derived from nature and reason,
which govern actions to move toward the higher good. Aquinas makes the distinction that the
person or persons who makes the law must be in care of the community. This is similar to
Hobbes in that he believes the duty of those who make law to be to care for and protect the
society that they govern. Hobbes finds a middle path on the topic of the source of law. He
contends that the individual subordinates himself to the sovereign who can create and enforce
laws according to a social contract with the people.5 Hart differs from Austin in that he
believes that the sovereign cannot simply make laws as he or she pleases. The source of law
is the sovereign who produces laws through following primary and secondary rules.

5
Hobbes, Thomas. "LEVIATHAN." THE GREAT LEGAL PHILOSOPHERS. Ed. Clarance Morris. Philadelphia,
Pennsylvania: University of Pennsylvania Press, 1971. 109-133. Print.

8
Natural Law theorist St. Thomas Aquinas argues that human law is legitimate only if it is in
line with divine law and promotes universal happiness. All law is fashioned to the common
welfare of men. He posits that neglecting God’s law or the universal happiness in the
formation of a law makes it unjust. Accordingly, Aquinas advances that an unjust law is not a
legitimate law at all and does not have to be obeyed. 6 In stark contrast, Legal Positivist John
Austin contends that legitimate law is nothing more than commands from a sovereign to the
people who must obey him backed by credible threats and sanctions. The law’s legitimacy is
completely independent of the morality of its content and must always be obeyed. It draws its
validity from the power of the sovereign who is the only ruler that subjects are in the habit of
obeying. He argues that the law as it exists is separate from what it ought to be. Natural Law
Theorists heckle this notion because it shows no concern for morality or protection of the
people. Austin maintains the division between morality and the law and concludes that the
content of the law is legitimate through the power that created it. 7

On the more moderate end of the Legal Positivist tradition is a philosopher who was
influenced by both Natural and Positivist jurisprudence. Thomas Hobbes argues that the law
receives its legitimacy from a social contract between the people who are governed and their
sovereign. He likens government to a biblical sea monster. Like an anatomical head, the
sovereign rules over the body of subjects whose power is beneath it. Like the monster, the
government is all-powerful. Yet unlike Austin, he believes there to be limits to political
obligation. He argues that when a citizen’s life is in danger, they have the right to disobey the
government or a law. Challenging Austin’s idea that the law is legitimate because of the
credible force of the sovereign is H.L.A. Hart.

He agrees with Hobbes’ idea that laws are social contracts between the government and the
people. He contends that legitimate law is not just commands backed by real force and
sanctions, but because it has been enacted through primary and secondary rules. If a law has
been dually enacted where primary rules regulate conduct and secondary rules allow primary
rules to be created or altered then it is legitimate and must be obeyed. Additionally, Hart sees
that Austin’s Command Theory presents a problem in the varying types of laws that he
believes need to be in place, “notably those conferring legal powers to adjudicate or legislate

6
Aquinas, Thomas, St.. "Summa Theologica." The Great Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 57-79. Print.

7
Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers. Ed. Clarance Morris. Philadelphia,
Pennsylvania: University of Pennsylvania Press, 1971. 335-363. Print.

9
(public powers) or to create or vary legal relations (private powers) which cannot, without
absurdity, be construed as orders backed by threats.”8

Similar to the concept of legitimate law is the concept of what is just. Natural Law theorists
Plato and Aristotle advance the idea justice is a virtue. It is an inseparable part of oneself and
is a driving force toward the common good. Those who subscribe to the Natural Law
tradition claim that what is good and just is based on an objective standard of what is right
and wrong. Plato argues that there is an order to the universe which He posits that the just
man can do nothing to harm anyone else and does his part as an individual in society to help
it function. Aristotle posits that each man should get what is due to him and that every action
has a motive and it is to move toward the higher good. He also posits that justice is more than
just being honest and following the obligations provided by the law. This implies that the law
is open to interpretation and criticism if the content obligates one to go against the goal of a
peaceful coexistence. Aristotle agrees with Plato in giving each man his right is just as long
as it promotes the good, or “distributive justice”.9

They argue that the law is out in the world waiting to be discovered. The law reveals itself
when people live virtuously to help achieve the common good. For example, “Suppose that a
friend when in his right mind has deposited arms with me and he asks for them when he is
not in his right mind, ought I to give them back to him? No one would say that I ought or that
I should be right in doing so, any more than they would say that I ought always to speak the
truth to one who is in his condition.” 10 Their theoretical perspectives can be attributed to their
philosophical time period as opposed to the more practical thinkers of later times.

Once legitimate sources have created legitimate and just laws, there must be a reason as to
why people are compelled to follow or obey them. Natural Law subscribers believe that the
ultimate end is the greater good and law is ordered to serve the wellbeing of man. Good laws
should be followed because they follow reason and are inherently valuable and are a means to
the ultimate human end or telos. Additionally, they argue that man was given reason, which

8
HART, H.L.A, 'CONCEPT OF LAW’, Oxford, London: Oxford University Press, 1961. 76-107. Print.
9
ARISTOTLE, "NICOMACHEAN ETHICS- THE POLITICS.", Pennsylvania: University of Pennsylvania Press, 1971.
10
PLATO, THE DIALOGUES OF PLATO translated into English with Analyses and Introductions by B. Jowett,
M.A. in Five Volumes. 3rd edition revised and corrected (Oxford University Press, 1892). Chapter: BOOK I

10
distinguishes him from beasts. It is this reason, which allows him to control his actions and
impulses to act justly. Acting justly and virtuously leads to the good life and the ultimate
happiness.

Opposite to these thinkers is Austin. He believes that people are obedient to the letter of the
law because if they do not then they will be punished with force. Fear becomes a motivator
for obedience for both Austin and Hobbes. Hobbes contends that the reasonable person
would give up certain rights and willingly submit to the authority of a sovereign to maintain
protection and peace in society. They have willingly engaged in a social contract, which
binds them to obey if the sovereign’s protective obligations are met. They are motivated to
obey because of the fear of life outside of the safety of the sovereignty, in the world of
unpredictable, reasonless war. Hart sides with Hobbes on the idea that people are obedient to
the law because they are involved in a social contract. Hart sees that the subjects agree to
follow and be obedient to the laws if they are made and changed according to the agreed
upon primary and secondary rules of that government or society.

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 CONCLUSION

The impact of the rise of positivism on the doctrine of natural law was great. Hitherto, natural
law was accepted or almost accepted as given, as self-evident, demonstrable by reason. But
the trenchant criticism of positivism has made it like a mere pretentious name for moral rules.
According to David Hume, justification for such rules is to be found in certain aims of life
determined not by reason but by human desires or passions. In other words, moral values are
a response to the existentialist needs of humanity the same way as necessity is the mother of
invention. Put differently, passion or emotion is the basis of morality, not reason.

Despite such impact, there is no escaping the fact that there are instances where positive law
and natural law (or morals/religion) all converge because they all embody norms comprising
obligations and rights, for example, their common prohibition of murder, rape, etc. Also, in
imposing certain standards of behaviour, positive law and natural law reinforce and
supplement each other. For example, the moral duty not to harm another manifests as the
Law of Tort; the duty to honour promises is expressed in the Law of Contract; the duty not to
create unjustified hazards for another can be found in positive law providing for rules on
speed limit, traffic sign, roadworthiness, etc.

Notwithstanding the convergence between positive law and natural law, there are so many
instances in which their streams do not flow together. Legal positivism revolves around the
belief, assumption or dogma that the question of what is the law is separate from, and must be
separated from, the question of law should be. Positivism distances itself from morality
because morality, which advertises itself to be universal, certain and objective, is reality
marked or marred by relativism, uncertainty and subjectivism.

Each philosopher sought to answer what makes law or juice legitimate. For some such as the
Natural Law theorists, it comes a drive toward the greater good, reason and the divine
through discovery or someone in the care of the community; and is maintained through the
same means, which discovered and created it. For others such as Legal positivists it comes
from power or a social contract, which binds subjects with fear, force, or reason. The two
groups intersect and diverge at varying points, but all ultimately seek to understand a part of
what is so central to the human condition, the law.

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 BIBLIOGRAPHY

Books:

 G. C. MATHUR, VIDYA DHAR MAHAJAN, ‘JURISPRUDENCE AND LEGAL THEORY’

2006 Eastern Book Company
 DR. N.V.PARANJAPE , ’STUDIES IN JURISPRUDENCE AND LEGAL THEORY’, 13 TH ED.
2013 Central Law Agency.
 COSGROVE, RICHARD A, ‘SCHOLARS OF THE LAW: ENGLISH JURISPRUDENCE FROM
BLACKSTONE TO HART’, ( 1996 New York: New York University Press).

 CICERO, ‘DE RE PUBLICA; DE LEGIBUS’ (C.W. Keyes, trans., Harvard University

Press, Cambridge, Mass., 1928)

 L.B. CURZON, ‘JURISPRUDENCE’ (London: Cavendish Publishing Ltd, 2nd Edition,

1995)
 HART, H.L.A, 'CONCEPT OF LAW’, Oxford, London: Oxford University Press, 1961.

 AUSTIN, JOHN. "LECTURES ON JURISPRUDENCE."  Clarance Morris. Philadelphia,

Pennsylvania: University of Pennsylvania Press, 1971.

Articles:

 Bix, Brian H. (2000), “On the Dividing Line Between Natural Law Theory and Legal
Positivism,” NOTRE DAME LAW REVIEW, vol. 75, pp. 1613–1624.

 Duxbury, Neil (2005), “English Jurisprudence Between Austin and Hart, ”VIRGINIA
LAW REVIEW, vol. 91, pp. 1–91.
 Cliffe Leslie, T. E. (1864), “Modern Phases of Jurisprudence in England,” WESTMINSTER
REVIEW, vol. 26,

13