THEORIES OF LAW ( DETAILED- By Prof.

Madhura Bhangle
REFERRAL NOTES)
NATURAL LAW THEORY
Relates to set of principles of human conduct
Depends on right reasoning
Justice and Morality and Common Sense
Founders: Plato and Aristotle

Main idea behind Natural Law theory :

a. moral Standards
b. Man made laws should be in conformity with Natural laws
c. If the man made laws are not in conformity with natural laws thrn they are considered as
bad laws
NATURAL LAW THEORY- MERITS:
Popular and commonly adopted
Grounds for Fundamental rights
Ground for framing International Laws
Easy to interpret
NATURAL LAW THEORY- DEMERITS
No uniformity
Lacks punishments
No distinction in law and morality
IMPERATIVE THEORY LAW
Founder : John Austin
Also known as Positive Theory of Law
Just like Natural Theory talks about Reasoning. Positive theory talks about
Command of Sovereign.
Austin states : Every positive or every law strictly so called is directly or indirectly
command of monarch or sovereign in character of political superiority and persons or
person are subject of such command of the authority
Positive law is basically human-made law. It includes statutes laid down by
legislatures or rules and regulations by the human institution.
WHAT IS “LAW” FOR AUSTIN?

“Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject.”
In other words, he says, laws are man-made rules by sovereign imposed upon the society it governs. He equates a law to a
“command” by a body which is politically higher.
This twofold view, that
(1) law and morality are separate and
(2) that all human-made ("positive") laws can be traced back to human lawmakers, is known as legal positivism.
Thus we have following essentials
Sovereign, which makes a
Command, which imposes a
Duty, which IF NOT followed calls for
Legal sanction
THREE IMPORTANT FEATURES OF IMPERATIVE
THEORY

Command Sovereign Sanction

COMMAND
Law is command of sovereign
There is a supreme authority who frames or issues rules
The rules and regulations issued by government for conducting human affairs are in
nature of commands issued by sovereign failure to obey them may lead to penalty.
Commands are Rules and Regulations by official law making body directly or
indirectly
SOVEREIGN

According to Austin, every political set up has a sovereign power which is habitually
obeyed by the people in the society. There is only one sovereign in the society and it
can be a single person or a group. It is the sole source of power and creator of laws .
The form and structure of sovereign depends on the political system of state
That depends on democratic or monarchial approach of the state
SANCTION

It is implied in the theory that this sovereign has with itself a power to punish or
penalize for noncompliance of laws. This penalty or punishment imposed is called
Legal Sanction. The dread of legal sanction, as an evil consequence in case of
disobeying, is the motivation behind one’s adherence of law and thus is a requisite
part.
Sanctions are penalty which are mandatory in nature
 C+S+S= LAW
IPC is passed by parliament and has penalties and hence considered as law by
Austin.
MERITS OF THIS THEORY
Distinguishes law and morality
Defines a supreme power
Comparatively consistent and clear theory
DEMERITS
Neglects moral and ethics
Neglects public opinion
International law no law as per Austin due to lack in proper sanctions
Not all commands are laws can be mere instructions
LEGAL REALISM
FOUNDERS:
1. Salmond (English)
2. Holmes and Gray and Frank ( American)
Judicial Creativity
Judge made law
Justice Holmes “ The life of law is not logic but it is experience”
FEATURES
Law has roots in experience
Law is what court decides
Absolute belief on Natural law are rejected
It has focus on social aspect and situation

S+P=D
Situation + Perception (of judge) = Decision (Law)
MERITS
Realistic
Flexibility in law
Focus on judicial process
DEMERITS
Law becomes lopsided
No accuracy
Too much dependency on Judges
Neglects Statutory Laws
Creates chaos
SYSTEM OF RULES
Founder : Prof Hart- The Concept of Law
Rules having broad application and non- optional in nature
Laws are combination of Rules
Rules n principles forming statute make a legal system
Legal system if combination of:

1. Primary Rules
2. Secondary Rules : a. Rule of Change b. Rules of Adjudication c. rule of
recognition
PRIMARY RULES

Primary rules are rules, or laws, that govern general societal conduct. Thus, primary
rules construct legal obligations and consequences when they are disobeyed.
They impose duties and prescribe behaviour
SECONDARY RULES
Secondary rules confer power to create sovereignty; they also confer the power to
change, modify, or enforce rules.
They are termed as Power Conferring Rules
C.A.R.
1. Rule of change – rules that give power to change the law.
2. Rules of Adjudicating- Rules that confer officials competent to pass judgment
3. Rule of recognition- rules that validates.
MERITS
Focuses on Obligation
Flexible
Practicality
Clarity in regulation and rules
Improvement to Austin's theory
DEMERITS
Formal classification of rules
Not all have broad application
Less focus on court laws or morals
PURE THEORY OF LAW- GRUND NORMS
Founder Kelsen
Kelson’s pure theory of law is one of positive law which is based on normative order
eliminating all extra-legal and non-legal elements from it.
Kelson’s pure theory of law is based on the basic norm that he called ‘grundnorm’.
The word ‘grundnorm’ is a German word meaning fundamental norm.
The Grundnorm is the starting point in a legal system and from this base; a legal
system broadens down in gradation becoming more and more detailed and specific
as it progresses. This is a dynamic process. At the top of the pyramid is the
grundnorm, which is independent. The subordinate norms are controlled by norms
superior to them in hierarchical order. The system of norms proceeds from downwards
to upwards and finally closes at grundnorm.
Kelsen calls it grundnorm or the basic norm or Ground/ Base norms
Grundnorm, as defined by Kelson, is used to denote the basic norm, order, or rule
which go on to form the basis for any and every legal system. This can be regarded
as the source of the validity of positive law of that legal system.
The Indian Constitution is the paramount source of law in our country. The grundnorm,
the basis of the legal system is the reason for validating the Constitution and it
signifies that the Constitution is accepted by the legal system. The Constitution is the
paramount source of law. All the laws made should be in consonance with the
principles enshrined in the Constitution. The grundnorm only validates the Constitution
and the norms derived from it. Keshava Nanda Bharti, cannot change the ‘basic
structure’ of the Constitution. The amendments cannot be made to alter the framework
and basic structure of the Constitution to the extent of changing its identity. This fact
clearly indicates that the principle of grundnorm can be applied.
MERITS
Determines proper authority
Consistent
Systematic
clarity
DEMERITS
Base laws are rigid
Base laws neglects precedents and morals
Base laws neglects situation