Jurisprudence, ak jain, paranjape

The idea of justice by Amartya sen

Theosprudence, demosprudence, jusrisprudence

Things to read – greek philosophies, periods of renaissance, enlightenment, western and

indian enlightenment. History of law. justice complete. Natural, positive, divine law theory,
their relationship and meaning. Read jurists and their idea of law and jurisprudence.
Immanuel kant. Next class – definition and scope of jurisprudence, hw – make a chart, divide
into 4 portions – Holland, salmond, grey, puchta.

Important to read- Immanuel kant.

Leaving the material world and attaining nirvana. Entering into the spiritual world. .

Holland idea of jurisdiction - Holland is also supporter of analytical School of positivism.

law is general rule of external human action enforced by sovereign political authority. All
other rules for the guidance of human action enforced by sovereign political authority. All
other rules for the guidance of human action are laws merely by analogy; propositions which
are not rules for human action are laws by metaphor only. Holland defined jurisprudence as "
the formal science of positive law. " According to Professor Holland, jurisprudence is a
formal or analytical science, as opposed to material one and deals rather with the various
relations which are regulated by legal rules than with the rules themselves which regulate
those relations.

Puchta – Georg Friedrich Puchta was a German jurist and was the most popular pupil of
Savigny. He firmly believed the law to be the product of the general consciousness of people
and the manifestation of their spirits. Puchta believed that law made without keeping in mind
previous considerations of the past, the historic culture and old customs; law won’t evolve
this way. This would rather have created an unambiguous situation than solving any problem.
After a certain evolution, the ideas of Puchta were accepted to be more logical and improved.
He began from the origin of the human race and stated that men always lived in unity. This
unity might not just be physical but also spiritual, focusing on the general will of people.
According to Puchta, self-interest created conflicts. He preached to keep general will over
individual will for maintenance of peace and for actual evolution law. Further, the role of the
state was spoken about which is very significant. State emphasized the general will and
interest of people by declining the sphere of individual interest and ultimately made a
workable system. The main concept of Puchta’s ideas was, “Neither the people nor the State
alone can make and formulate laws.”

Contribution of Puchta

 He gave twofold aspects of human will and the origin of the State.
 Despite the fact that Georg Friedrich Puchta was Savigny’s pupil but Puchta improved
the views of Savigny and gave it a more logical interpretation.

Natural law theory – idea of metaphysical was nature. since its nature that has created
everything. Also believed in reason and rationality. It’s the nature that is providing us the
thinking process and rationality

Divine - thinking process and rationality is provided by god.

Thomas Hobbes----------------------------John Locke--------------------------------Rousseau

Extreme conservative---------------------------------------------------------radical liberalist

Conservative people believe that it’s state that the authority. They believe in supremacy of
state. Nothing can go beyond the state. State is an absolute necessity. Leading to an
authoritarian and totalitarian state.

Liberalist – people who are above and state is below.

All of the three thinkers’ idea differs on the following points – idea of pre state society and
the structure of state/government.

Hobbes idea of pre-state society and structure of govt. – hen there was no state, man was a
barbaric animal. Might was right. Powerful dominates. Point was savage survival. All of
these people in the pre state society came into contract with each other stating that we are
going to let go of all our powers into one specific entity that we are going to create known as
state. People have completely foregone all of their rights. Now if there is any dispute among
these people, only the state can resolve these disputes. This is known as the single contract
theory of Thomas Hobbes. It’s the state which would have the major stake holding in all of
our lives.

John Locke – talks about a double contract theory – not exactly liberalist and, even john
Locke is a conservative but a soft. He says that people in pre state society – lack of dispute
resolution that is why state is being created. People into a contract with each other creating
the state. The second contract was b/w these people and the state, people said that we are
going only give the state the power of dispute resolution. Emergence of minimalistic state.
Which only comes into power for resolution of disputes. The state was created through
consensus building. According to Locke, the main purpose of government is to protect those
natural rights that the individual cannot effectively protect in a state of nature.

Laissez faire

Jean jack Rousseau’s idea – man was free animal before sate, he could do anything he wants,
there was liberty, no taxes being tied in the structure and institution and with the presence of
state the liberty was washed off. State that immerses out of the general will. Therefore that
state is always beneath the general will. To uphold the general will – idea of the Rousseau
state. This general will is going to determine kinds of laws, punishment. There is only one
need of the state which is to uphold the general will. It is people that create the general by
way of sacrifice, compromise and generosity of respective people which creates a general
will. The collection of which will decide the laws and rules to govern themselves. He is father
of democracy. Switzerland is a modal Rousseau government. He talks about the social
contract theory.

Hw – watch – the dark knight.

Voltaire

Kant – Rejects utilitarianism. He thinks that the individual person, all human beings have a
certain dignity that commands our respect the reason is individual is sacred or bearer of rights
according to Kant doesn’t stem from the idea that we own ourselves but inst3ead form the
idea that we are all rational beings, which simply means that we are beings capable of reason,
we also are autonomous beings which is to say that we are capable of acting and choosing
freely. This capacity isn’t the only one. We also have capacity for pain and pleasure, for
suffering and satisfaction. He admits that utilitarian were half right that we like pleasure. But
he does deny what Bentham says that pain and pleasure are our sovereign masters. He thinks
its our rational capacity which sets apart above mere animals, it makes us something more
than just physical creature with appetites. We think freedom consist of doing what we wants
or the absence of obstacles. But Kant believes when we like animals seek after pleasure or
satisfaction of distractions or of the avoidance of pain, when we do that we aren’t really
acting freely, but acting as the slaves of those appetites and hungry, freedom is opposite of
necessary. Kantian insight is obeying to your desires to being slaves of the same. Answer to
question of what is acting freely in terms of the Kantian ideology – to act freely is to act
autonomously – to act acc to a law I give myself no acc to physical laws of nature or cause
and effect. What is the opposite of autonomy acc to Kant is heteronomy. When I act
heteronomous, I act to acc to desires I haven’t chosen myself. Point – nature is governed by
law (like laws of cause and effect). In order to act freely is not to choose the best means to a
given end but it’s to choose the end itself for its own sake. Insofar as we act on inclination or
pursue pleasure we fact as means to the realisation of end given outside us. When we act
autonomously we do something for its own sake as an end in itself. We become as ends in
ourselves. This capacity act freely is what gives human their dignity.

Rene decartes - Logic and reasoning is something he acquires and something which is given.
Everthying emerging out of logic and rationality. Mind at the time of birth is tabular rasa –
clean slate.

Two methods of acquiring – apriori (from the former) and aprosteri

Aprostriei (rene decartes follows) - nothing is existing from inception point of birth. They are
acquired with time passes.

Kant states – you cannot talk about natural law theory w/o talking about the metaphysical.
You cannot think about all the rationality, morality, logic is an acquired trait. There is some
metaphysical working in these epistemological points. Instead of finding a metaphysical
outside, you should finding it inside. Which he calls inner morality. Inner morality is existing
from the time when human comes into existence. Inner morality is above conscious. Even a
foetus has sense of inner morality. This inner morality leads to the existence of the
epistemological points. The fundamental principle of morality — the CI — is none other than
the law of an autonomous will

Synthetic a priori – ontological structure -

Utilitarianism
Bentham (conservative) – you could judge that the act is morally right or wrong by the
amount of net pleasure or pain it produces. Felicific calculus or the hedonistic calculus, the
amount of pleasure derived from an act could be measured by variables like intensity,
duration, certainty, propinquity, purity, fecundity, extent. Bentham thought the policy could
legislate acc to how much societal pleasure would be produced. He talks greater good.
Consensus building on what would be the greatest pleasure. The state is also arising from this
collective pleasure of society. The law is also arising from the same theory of max pleasure
max number. Quantitative pleasure. Stricter harsher long levels of Punishment is not good.
Should avoid. acc to bentham, punishments are expensive. If you are going to build more
prisons and bring more guards. The stricter ther punishment, more the money and resources
expended. Idea or theory of panopticon. Let’s address the crime with minimalistic cost.
Reform people so that crime comes to a low as killing of prisoner is expensive. State shuld be
of such a nature that people are in fear of the state, that the state is always keeping an eye on
the people. His idea leads to strict surveillance state.
John Stuart Mill – All action is for the sake of some end, and rules of action, it seems natural
to suppose, must take their whole character and colour from the end to which they are
subservient. He says that actions are right in proportion as they tend to promote happiness.
Wrong as they tend to promote opposite of happiness. Some pleasures are intrinsically more
valuable than others and that once we are aware of certain higher pleasures, we wont be
happy to leave them uncultivated. It is better to be human being dissatisfied than a pig
satisfied. Better to be Socrates dissatisfied than a fool satisfied and if the fool or the pig is of
a different opinion it is because they only their own side of question. Pleasure would be
higher pleasure “if it would be chosen over another pleasure even if it was accompanies by
discomfort” and “if it would not be traded with a higher quantity of the other pleasure”. “It is
an unquestionable fact that those who are equally acquainted with and equally capable of
appreciating and enjoying both do give the most marked preference to the manner of
existence which employs their higher faculties. Few human creatures would consent to be
changes into any of the lower animals, for a promise of the fullest allowance of a beast’s
pleasures; no intelligent human being would consent to be a fool, no instructed person would
be an ignoramus, no person of feeling and conscience would be selfish and base, even though
they should be persuaded that the fool, the dunce, or the rascal is better satisfies with his lot
than they are with theirs. Some people will give up life of happiness willingly, but they do
this for a greater end, the happiness of other or god.
So utilitarianism is the moral standard of judging the happiness of all people and not just each
single person. Mill argues that people do desire things like virtue as well as happiness but the
virtue is part of the abstact whole of happiness. Acc to him first principle of utility is the
protection of the rights of all. Qualitative pleasure.
Indian idea of hedonism under carvaka
Read novel – chitralekha
Next time – analytical positivism – Austin.
The term positive here, something which is coming from a structure here, the state. Morality
is also coming out of this structure, known as positive morality. Here, they are not
considering morals, inner morality and god. They only focus on bare wordings of law, what is
present before us. They are not concerned with the history and ideologies of theorists, nor are
they concerned with morality of jurists or judges or people. “Law is the product of State”, acc
to Analytical positivists. Strict analyst would say there is no emotion in law. Not
Wayne Morrison has written on analytical school of jurisprudence, Austin’s theory.
Analytical positivism is an extentison of the social contract theory and idea of utilitarianism.
Analytical – when you are going to look something through objective eyes, eyes which are
not clouded by theology, divinity. What law is and not what law ought to be. Grudge
informer case.
Positivism – comes from the Latin term ‘posit’ which means a ‘structure’. Everything exists
in structures. Structure could be a family unit or marriage etc. There is some formal protocols
and compartmentalisation have been done. The rules and regulations are concretised and
fixed to which the people are bound.
In combination- structures from the lenses of science and rationality.
Austin – Law is command by sovereign backed by sanctions. Acc. To him public
international law is a misnomer, it’s not a real law, but a positive morality (morality which
coming out of a structure) but nothing more than that.
Sovereign – the supreme authority in any given structure. This is authority can be
authoritative, the monarch or the constitution itself.
Command – Some sort authoritative action from the state or the sovereign. Which cannot be
ignored by the subjects of the state.
Adm Jabalpur v. shivakant shulka – black law. read justice HR Khanna’s dissent.