SPECIAL ASSIGNMENT OF CRITICAL THINKING ESSAYS (SACE)

 AUGUST-DECEMBER, 2021

SUBJECT: JURISPRUDENCE I

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

Date of Submission: 07/12/2021

ANSWER I

 INTRODUCTION

Professor Lon Fuller and Professor H.L.A Hart

are two of greatest philosophers of all time. They have done some ground-breaking works in the

1
field of Jurisprudence. The present assignment revolves around understanding the
philosophies of Prof. H.L.A Hart and Prof. Lon Fuller who are the exponents of Analytical
law of school and the Natural law school respectively. Law and morality are principles that can
be interrelated and sometimes interdependent but attempting to define them collectively and in
isolation becomes challenging. Laws are set of rules and regulations, which regulates our
conducts. The laws which are backed by the state, also invites sanction, if anyone disobeys those
laws. Human conduct can be classified as either good or bad in moral context. These moral laws
are responsibilities and obligations that a person has to abide by. However, a person cannot be
made legally accountable for breach of these moral laws. Human conduct is influenced by both
law and morality. We've been puzzled by the relationship that arises between legality and
morality on several occasions. Although it is undeniable that legislation contains some
element of morality, likewise it is significant that many activities may not be criminal under the
law but are morally wrong. As a result, we are constantly engaged by concerns such as whether
morals should be regulated by legislation, whether laws shall be obligatory if they did not have
ethical beliefs, and whether disobedience of atrocious laws is morally permissible. This
assignment also surrounds the debate on law and morality which took place between Prof. H L A
Hart and Prof. Lon Fuller.

 A COMPARISION BETWEEN NATURAL LAW PHILOSOPHY AND

ANALYTICAL POSITIVISM.
 TENETS OF NATURAL LAW THEORY

The Natural law school was the very first school of jurisprudence. The universality of natural law
philosophy is a fundamental principal of this school. It is regarded as heavenly law, immutable
law, and law of the nature. The result of "reason" is natural law. It has passed through several
eras and is characterized in various methods by men. The key concept of this philosophy is
morality. Morality is seen as the ultimate law against which the legitimacy of human made laws
can be judged. Natural law is established on reasoning and moral conscience, and it determines
what should be done and what must not be done. It is the factor that separates the good from the
evil. It says that there are some principles which are irrefutable and immutable, which are

2
uniform and are applicable everywhere, these are the natural law principles. The development of
Natural law Philosophy can be classified into

▪ Ancient Period;
▪ Medieval Period;
▪ Renaissance Period;
▪ Modern period

It is believed that the Greek philosophers laid down the foundation of these principle by
including ethics and morality in their laws. Later comes the stoic philosophers, they believed
that whatever happens, happens for good only. They believed that whatever there is in the nature,
is good for man.

This philosophy of stoicism was further taken up by the Romans, and they included these
principles in their legal system. This principle was developed by them in the form of Jus
Natural, Jus Civic and Jus Gentium.

In India, before the development of legal system, people used to follow the Dharma codes.
Which are enshrined in the Vedic texts. The Dharma (the code of Righteousness), defines the
ethical and moral duties of a man and how they should conduct their behavior.

In the 19th Century the Natural Law school had a decline. The main reason behind the setback
was because of the constantly changing society. The industrialization, the development of
science and technology, the social outlook and the rationalism of people was the reason behind
the shift of people’s ideology. Various philosophers of the Analytical Law School criticized the
Natural law school based on the reasoning that it does not have legal backing.

In the 20th Century, the world witnessed certain catastrophic events like World Wars, which led
their ideology towards a value-driven philosophy and hence, there was a revival of Natural law
of school.

In present-day the principles of ethics and morality can be seen in the legal framework of India.
Different statutes encircle the notions of these concepts. These notions still reflect in the laws
and the judgements. In some cases, there is a conflict between laws and morality; sometimes the
law triumphs over morality, while in other instances morality triumphs over law.

3
Exponents of Analytical law of Jurisprudence; The renowned representatives of this school are
John M Finnis, Lon Fuller, Thomas Hobbes, John Locke etc.

 TENETS OF ANALYTICAL LAW OF SCHOOL

At the start of the nineteenth century, the positivist ideology arose. The analytical philosophy
takes a positivist stance. The main significant feature of the law, according to the school's
philosopher, is its relationship with the state. The law is seen as a state-issued command. As a
result, this philosophy is sometimes also referred to as the imperative school. In the 19th century,
the analytical school grew popular. It claims that morals and ethics are not objective; law must
be objective; if morals are included in the concept of law, law will no longer be objective. This
school brought precision and clarity in legal reasoning. Precise and scientific language and terms
was presented to us. External factors that are not covered by the legislation were excluded. The
essential concept of the analytical school is to engage with law as it already exists. As a result,
this school's philosophers believe that there is a clear distinction between what law "is" and what
law “ought to be”1.

 Exponents of Analytical law of Jurisprudence ; The renowned representatives of this

school are Bentham, Austin, Salmond, Grey, Kelsen, Hart, Hoffield and Holland.

With the exception of his fellow jurists, Hart did not consider morals to be an inherent
component of law, although he did consider that morals had an impact on law, which he referred
to as “the minimum content of natural law.” 'The Concept of Law,' 'The Causation of Law,' and
'Law Liberty and Morality' are among his most well-known writings. In his work, Hart
acknowledges that law is an obligation, that it renders some human actions non-optional or non-
obligatory. However, he disagrees and criticizes Austin's idea that law is just a command of
sovereign.

 PROF. H L A HART’S VIEWS ON LAW AND MORALITY

1
Manmeet Singh, Analytical Legal Positivism, LEGALSERVICESINDIA.COM, (Nov. 26, 2021, 12:03 pm),
http://www.legalservicesindia.com/article/2228/Analytical-Legal-Positivism.html.

4
Prof. HLA Hart was a critical moral philosopher and a proponent of legal positivism. As a legal
positivist, he believes that laws do not have to meet specific standards of morality. Although he
recognizes the strong correlation that lies among law and morality, but  he does not agree that
they are mutually dependent. He claims that the presence of law can’t be measured in terms of its
pros or cons. Regardless of our views, a law exists.

The sustainability of a law is not contingent on whether or not the laws adhere to a set of
minimal ethical requirements. It is not necessary for laws to adhere to morals in any way.

Just on basis of moral lacking, laws do not just dissolve. Like the fellow jurists of
analytical positivism, Hart does not disagree that morals and ethics has had a significant impact
on the formation of law. Hart recognizes that law and morality will inevitably meet at some time.
As a result, it's important to differentiate among what law is and what law ought to be. In Hart’s
opinion, interpretation should demonstrate the fairness of the laws by emphasizing on what it
is rather than on what one expects it. According to Hart, the core of law is made up of two types
of rules: primary and secondary rules2.

Primary laws are duty-imposing laws with legal backing that places  specific responsibilities
on individuals. Secondary laws are the power-granting rules that specify how primary laws
should be recognition, change, and adjudication. Secondary laws are laws that are based on
primary laws3.

Hart discusses the required intersection of law and morals in order to solve the challenges of the
penumbra. In Hart’s opinion, legal system can only exist, if rule of recognition is enforced
effectively. And for the existence of a legal system, two requisites are needed. First, the rules of
behavior which is to be obeyed generally and secondly, the rules of change and adjudication
which should be effectively accepted.

 PROF. LON FULLER’S VIEWS ON LAW AND MORALITY

2
Sheela Rai, Hart’s concept of law & the Indian constitution, The Practical Lawyer, (2002) 2 SCC (Jour) .
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=783
3
DR. V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY, pg. 66-69 (5th ed. 1987).

5
Professor Fuller describes law as a method of attaining societal stability through the application
of laws to human conduct. It is the process of putting rules in place to guide human behavior. As
per Fuller, our legal methodologies, are based on judicial norms that have a moral component.
The methods enshrined in a legal structure are morally significant in assessing whether or not a
set of laws qualifies as a legal system. He argues that a rule must fulfill a moral functioning
criterion before it can be termed a law in the genuine sense. A rule or combination of regulations
that does not adhere to this functionality is not considered law4. 
Fuller opposes the positivist view of law. He wants legislators to recognize that there are
alternative options for achieving society's goals than depending just on the law. He argues that if
legislators recognize this, they will be able to effectively employ law as a tool to manage our
society. According to Fuller, not all commands with the ability to impose adherence can be
recognized as law.

 Fuller establishes eight parameters and states that a notion must be evaluated against
these parameters in order to be accepted as law.

1. The notion should be stated in such a way that it could be implemented generally.
2. Laws must be proclaimed, that is, laws must be conveyed to the individuals who are bound by
them.
3. Newly created legal concepts must always be used prospectively. Only in exceptional
instances, based on external factors, might law be applied retrospectively.
4. The law needs to be clear.
5. There should be no contradicting commands in the law.
6. Laws must not inflict unattainable standards of conduct on individuals.
7. As per Fuller, adhering by formerly proclaimed principles, i.e., stare decisis, is beneficial
since persons are protected from the modifications that would otherwise occur if laws were
frequently changed.

4
Stephanie Patron, The Inner morality of law- An analysis of Lon L. Fuller’s Theory, GLASSGOW UNIVERSITY
LAW SOCIETY LAW REVIEW, (Nov. 26, 2021, 11:43 am), http://www.gulawreview.org/entries/legal-theory/the-
%E2%80%98innermorality-of-law%E2%80%99-an-analysis-of-lon-l-fuller%E2%80%99s-theor

6
8. As per Fuller, in order for a law to achieve its goals, it must meet the standards of
"congruence," which he defines as conformance with specified principles and individual's
conduct.

 THE HART-FULLER DEBATE SURROUNDING LAW AND MORALITY

 BACKGROUND OF THE DEBATE

The Hart-Fuller debate highlights the conflicting outlook between analytical positivist and

natural law, specifically in light of Nazi policies. After witnessing the violence committed by the
Nazi's on the Jewish people under the Nazi Rules, Gustav Redbrick, a Jew and a strong
proponent in the analytical doctrine, transformed his thoughts and became a firm advocate of
principle, encouraging everybody to follow the principle of laws and ethics. This provoked Hart
to start a conversation on law and morality. In April 1957, he presented the lecture “Positivism
on the Separation of Law and Morals,” which was printed in the Harvard Law Review in 19585.

Fuller responded in his work “Positivism and Fidelity to Law: A Reply to Professor
Hart,” similarly it was released in the “Harvard Law Review in 1958”. This was the
commencement of the infamous discussion that occurred between them.   As a response to
Fuller's work, Hart wrote “The Concept of Law” in 1961. In 1964, Fuller responded by writing
“The Morality of Law.” In response to Hart's assessment of Fuller's work in the “Harvard Law
Review in 1965”, Fuller responded by writing the II (Modified) version of his work “The
Morality of Law” in 1969, which included a chapter entirely responding to his critics6.

The present clash of law and morals could be further comprehended by looking at a case called
as the Grudge Informer case. Prof Hart and Fuller both spoke about the matter in detail.

 Facts of the case

 A German woman made accusation on her spouse to the Gestapo for opposing Hitler's warfare
strategy. The man was found guilty and was given death penalty, however his conviction was

5
HLA HART, POSITIVISM AND THE SEPARATION OF LAW AND MORALS, (Harvard Law Review, 1958).
6
Tommaso Pavone, A critical adjudication of the Fuller-Hart debate, P1, Oct 12, 2014.
https://scholar.princeton.edu/sites/default/files/tpavone/files/fuller-hart_debate_critical_review.pdf

7
eventually commuted to military service on the battlefield. The man survived the battle and filed
law suits against his spouse thereafter.   In her justification, the woman claimed that she sued
the man because he had made a violation under a “Nazi statute of 1934”. The “Enabling Act of
July 12, 1934,” enacted by the Legislature, established the underlying premise of Nazi legislation
by amending the German Constitution to allow Hitler to make decrees that were contradictory
with it. It stated that Hitler's legislation and desire were the same7.

 Judgement of the court

The German courts were struck with a challenging dilemma. On one side, there was a
fundamental obligation to follow the rules. But on the contrary, people had an ethical
responsibility to do what they believed was just and acceptable. Another problem was the issue
of restoring faith in the rule of law and justice. They concluded that declaring every Nazi
regime's rules, as well as people' activities in accordance with those rules, unlawful will lead
to complete social instability. Yet, they believed that certain Nazi system's regulations were so
revolting to basic values that it was necessary to disapprove activities conducted in accordance
with those laws in order to persuade the public that the current administration did not support
such corrupted laws. As a result, the Judge found the woman accountable for acting in a way that
was opposed to all reasonable people' morality and ethics, and noted that such acts were so
revolting.

 HART’S VIEW ON THE JUDGEMENT

In view of the circumstances of the matter, Hart contended that the Court 's ruling was incorrect,
despite how heinous and horrific the Nazi policies were, they were legitimate as it was enacted in
conformity with the Reichstag's Enabling Act. Hart's rule of recognition was fulfilled.  In Hart's
opinion, the judges had two possibilities to maintain the dignity of the court rulings: First,
free the woman from liabilities since the law secured her, or pass retrospective laws overturning
the law within which she asserted protection and proclaiming the actions of offenders of such
acts as criminal. Although Hart was not a supporter of criminal laws being applied
retrospectively, he argued that Hitler's rule may have been regarded an exceptional situation for
retrospective implementation of statutes if the judges were concerned that Hitler's accomplices
7
“Sonali Banerjee, the relevance of the Hart & Fuller debate relating to law & morality- A critical analysis, ISSN:
2348-8212 Vol 4, International Journal of Law and Legal Jurisprudence Studies, P 123.
https://ijlljs.in/wp-content/uploads/2017/04/Jurisprudence_draft.pdf”

8
would walk free. Hart castigated the judges for introducing the notion of morality and
concluding that the provision within which she sought immunity was in itself unconstitutional8.

 FULLER’S VIEW ON THE JUDGEMENT

  Fuller supported the judge's decision as it promotes value for both legality and morality by
declaring unconstitutional laws illegal and therefore obtaining a high level of adherence to the
law. According to Fuller, all Hitler made statutes were non laws. He claimed that the Nazi
dictatorship was so anti-moral that not one rule could be classified as a law. He claimed that the
Hitlers rules did ot have the internal morality essential in the legislative procedure, which grants
statutes legitimacy and renders them mandatory to obey. Fuller argued that until Hitler's rules
were recognized as non-laws, offenders of Hitler's crimes would walk free. When Hart agrees to
a basic element of natural law, he was being criticized for becoming inconsistent. Hart's rule of
recognition necessitates a minimal degree of legal morality. In every law, fairness in the
implementation of a law is an ethical requirement. Fuller claims Hart is knowledgeable of
internal morality, but that he refers to it as justice in the application of laws9.

 A CRITICAL ANALYSIS OF THE DEABTE

The researchers’ thoughts are more inclined towards the arguments drawn by Prof. Fuller.  Prof.
fuller opposes the rigid positivist perspective, he refers to the injustices occurred under the Nazi
dictatorship to illustrate his point. When Hart claims that his rule of recognition includes
minimal moral requirements, he acknowledges to notions morality. Since they both set forth
desired conduct required of humans, law and morality are strongly connected. I feel that if
the laws are to be embraced by the public, it must adhere to the desired behavior norm. Morals
play a crucial role in determining these norms. 

Separating law and morals is also impossible in practice. As society grows, the notion of ethics
and morality evolves as well. To meet these developments, new law is enacted. For example, the
practice of Sati was deemed immoral, and laws prohibiting such acts was enacted. Likewise, the
offering and receiving of dowry was deemed unethical, and law prohibiting such practices was
enacted.
8
Hart and Fuller Debate on Law and Morality." LawTeacher.net. 11 2013. All Answers Ltd. 11 2021 .
9
Paulson, Stanley L. “Lon L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses.” Law and Philosophy, vol. 13,
no. 3, Springer, 1994, pp. 313–59, https://doi.org/10.2307/3504918.

9
The judiciary's revolutionary decisions, which recognize the concepts of live-in relationships and
consensual sex between adults of the same sexes, demonstrate how well the courts have
interpreted the laws in light of evolving societal values in our society.

 APPLICATION OF NATURAL LAW APPROACH IN CONTEMPORARY

TIMES

The researcher believes that the Natural law and the Analytical approach, both are equally
applicable and relevant in modern times. However, if we put this approaches in Indian context
then, Natural law approach is a bit more applicable in contemporary times. This statement can be
supported by the fact that most of the laws in India are made while keeping in mind the morality
and ethics aspects. Numerous laws are derived from Vedas, which is essentially based on
morality. Lawmakers do not make laws and regulations in a vacuum, and judges do not make
verdicts in a vacuum. They are guided and governed by the ideals that are widely accepted in
society. Morals and ethics are the social standards that serve as the foundation for judges and
lawmakers to develop legal standards. They act as a critique of suggested legislative measures.
Values influence the justice system, which involves a lot of choice and judgement 10. These
values are subject to change as society progresses. When people's ideals shift, the law shifts as
well. The mentality of lawmakers and judges will likewise change as a result of this. Hence, the
researcher believes that the application of natural law approach is more in contemporary times.

 THE RELEVANCE OF LAW AND MORALITY IN MODERN TIMES

 The judgement of section 377 of IPC,

The recent judgement, partially decriminalizes this section. It deals with homosexuality. It used
to make all sexual actions that are not in accordance with nature, a punishable crime.  As a result
of this law, members of the LGBT (lesbian, gay, bisexual, and transgender) community
faced discrimination because of their unique sexual orientation that is morally accepted. From an

10
Reddy, A. Raghunadha. “ROLE OF MORALITY IN LAW-MAKING: A CRITICAL STUDY.” Journal of the
Indian Law Institute, vol. 49, no. 2, Indian Law Institute, 2007, pp. 194–211, http://www.jstor.org/stable/43952105.

10
ethical point of view, person should be allowed the same liberty to decide how they desire to
meet their needs. Law, on the other hand, operates in a contrary way; here, the principle of
morality takes precedence.

 Nikah Halala
Halala is a word derived from the term “halal,” which refers to something that is lawful and
legal. The Muslim personal law includes nikah halala. In this practice, if a man divorces his
spouse and then wishes to remarry, the woman has to marrying another man and
after consummating her marriage, get a divorce from the present husband, in order to remarry her
previous marriage. This practice is against the moral and ethical values.

 Live In Relationship
In India, live in relationship among unmarried couples is considered as morally and ethically
unacceptable. However, the courts in many cases have taken the analytical approach and has
granted protection to the couples11.

 Prostitution
Prostitution is considered as one of the oldest professions in the world. Yet, it is socially and
morally unaccepted. In India, Prostitution in itself is not illegal but carrying out such activities is.
This puts the people in this profession in a difficult position.

 Article 21 of the Indian Constitution

This article is very wide in nature. The scope and ambit of this article was dealt in the case of
Maneka Gandhi v UOI. Where the court ruled that, every person has a fundamental right to life
and personal liberty. And one has to act according to the procedure established by law.

 The historic Sabarimala judgement

When it comes to religious faith and personal beliefs, the courts refrain from adjudicating the
matters. In the Sabarimala temple, girls and women’s who menstruates or are in the age group of

11
Raghav Tankha, Courts are concerned with legality and not morality. They should refrain from preaching, The
Wire, May 21, 2021. https://thewire.in/law/punjab-haryana-high-court-live-in-relationship-morality-
legalityconstitutio

11
10-50 were not allowed in the temple. This was an age-old custom however; it was
discriminatory to females.

 CONCLUSION

Although Hart maintained that there is no essential connection between law and moral

principles. Fuller believed that the separation of law and morals was impossible. Both
jurists belonged to opposing schools of philosophy and advocated their own beliefs. They
ultimately agreed, that an unfair and unethical legal structure will not be sustainable or long-
lasting. Righteousness, which is based on morality, is the goal of legal systems. If there is no
consciousness of moral duty, the overwhelming portion of society will not follow the law's
commands. Our present legal system is a mixture of all the philosophical schools.

ANSWER II

 INTRODUCTION

Friedrich Carl von Savigny, a pioneer of the Historical school of philosophy, was among the
most renowned and prominent German jurists of the nineteenth century. The Savigny's
philosophy of law is known as Volksgeist. Volksgeist is derived from the terms Volks, which

12
signifies people, and Geist, which implies common will. The law, is a common will of the
people, which is Volksgeist (spirit of the people). Volksgeist, to put it simply, is an universal and
widespread view of the people. The fundamental notion underlying Savigny's thought was that
law is a reflection of the people's will, that it does not result through purposeful legislation, and
that it evolves as the country's consciousness grows.

One among Savigny's key principles was that laws are not universally applicable or relevant.
Each culture has its own legal systems, as well as its own dialect, customs, and constitution.
Savigny is an ardent supporter in the linguistic and legal parallelism. None of these can be used
to describe people or nations. The Volksgeist is reflected in popular law, and he feels it is critical
to understand the development of the Volksgeist through legal history. Therefore, the source of
law, as per Savigny, is situated in the people's popular spirit, which he designates Volksgeist. In
Savigny's opinion “The foundation of the law has its existence, its reality in the common
consciousness of the people. We become acquainted with it as it manifests itself in external acts,
as appears in practice, manners, and customs. Custom is the sign of positive law.”

 The Relationship of Law and Popular Consciousness: An Assessment of

the Volksgeist Principles

To comprehend the Volksgeist idea, one must first understand the beginnings of the Historical
School of Philosophy12.

 The origin of the Historical School was predominantly impacted by two attributes:

i. It arose as a response to natural law, which saw "reason" as the base of the law and presumed
that certain universal laws could be ascertained in a rational manner without taking into account
sociocultural, historical, or other aspects; 

ii. It arose in reaction to analytical law, leading to the “'gun-men dilemma,' a lifeless, Sovereign-
made-coercive law devoid of cultural and moral values”. The Historical School was developed
essentially because its proponents considered that earlier schools had overlooked the importance
of sociological or historical aspects.
12
Mathias Reimann, The Historical School against codification: Savigny, Carter and the Defeat of the New York
Civil Code, 37AM J.COMP.L.95,97-98(1989)

13
❖ Explanation of The Volksgeist theory:

Savigny developed his theory, by stating that general framework rules exist in people's
consciousness and reflect itself in general principles. From these grounds, it was established that
the law implies oblivious development. Every law must, under this concept, follow the natural
path of occurrences. As a consequence, law never apply uniformly; it differs depending on the
individual and their generation. Because laws aren’t a false lifeless machinery, as per Savigny, a
law issued without considering the network's history, recognized tradition and custom will most
probably generate more havoc than it will solve the problems.   The term Volksgeist denotes to
spiritual or psychological dynamic principles that work in many national institutions and
manifest itself in different forms such as dialect, culture, social norms, and legal systems. Every
bit of law must be customized to the conduct of the people. After capturing parts of Germany,
Napoleon imposed Napoleonic restrictions on the German people, which appeared to be an
unnecessary element of complication for the Germans. Only administrations that represent the
folk's culture and heritage are qualified to rule them, and laws which are applicable to one nation
may not be applicable to another. As per Savigny, the source of law is located in the people's
popular spirit, which he designates to as Volksgeist. 

 The Volksgeist Theory's Significance to the Historical School:

The following are the main sigfinance  of the Volksgeist theory to the Historical School13:

i. Law is revealed and discovered instead of creation-

  Laws are essentially governed by people 's entire past; as a consequence, they are discovered
instead of created as an outcome of natural and unconscious development. It can be discovered in
well-known religions and also popular views, practises, habits, attitudes, and traditions that have
developed over time into legal concepts.

ii. Law develops as per society’s need-

Law emerges organically in reaction to society's inherent needs in the initial phases, but it is
only established by philosophers once the society has reached a specific level of civilization, as

13
Zainul Rizvi, Historical School of Jurisprudence, INDIAN LEGAL SOLUTION, (Nov. 23, 2021, 05:37 pm),
https://indianlegalsolution.com/historical-school-of-jurisprudence.

14
per Savigny. Law must serve two purposes: it must regulate state's affairs while also serving as
an unique scholarly discipline. Notwithstanding the notion that the former is known as the
sociopolitical aspect of law and the subsequent as the philosopher’s aspect, both are essential to
the development of law.

iii. Law, like languages, grows in the existence of people:

Law, like dialect, grows spontaneously over time in response to the existence and nature of
people. Since there will never be a period of rest in the later, there is continuously movement,
and the development of law is guided by the same underlying requirement as the development of
primary events. A country's law is a feature that develops, flourishes, and expires with it.

iv. Law’s dynamic nature:

As per Savigny, law is a continuous, everlasting process that is generated by common cultural
practices and values. Its roots can be traced all the way back to historical occurrences. As a
consequence, codified of law may hinder further development, and it must be used only once the
legal institution has grown and settled.

 UNDERSTANDING THE JUDGEMENT OF SABRIMALA TEMPLE CASE AND

THE CASES OF HONOUR KILLINGS WITH RESPECT TO VOLKGEIST
THEORY
 The Volksgeist Theory and Its Implementation in the Indian Legal System:

Before we understand the Sabrimala temple decision and honour killing cases, we should first
comprehend the relevance of Volksgeist theory in the Indian set - up. The preamble of the
Constitution of india reflects Volksgeist ideals. "We the People," "Economic, Social, and
Political Justice," and "We the People" are all expressions that emphasise the folk's will as it's
was influenced by historical and social occurrences. To give the state the opportunity to develop
and amend laws that were in pace with cultural dynamics, the constituent assembly left
marriages, succession, inheritance, and adoption laws unaltered. Nonetheless, the courts'
interpretations have been varied. The judiciary stated that India follows parliamentary superiority
in cases like ADM Jabalpur v. Shivkant Shukla 14 and A.K Gopalan v. State of Madras15, allowing
14
ADM Jabalpur v. Shivkant Shukla ,976 AIR 1207
15
A.K Gopalan v. State of Madras AIR 1950 SC 27

15
them to modify legislation against the will of the folks, while the judiciary established the
principle of basic structure in the historic judgement of Kesavananda Bharati v. State of Kerala16,
stating that the constitution's spirit or essence cannot be modified or amended by the
Parliament17.

❖ The Verdict of the Sabrimala Temple:

i. A Short analysis  of the Facts:

Females were not allowed to join in the pilgrimage to the Sabrimala Temple, which is devoted to
Lord Ayappa. This was owing to a tradition that forbade females within the years of ten and fifty
from entering the shrine because of menstruation. The Apex Court decided in favour of the
females, stating that females of all ages must be permitted to visit the shrine. In this judgment,
Justice Indu Malhotra was the single judge who gave dissenting opinion.

ii.  Justice Indu Malhotra's Dissenting Opinion:

Justice Malhotra believed that religious groups and institutions in a diversified country like India
have the liberty to choose the customs and beliefs that are significant to them. She asserts that
judiciary have no authority to intervene in or adjudicate on matters that affect a community's
norms solely on the basis of irrationality, immorality, or injustice. She maintains that the
judiciary does not have the power to rationalise religion, believes, or devotion; yet, when
customs and traditions such as sati create serious societal damage, it is the judiciary's
responsibility to intervene.

iii. A  study of the Verdict in light of the Volksgeist theory:

A large percentage of people opposed to the apex court's judgement, believing that allowing
females to the shrine would be against their practices and beliefs. It may be viewed from two
different angles. To begin with, that if a custom is infringing on folk's basic rights, it must be
removed, regardless if it is practiced by a minor or major segment of society. In the historic
decision of Shayara Bano v. Union of India 18, the Apex Court held that "since codified personal

16
Kesavananda Bharati v. State of Kerala 1973) 4 SCC 225
17
Indralina Sen, Relevance of Volksgeist: a theory propounded by Savigny, ASIAN LAW & PUBLIC POLICY
REVIEW, (Nov. 24, 2021, 08:22 am), https://thelawbrigade.com/wp-content/uploads/2019/07/Indralina-Sen.pdf
18
Shayara Bano v. Union of India 2017) 9 SCC 1.

16
law has statutory effect and is covered by Article 13, it cannot impede on women's basic rights."
It's important emphasizing that the Apex Court annulled instead of declared Talaq-e-Biddat
(triple talaq) unlawful.  It could also be claimed that simply prohibiting a particular group of
females from visiting a single temple does not constitute such a serious infringement of basic
rights that the judiciary should intervene and overturn the long-standing custom. The Apex Court
explicitly stated in Krishna Singh v. Mathura Ahir19 that personal laws cannot be questioned
since they encroach on basic rights.

❖ Studying the Cases of Honor Killings:

i. The Honor Killings Concept and Khap Panchayats:

Honour killing, also called as shame killing, is the killing of a member of family on the basis of
the assassin's individual belief that the deceased has caused disgrace or dishonor to its family by
breaching communal or religious values, such as marrying beyond their community. There are
various factors to worry in India, such as the prevalence of a patriarchal system and the caste -
based system. On the other side, the concept of Khap Panchayats has performed a huge part in
the upsurge of honour killings and could be regarded a worse societal evil. In a society, a Khap
Panchayat is a group of individuals or a community with authority and significance. They are
mostly found in Northern India. These individuals take matters into their own and participate in
unlawful conduct that threatens the lives of persons they deem demeaning at risk.

ii. Judgment of the Judiciary on Honor Killings:

A Petition was submitted before the Rajasthan High Court in the matter of Smt. Laxmi
Kachhwaha v. State of Rajasthan20 to prohibit the Khap Panchayat's illegal acts that were
violating people's basic rights. As a result, the judgment directed the government to outlaw the
Khap Panchayat's actions, and also investigate and punish those who participate in such
activities. The judgment given in the matter of Lata Singh v. State of U.P21. that “in reality, inter-
caste marriages are in the national interest since they will abolish the caste structure. When a
person achieves the status of a major in India, he or she is free to marry anyone they want. If the
boy's or girl's parents do not approve of such an inter-caste or inter-religious marriage, the most
19
Krishna Singh v. Mathura Ahir 1980 AIR 707.
20
Smt. Laxmi Kachhwaha v. State of Rajasthan, Civil Writ Petition No. 2852 of 1998.
21
Lata Singh v. State of U.P 2006 (2) KLJ 735.

17
they can do is cut off social relations with their child, but they cannot threaten, commit, or
instigate acts of violence, or harass the person who goes through such an inter-caste or inter-
religious marriage.”

iii. A study of the Verdicts in light of the Volksgeist theory:

Although the Judiciary' decisions in the aforementioned instances may be against particular
segments of Indian society's present societal standards, this does not diminish the importance of
customs and traditions as a foundation of law. Although an individual may have defied
traditional norms by marrying into another caste, Khap panchayats do not have the authority to
serve as justices; that authorization belongs entirely to the judiciary. There may be conflicting
views on a traditional norm throughout this time of transformation, but as Savigny has stated
that, once society has formed law, it is the role of judges to enhance it, and law, like languages,
grows over time due to society's dynamic nature.

 The Significance of Realism School in The Indian Legal System.

 What is the concept of legal realism?

Legal realism is a naturalistic legal doctrine. Jurisprudence, in its viewpoint, should adhere to the
approach of natural science, i.e., rely on empirical information. To analyze assumptions,
worldwide findings must be employed. Legal realists think that only value-free methodologies
developed by natural science should be utilized to analyze law, instead of philosophical research
into the law's content and objective, which is independent and different from the law. In reality,
legal realism contends that the law could not indeed be isolated from its implementation and that
it is challenging to understand. The significance of comprehending the reasoning inherent in
court decision making is demonstrated by creating the foundation of law in areas such as legal
judgements made by courts and their respect.

❖ Legal Realism in Indian legal structure:

“In India the Supreme Court is regarded to be the custodian of the Indian Constitution and the
Constitution being the fundamental law governing the country is a living document propounding
law which is organic, dynamic and forever changing. Hence, the Supreme Court is endowed with
the task of being pragmatic yet willful, progressive yet rational so as to take into account the

18
current necessities with a futuristic approach but also within the safety valves set forth by the
Constitution of India.” This was decided in the matter of State of Uttar Pradesh v. Jeet S.
Bisht22.  The Judiciary have demonstrated via judicial activism that evaluating non-legal matters
such as policy reforms and consciously evolving the law is not just doable but is also
advantageous to society, given that judiciary exercise caution and recognize when activism
exceeds the narrow line into judicial overreach.

 The apex court acknowledged sexual harassment as an evil and created guidelines for combating
sexual harassment of females at workplaces in the matter of Vishakha & Ors v. State of
Rajasthan23, upholding the basic right to gender equality and the entitlement to work with
dignity. A further illustration of the judiciary's realism is the matter of Navtej Singh Johar v.
Union of India24. By outlawing Section 377 of IPC, which rendered all sorts of homosexual
activity an unlawful offence, the Apex Court not only legalized same-sex relations, but it further
upheld the principle to equality by embracing LGBTQ rights. Another case is the Triple Talaq
case, wherein the judges outlawed triple talaq and concluded that personal laws could not
infringe fundamental rights since they were regulated. Adultery, section 497 of IPC is arbitrary,
according to the decision in Joseph Shine v. Union of India25. Nevertheless, merely because
something is unlawful does not rule out the option of a divorce. This strengthens the case for
legal realism's incorporation in the Indian legal system.

Conclusion

The Volksgeist theory paved the path for today's sociological perspective to law, which focuses a
greater emphasis on the law-society link. In the eighteenth century, Savigny's idea was a reaction
to natural and analytical law theory. The essence of Volksgeist was that a country's legal
structure which is strongly influenced by its people's cultural history and practices, and that the
growth of law is rooted in people's approval. People are permitted to follow their values and
beliefs under the constitution, yet laws relying only on the will of the folks may violate the
fundamental principles enshrined in our Constitution. The Indian judiciary is recognized as the
protector of our Constitution. There was a considerable movement in judiciary's attitudes in the
22
State of Uttar Pradesh v. Jeet S. Bisht ,Appeal (Civil) 2740 of 2007
23
Vishakha & Ors v. State of Rajasthan , AIR 1997 SC 3011.
24
Navtej Singh Johar v. Union of India AIR 2018 SC 4321.
25
Joseph Shine v. Union of India AIR 2018 SC 4898.

19
late 1970s and early 1980s. The Kesavananda Bharati decision established comprehensively that
judicial primacy adhered to lawful interpretations, enabling it to perform a decisive and creative
role in shaping new constitutional jurisprudence because of dynamic political and socioeconomic
aspects, including 'Legal Realism.'

REFERENCES

BOOKS:
DR. V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY, (5th ed. 1987).

WEBSITES:
 Nadler, Jennifer. “Hart, Fuller and the Connection between Law and Justice.” Law and
Philosophy, vol. 27, no. 1, Springer, 2008, pp. 1–34,
http://www.jstor.org/stable/27652636.
 Raghav Tankha, Courts are concerned with legality and not morality. They should refrain
from preaching, The Wire, May 21, 2021. https://thewire.in/law/punjab-haryana-
highcourt-live-in-relationship-morality-legality-constitution ·

20
 Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard
Law Review, vol. 71, no. 4, The Harvard Law Review Association, 1958, pp. 630–72,
https://doi.org/10.2307/1338226. · Sheela Rai, Hart’s concept of law & the Indian
constitution, The Practical Lawyer, (2002) 2 SCC (Jour) .
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf
=1&id=783 ·
 Reddy, A. Raghunadha. “ROLE OF MORALITY IN LAW-MAKING: A CRITICAL
STUDY.” Journal of the Indian Law Institute, vol. 49, no. 2, Indian Law Institute, 2007,
pp. 194–211, http://www.jstor.org/stable/43952105. ·
 Sonali Banerjee, the relevance of the Hart & Fuller debate relating to law & morality- A
critical analysis, ISSN: 2348-8212 Vol 4, International Journal of Law and Legal
Jurisprudence Studies, P 123.
https://ijlljs.in/wpcontent/uploads/2017/04/Jurisprudence_draft.pdf

 http://www.legalservicesindia.com/article/2228/Analytical-Legal-Positivism.html

 http://www.jstor.org.elibraryhnlu.remotexs.in/action/doBasicSearch?Query=Review%3A

 +Natural+Law%2C+Positivism%2C+and+the+Limits+of+Jurisprudence
%3A+A+Modern+Round&so=rel
 http://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-
Indian- Constitution.html#:~:text=Any%20order%20made%20in%20violation,partem
%20rule% 20is%20a%20nullity.
 https://www.clatpath.in/pdf/Jurisprudence- The%20Philosophy%20and%20Method
%20of%20the%20Law%20by%20V.D%20Maha jan.pdf
 https://www.legalserviceindia.com/legal/article-414-the-relevance-of-positivism-
in- culturally-plural-india-society.html
 https://www.legalserviceindia.com/legal/article-4931-analytical-positivisim-
indian-
 http://www.internationaljournalssrg.org/IJHSS/2017/Volume4-Issue6/
IJHSS-
 https://www.lawnotes4u.in/what-are-the-differences-between-natural-law-and-
legal-
21
22