JAMIA MILLIA ISLAMIA, NEW DELHI

FACULTY OF LAW

SESSION: 2018-2023

SUBJECT: JURISPRUDENCE I ASSIGNMENT

SUBJECT CODE: BLW-402

SUBMITTED TO: SUBMITTED BY:

MR. GAURAV GUPTA SIR SHAYAN ZAFAR

GUEST FACULTY IInd Year(R)

ROLL NO.:57

STUDENT ID.: 20182859

 UNIT-1

1. Salmond states that “Jurisprudence is a name given to a certain type of

investigation into law, an investigation of an abstract, general and theoretical nature
which seeks to lay bare the essential principles of law and legal system”. Explain the
nature and utility of jurisprudence in the light of abovementioned definition. Do you
think it is the most appropriate definition of jurisprudence?

Answer:

According to Salmond Jurisprudence is the science of the first principles of the civil law. It deals
with a particular species of law e.g. civil law or law of the state. The civil law consists of rules
applied by courts in the administration of justice. He agrees with Gray in upholding that
jurisprudence is concerned with only jurists law and is not concerned with the laws of
theologians and moralist although they also govern the conduct if man in society. According to
him, jurisprudence in the specific sense includes theoretical jurisprudence; therefore, it doesn’t
deals with concrete details but with its fundamental principles and conceptions. General
jurisprudence as visualized by him doesn’t deal with the study of legal system in general but with
the general and fundamental elements of a particular legal system.

Salmond has divided jurisprudence the specific senses. They are as follows:

I. Analytical Jurisprudence: The purpose of which is to analyze, without reference either

to their historical origin or development to their ethical significance or validity-the first
principles of law.
II. Historical Jurisprudence: The purpose of which is to deal with the general principles
governing the origin and development of law, it is the history of the first principles and
conceptions of the legal system.
III. Ethical Jurisprudence: The purpose of which is to deal with the law from the point of
view of its ethical significance and adequacy. It is concerned not only with the
intellectual content of the legal system or with its historical development but with the
purpose for which it exists and the measures and manner in which that purpose is
fulfilled. According to him, the complete scientific treatment of any body of law involves
the study of these categories of jurisprudence. His definition has been criticized on the
 ground that he has narrowed down the field of jurisprudence by saying that it is a science
of civil law, and hence covers only particular legal system. With the emergence of
functional approach, the province or scope of jurisprudence cannot be limited. The study
of jurisprudence is not confined to the study of law as administered by courts of justice. It
also takes note of the facts of social life of societies.

He further divides jurisprudence into three categories. They are as follows:

I. The Legal Exposition: The purpose of which is to set forth the contents of an actual
legal system as existing at any time, whether past or present.
II. The Legal History: The purpose of which is to set forth the historical process whereby
any legal system came to be what it is or what it was.
III. The Science of Legislation: The purpose of which is to set forth the law, not as it is or
has been, but as it ought to be. It doesn’t deal with the past or present of any legal system
but with its ideal future.

Nature and utility of Jurisprudence:

The subject of Jurisprudence has its own intrinsic interest and value because it is a subject of
serious scholarship and research. Researchers in Jurisprudence contribute to the development of
society by having repercussions in the whole legal, political and social school of thoughts. One
of the tasks of this subject is to construct and elucidate concepts serving to render the
complexities of law more manageable and more rational. It is the belief of this subject that the
theory can help to improve practice.

It also has an educational value. It helps in the logical analysis of the legal concepts and it
sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat the
lawyer’s occupational view of formalism which leads to excessive concentration on legal rules
for their own sake and disregard of the social function of the law.

The study of jurisprudence helps to put law in its proper context by considering the needs of the
society and by taking note of the advances in related and relevant disciplines. It can teach the
people to look if not forward, at least sideways and around them and realize that answers to a
new legal problem must be found by a consideration of present social needs and not in the
wisdom of the past.

It is the eye of law and the grammar of law because it throws light on basic ideas and
fundamental principles of law. Therefore, by understanding the nature of law, its concepts and
distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language,
grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some
logical training is necessary for a lawyer which he can find from the study of Jurisprudence. It
trains the critical faculties of the mind of the students so that they can dictate fallacies and use
accurate legal terminology and expression. It also helps a lawyer in his practical work. A lawyer
always has to tackle new problems every day. This he can handle through his knowledge of
Jurisprudence which trains his mind to find alternative legal channels of thought.

It also helps the judges and lawyers in ascertaining the true meaning of the laws passed by the
legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should
not be confined to the study of positive laws but also must include normative study i.e. that study
should deal with the improvement of law in the context of prevailing socio-economic and
political philosophies of time, place and circumstances.

Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social existence’

According to me it is not the most appropriate definition of jurisprudence because the salmond’s
definition on the ground has limited the scope of jurisprudence to a particular legal system. As
Jurisprudence has a wider scope and covers a lot more than what have been defined by Salmond.
Salmond by defining Jurisprudence has narrowed the horizon of Jurisprudence as stated by Dr.
Allen. And also It is submitted that Salmond had failed to give an accurate and scientific
definition and also the divisions made by him of jurisprudence into general and particular raises
a great deal of criticism as the Holland observes that these expressions should be discarded as the
science should be treated as incapable of being divided into these two branches.
 UNIT-II

2. Critically examine the natural law theory. Is this theory relevant today?

Answer:

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. 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 reason1. 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 are those dictated by reason alone and are those which enable them to live in harmony with
one another. From this argument, Grotius developed the first comprehensive theory of
international law.

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

1
H.L.A. Hart, The Concept Of Law, (Clarendon Press, London).
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.

During the 19th century natural law theory lost influence as utilitarianism and Benthamism,
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. It is also termed
as Divine Law, Law of Nature, Law of God, etc. Divine Law means the command of God
imposed upon men. It is also referred as the Law of Reason, as being established by that reason
by which the world is governed, and also as being addressed to and perceived by the rational of
nature of man. It is also the Universal or Common Law as being of universal validity, the same
in all places and binding on all peoples, and not one thing at Athens.

In modern times we find it termed as “moral law” as being the expression of the principles of
morality. The Natural Law denies the possibility of any rigid separation of the ‘is’ and ‘ought’
aspect of law and believes that such a separation is unnecessarily causing confusing in the field
of law. The supporters of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have
been drawn from the nature of man and the Law of Nature and, therefore, this aspect cannot be
completely eliminated from the purview of law. It has generally been considered as an ideal
source of law with invariant contents.

The content of ‘Natural Law’ has varied from time to time according to the purpose for which it
has been used and the function it is required to perform to suit the needs of the time and
circumstances. Therefore, the evolution and development of ‘Natural Law’ has been through
various stages which may broadly be studied under the following heads:

i. Ancient Period
ii. Medieval Period
iii. Renaissance Period
iv. Modern period
Ancient Period:

Greek thinkers laid the basis of natural law and developed its essential features. Heraclitus laid
the basis of natural law. He found it in the rhythm of events 2. Thus he turned destiny, order and
reason of the world. Nature is not just substance, but a relation, an order of things. The thought
of an order of nature in conformity with law dawned as clear knowledge upon Grecian minds.
This provided the basis for the Greek school of enlightenment (sophists) which developed in the
5th century B.C. The contact between nature and institution is the most characteristic work of
Greek enlightenment in the formation of conceptions.

HERACLITUS

The concept of Natural Law was developed by Greek philosophers around 4th century B.C.
Heraclitus was the first Greek philosopher who pointed at the three main characteristic features
of Law of Nature namely, (i) destiny, (ii) order and (iii) reason. He stated that nature is not a
scattered heap of things but there is a definite relation between the things and a definite order and
rhythm of events. According to him, ‘reason’ is one of the essential elements of Natural Law.

SOCRATES

Socrates reflected upon that element which was the decisive factor in the culture of his time. He
defined virtue, the fundamental ethical conception, as insight, in turn, as knowledge of the good,
the concept of good with no universal content. One of the dictates of natural law is that authority
and positive law should be obeyed. However, he did not argue blind adherence to positive law.
That should be subjected to the critical evaluation in the light of man’s insight3.

PLATO

Plato laid the foundations for much of subsequent speculation of natural law themes. According
to him, God gave all his men, equal measure of sense of justice and of ethical reverence so that
in the struggle of life they may be able to form permanent unions for mutual preservation. He
found the nature of practical life in primary ethical feelings which impel men to union in society
and in the State. In the ideal State of Plato, each individual is given that role for which he is best

2
V. D. Mahajan, Jurisprudence and Legal Theory, (Eastern Book Company, Lucknow).
3
Dr B.N. Mani Tripathi, Jurisprudence: Legal Theory, (Allahabad Law Agency, Allahabad).
fitted by reason of his capacities. His Republic is a constructive attempt to discover the basis of
justice. The administration of justice is given to the philosopher kings whose education and
wisdom is such that there is no necessity to link them up with a higher law.

ARISTOTLE

In his Logic, Aristotle sees the world as a totality comprising the whole of nature. Man is a part
of nature in a twofold sense. On the one hand, he is a part of matter, part of the creatures of God.
As such, he partakes of experience. Man is also endowed with active reason which distinguishes
him from all other parts of nature. He is capable of forming his will in accordance with the
insight of his reason. It is the recognition of human reason as a part of nature which provides the
basis for the Stoic conception of the law of nature. The Stoics develop this principle into an
ethical one.

STOICS

For Stoics, the postulates of reason are of universal force. They are binding on all men
everywhere. Men are endowed with reason, irrespective of nationality and race.

Natural Law in Roman System:

In the Roman system, the theory of natural law did not remain confined to theoretical discussions
only. The Romans used natural law to transform their narrow and rigid system into a
cosmopolitan one. Natural law exercised a very constructive influence on Roman law. The
Romans had three divisions of law they are jus civile, jus gentium and jus naturale.

Jus civile or Civil law of the Romans was for Roman citizens only. On the principles of natural
law, the Roman magistrates applied those rules which were common with foreign laws to foreign
citizens. The body of law which grew up in this way was called jus gentium and it became a part
of Roman law. It represented the good sense and universal legal principles and conformed to
natural law. Later on jus gentium and jus civile became one when Roman citizenship was
extended to all except a few classes of people. The Roman lawyers did not bother about the
conflict between natural law and positive law. However, there were some jurists who considered
natural law as superior to positive law but the majority of the Roman jurists did not enter into
this problem.
Natural Law in India:

Hindu legal system is perhaps the most ancient legal system of the world. They developed a very
logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades the
whole body of law. But the frequent changes in the political system and government and
numerous foreign invasions, one after the other prevented its systematic and natural growth.
Under the foreign rule no proper attention could be paid to the study of this legal system. Many
theories and principles of it are still unknown, uninvestigated. Whether there was any conception
of ‘Natural Law’ or not, and if there was any, what was its authority and its relation with
‘Positive Law’ are the questions which cannot be answered with great certainty. However, some
principles and provisions can be pointed out in this respect. According to the Hindu view, Law
owes its existence to God. Law is given in ‘Shruti’ and ‘Smritis’. The king is simply to execute
that law and he himself is bound by it and if goes against this law he should be disobeyed.
Puranas are full of instances where the kings were dethroned and beheaded when they went
against the established law.

Medieval Period:

Catholic philosophers and theologicians of the Middle Ages gave a new theory of ‘Natural Law’.
Though they too gave it theological basis, they departed from the orthodoxy of early Christian
Fathers. Their views are more logical and systematic. Thomas Acquinas views may be taken as
representative of the new theory. His views about society are similar to that of Aristotle. Social
organization and state are natural phenomena. He defined law as ‘an ordinance of reason for the
common good made by him who has the care of the community and promulgated’. St. Thomas
Aquinas gave a fourfold classification of laws, namely,

a. Law of God or external law,

b. Natural Law which is revealed through “reason”,
c. Divine Law or the Law of Scriptures,
d. Human Laws which we now called ‘Positive law’.

Natural Law is a part of divine law. It is that part which reveals itself in natural reason. Like his
predecessors, St. Aquinas agreed that Natural Law emanates from ‘reason’ and is applied by
human beings to govern their affairs and relations. This Human Law or ‘Positive Law’,
therefore, must remain within the limits of that of which it is a part. It means that Positive Law
must conform to the Law of the Scriptures. Positive Law is valid only to the extent to which it is
compatible with ‘Natural Law’ and thus in conformity with ‘Eternal Law’. He regarded Church
as the authority to interpret Divine Law. Therefore, it has the authority to give verdict upon the
goodness of Positive Law also. Thomas justified possession of individual property which was
considered sinful by the early Christian Fathers.

The Period of Renaissance

The period of renaissance in the history of development of Natural Law may also be called the
modern classical era which is marked by rationalism and emergence of new ideas in different
fields of knowledge.

20th Century Revival of Natural Law

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took place. It was
due to many reasons: First, a reaction against 19th century legal theories which had exaggerated
the importance of ‘positive law’ was due and theories which over-emphasized positivism failed
to satisfy the aspirations of the people because of their refusal to accept morality and ‘reason’ as
element of law; Second, it was realized that abstract thinking or a priori assumptions were not
completely futile; Third, the impact of materialism on the society and the changed socio-political
conditions compelled the 20th century legal thinkers to look for some value-oriented ideology
which could prevent general moral degradation of the people. The World War 1 further shattered
the western society and there was a search for a value-conscious legal system. All these factors
cumulatively led to revival of Natural Law theory in its modified form different from the earlier
one. The main exponents of the new revived Natural Law were Rudolf Stammler, Prof. Rawls,
Kohler and others.

Rudolf Stammler

Stammler defined law as, “species of will, others-regarding, self-authoritative and inviolable”.
For him, a just law was the highest expression of man’ social life and aims at preservation of
freedom of individuals. According to him, the two fundamental principles necessary for a just
law were: (1) principles of respects, and (2) the principle of community participation. With a
view to distinguishing the new revived Natural Law from the old one, he called the former as
‘Natural Law with variable content’. According to him, law of nature means ‘just law’ which
harmonizes the purposes in the society. The purpose of law is not to protect the will of one but to
unify the purposes of all.

Professor Rawls

Professor Rawls made significant contribution to the revival of Natural Law in the 20th century.
He propounded two basic principles of justice, namely,

 equality of right to securing generalized wants including basic liberties,

opportunities, power and minimum means of subsistence; and
 social and economic inequalities should be arranged so as to ensure maximum
benefit to the community as a whole.

Hart

Hart, the leader of contemporary positivism, though critical of Fuller’s formulation, has
attempted to restate a national law position from a semi-sociological point of view. Hart points
out that there are certain substantive rules which are essential if human beings are to live
continuously together in close proximity. “These simple facts constitute a case of indisputable
truth in the doctrines of natural law”. He places primary emphasis here on an assumption of
survival as a principal human goal. “We are concerned”, he says, “with social arrangements for
continued existence and not with those of suicide clubs. There are, therefore, certain rules which
any social organization must contain and it is these facts of human nature which afford a reason
for postulating a ‘minimum content’ of Natural Law”

Finnis

Finnis who in his writing ‘Natural Law and Natural Rights’, restated the importance of natural
law. For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering human
life and human community. Drawing on Aristotle and Aquarius, Finnis sets up the proposition
that there are certain basic goods for all human beings. The basic principles of Natural Law are
pre-moral. These basic goods are objective values in the sense that every reasonable person must
assent to their value as objects of human striving.
Yes, this theory is definitely relevant today; Natural law contributed a pivotal role to the legal
thought. It really widened the scope for the development of jurisprudence. The natural law
philosophy occupies an important place in the realm of politics, law, religion and ethics from the
earliest times. It has played the role of harmonizing, synthesizing and promoting peace and
justice in different periods and protected public against injustice, tyranny and misrule. The
natural law theory reflects a perpetual quest for absolute justice. At a purely factual standpoint
the history of the natural-law idea teaches one thing with the utmost clearness: the natural law is
an imperishable possession of the human mind. In no period has it wholly died out. At least since
the advent of Christianity, it has always had a home in the philosophia perennis whenever it
appeared to be temporarily banished from the secular wisdom of the jurists. Even in
jurisprudence it has never entirely lost its efficacy. No one has better established this fact than
Bergbohm, who was tireless in uncovering traces of the natural law. He discovered natural law
everywhere, even in the thinking of the strictest positivists of the late nineteenth century.
Ironically enough, Bergbohm, who had set out to banish natural law once and for all from
jurisprudence, lived to hear Joseph Kohler say of his formidable attack on the natural law that he
had merely demonstrated the utter untenableness of legal positivism, i.e., the complete
untenableness of the doctrine directly opposed to the natural law.

Yes, in a sense natural law is as important as it ever was. At some point of time, law and the
goals behind it (justice, equity, fairness, and security) do not prove themselves out of thin air.
One needs to adopt some underlying decisions about what to achieve, and the reasons for doing
so. If one believes that every human being has dignity, that people should be free, that the
individual should be empowered, people should not be forced to do things against their interest
unless there is some principled plan for doing so, that human relationships should be aligned
with nature, or science, or reason, all of these underlying principles are not created out of the
legal system, they are the premises on which a legal system can be built.

“The natural law, present in the heart of each man and established by reason, is universal in its
precepts and its authority extends to all men”. It’s not universally obeyed, or even universally
admitted, but it is universally binding and authoritative. “The natural law is immutable and
permanent throughout the variations of history” because it is based on God-made essential
human nature, which does not change with time or place, rather than man-made cultural
developments, which do.

Because man’s essence does not change, but his circumstances and situations do, “application of
the natural law varies greatly”. For instance, capital punishment may be morally necessary in a
primitive society but needlessly barbaric in a society with secure laws and prisons and the moral
restrictions on warfare today, with its weapons of mass destruction, must be far stricter than
those in the past, so that’s why natural law is always relevant irrespective of any time zone.
 UNIT-III

3. Write short notes on:

A. Hans Kelsen’s Pure theory of Law
B. Discuss Austin’s definition of law as “trilogy of sovereign, command and
section”.

Answer:

The idea of a Pure Theory of law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (1881-1973). Kelsen began his long career as a legal theorist at the
beginning of the 20th century. His theory stands at the same level and has a similar importance to
Austin theory. He developed his theory on law and made a great contribution to jurisprudence.
Positivism was redefined by Kelsen's pure principle and is part of analytic positivism and parcel.
He developed his theory on a theoretical and philosophical basis.
According to him, the weather of positivism was sown by natural lawyers like Stamler, not
positivist. Stambler invented the concept of purity. The concept that the law would be pure from
any other investigation such as sociological, political, historical, logical, etc. reflects the purity of
the law. The law will not be based on all those components, deprived, connected or mixed. Thus,
according to Kelsen, "the law will stand on its own.

Why the principle was proposed:-

According to Kelsen, laws are scattered in the society which creates ambiguity in the source of
the law. There is a whole variety of laws and regulations. The laws have scattered which have
created the inequality of the class. There is a kind of chaos in the legal system. Therefore, Kelsen
went to develop his pure principle of law to achieve uniformity.

Key Features of Kelsen's Pure Theory of law:

 Law as Science: Kelsen tried to present a theory that could be attempted to change Law
in science, a theory that could be understood through logic.
  As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces his
theory as a theory of positive theory. This principle of positive law is then presented by
Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm, where all
other norms are related to each other either being inferior norms.

 Law "As it is": Kelsen emphasized that analysis should focus on the law as ‘it is’ in fact
laid down, not as ‘it ought to be’.

 Law and morality: Kelsen’s strict separation of law and morality is an integral part of his
pure theory of law.

 The theory of law should be uniform: According to Kelsen, the theory of law should be
applied at all times and in all places.

 Static Aspect of Law: Kelsen distinguished the static theory of law as the dynamic theory
of law. The static theory of law represented the law as a hierarchy of laws where
individual laws were related to each other either being inferior, the one to other, or
superior with respect to each other.

Critical Analysis:-

i. The theory of Kelsen suggests that Grunderm is the concept of the Constitution that ought
to be followed. Constitution of a country is a sociological, political document and
therefore Grundnorm is not pure.

ii. Kelsen also said that the law should be kept free from ethics/morality. A general question
should be raised here, whether it is possible to keep the law free of ethics/morality?
Kelsen insisted on the law to be effective and thus he accepted indirectly ethics as a part
of effectiveness.
 iii. Kelsen attempted to change the law into a science, a theory that could be understood
through logic, but on the other hand, he emphasized the validity of the Grundnorm to
“assumed”, rather than based on some "logic".
iv. Kelsen tried to find the law and legal norms in a middle realm between absolute ethical
values and social facts. Therefore, rejection of the relevance of ethics the idea makes the
legal science sterile and useless and rejects factual the nature of law separates it from
reality.

B) Discuss Austin’s definition of law as “trilogy of sovereign, command and sanction”.

Answer:
The theory of legal realism, like positivism, looks on law as the expression of the will of the state
but sees it as made through the medium of Courts. Law no doubt is the command of the
sovereign, but the sovereign to the realist is not the Parliament but the Court.  Austin says that
law is a command which obliges a person or persons to a course of conduct. It is laid down by a
political sovereign and enforceable by a sanction.

FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

I. Command
II. Sovereign, and
III. Sanction

a. COMMAND:
The first features of law is that it is a type of command. According to Austin Commands
are expressions of desire given by superiors to inferiors.
 Laws are general commands:
There are commands which are laws and which are not, Austin distinguishes law from
other commands by their generality. Laws are general commands, unlike commands
given on parade grounds and obeyed there then by the troops.
 b. SOVEREIGN:
According to Austin, a sovereign is any person or body of persons,  whom  the bulk of a
political society habitually obeys  and who does not himself habitually obeys, some other
persons or persons.

Characteristics of Sovereign:

 Source of Laws:
Sovereign is the source of law. Every law is set, by a sovereign persons or body of
persons.
 Source of Power:
Prof. Laski says that there are three implications of the definition of sovereignty
given by Austin. The state is a legal order in which there is a determinate
authority acting as the ultimate source of power.
 Indivisible Power:
The power of sovereign is indivisible. It cannot be divided. Accordingly to
Austin, there can only be one sovereign in the state. The totality of sovereign is
vested in one person or a body of persons.
 Habitual obedient by People:
The chief characteristic of sovereign lies in the power to exact habitual obedience
from the bulk of the member of the society.
c. SANCTION:
The term sanction is derived from Roman Law. According to Salmond "Sanction is the
instrument of coercion by which any system of imperative law is enforced. Physical force
is the sanction applied by the state in the administration of justice.

Criticism:
Austin's theory of law has been criticized on many grounds.

(i) Laws Before State:

According to Historical School, law is prior to and independent of political authority and
enforcement. A state enforces it because it is already law. It is not correct that it becomes law
because the state enforces it.
(ii) Gunman Law:

Some have criticized the positivist theory of law as a theory of gunman, as it makes no real
distinction between a law and the command of a bank-robber who points his gun at the bank
clerk and orders him to give him money.

This criticism over looks Austin's second requirement of law which requires that only that
command is law which is given by political superior or sovereign.

(iii) Generality of Law:

According to Austin, law is a general rule of conduct, but that is not practicable in every sphere
of law. A law in the sense of the Act of the legislature may be particular in the fullest sense of
the word. A Divorce Act is law even if it does not apply to all persons.

(iv) Promulgation:

According to Austin, law is a command and that has to be communicated to the people by whom
it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.

(v) Law as Command:

According to Austin, law is a command of the sovereign   but   the   greater part   of a   legal  
system consists of laws which neither command nor forbid things to be done e.g., right to vote.

(vi) Existence of Personal Commander:

The term command suggests the existence of a personal commander. In modern legal systems, it
is impossible to identify any commander in the personal sense.

(vii) Refusal of Precedents as Laws:

The bulk of the English law has been created by the decisions of the Court. To describe the
judges as delegates by the positivists is misleading.

(viii) Sanction:
The concept of sanction is also misleading as in modern democratic country, the sanction behind
law is not the force of the state but the willingness of the people to obey the same.

(ix) Sanction is not essential elements:

Sanction is not an essential element of law, as in civil law no such sanction is to be found.

(x) Disregard of ethical elements:

According to Salmond, Austin's theory of law is one-sided and inadequate. It disregards the
moral or ethical elements in law.

(xi) Not applicable to International Law:

Austin's definition of law cannot be applied to International law that is to say that International
Law is not an imperative law. The International law is not the command of any sovereign, yet it
is considered to be law by all concerned.

(xii) Not Applicable to constitutional law:

Austin's definition of law does not apply to constitutional law which cannot to called commands
of any sovereign. Constitutional law of a country defines the powers of various organs of the
state.

UNIT-IV
 4. Do you agree with the view that the current trend in the Indian SC is to rely more
on the sociological school of jurisprudence and less on positivist school. Examine the
statement in context of Roscoe’s Pound theory of social engineering.

Answer:

Roscoe Pound is considered to be the,” American Leader” in the field of Sociological

jurisprudence.  He comes from Harvard Law School and had a great academic favor. According
to him,” the end of law should be to satisfy a maximum of wants with minimum of friction.” He
defined law as containing the rules, principles, conceptions and standards of conduct and
decision as also the precepts and doctrines of professional rules of art. He considers law as a
means of a developed technique and treats jurisprudence as ‘social engineering’.

The main propositions of Roscoe Pound theory of Social Engineering are as under:-

i) Pound concentrates on the functional aspect of law:- Pound concentrates more on

the functional aspect of law, that is why some writers name has approach as “
functional school” the law is an ordering of conduct so as to make the goods of
existence and the means of satisfying claims go round as far as possible with the least
friction and waste. 

ii) The task of law is “Social Engineering”:- He says, “for the purpose of
understanding of law of today.  I am content with a picture of satisfying as much of
the whole body of human wants as we may with the least sacrifice. I am content to
think of law as a social institution to satisfy, social wants, the claims and demands
involved in the existence of civilized society.

iii) Social engineering means a balance between the competing interest in society: -
He lays down a method which a jurist should follow for ‘social engineering’. He
should study the actual social effects of legal institution and legal doctrines, study the
means of making legal rules effective sociological study in preparation of law-
making, study of judicial method, a sociological legal history and the importance of
reasonable and just solutions of individual cases.”  He himself enumerates the various
interests which are to be protected by the law.  He classifies them under three heads:

a) Private Interest: Such interest of physical integrity, reputation, freedom of volition

and freedom of conscience, these are safe-guarded by law of crimes and contracts.

b) Public Interest: Main public interests are preservation of the State, State as a
guardian of social interests such as Administer-Ration of trusts, charitable
endowments, protection of Natural environment, territorial waters, sea-shores,
Regulation of public employment and so on.

c) Social Interest: Preservation of peace, general health, preserving of Social

institutions such as religion, political and Economic institutions, general morals,
promotes Human personality, cultural and economic life. Pound tackled he
problem of interests in term as of balancing of individual and social interests. It is
through the instrumentality of law that these interests are sought to be balanced.
Justice Cardozo remarked that,” Pound attempted to emphasize the need for
judicial awareness of the social values and interests.”  Roscoe Pound regarded law
as a basic tool of social engineering. How in India the society and law are acting
and reacting upon each other can be adjudged from the following enactments
passed after India became Independent:-

 The special Marriage Act, 1954

 The Hindu Marriage Act, 1955
 The Hindu succession Act, 1956
 The Hindu Minority and guardianship Act, 1956
 The Hindu Adoptions and Maintenance Act, 1956
 The Dowry Prohibition Act, 1961
 Child Marriage Restraint (Amendment Act) 1978
 The Consumer Protection Act, 1986
 The S.C & S.T.(Prevention of Atrocities) Act, 1989
  Commission of Sati (Prevention) Act, 1987
 Bonded labor(Abolition) Act, 1976

POUND’S CONTRIBUTION:
Social Engineering stands on a practical and firm ground. He points out the responsibility of the
lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field of the
subject.
In the of Case- Animal And Environment Legal Defence Fund V. Union Of India And Others,
The Supreme Court applied the principles of Economic sustainability and environment
protection. If the villagers are not permitted fishing, then their livelihood shall be destroyed. If
they are permitted there will be a threat to the ecology. Hence, the Supreme Court ordered the
concerned forest authorities and the Board constituted to take necessary steps to protect the
environment. They shall watch the villagers and give suitable instructions to them. They shall be
educated on the importance of environment. The villagers should not enter in other areas accepts
to the lakes on which they are given fishing rights.

PRINCIPLE-The Supreme Court applied sociological approach in this case for the welfare of
tribal’s, whose source of livelihood is fishing. Not only in this case, but also in every
environmental case, the sociological approach of their lordship is crystal clear. Their lordships
often say that “law is a social engineering”. It may be stated that pound’s classification of
interests in his theory of social engineering cannot be said to be full- proof and one may find
some overlapping of interests here and there. Pound himself accepted that the various interests of
individuals in a society can only be broadly classified and they cannot be placed in water tight
compartments. Julius stone rejected the division of public interests and social interests on the
ground that in real sense they are all social interests. Pound tackled the problem of interest in
terms of balancing of individual and social interests. It is through the instrumentality of law that
these interests are sought to be balanced. As Justice Cardozo rightly remarked, “pound attempted
to emphasize the need for judicial awareness of the social values and interests”

Yes, I agree with the view that the current trend in the Supreme Court is to rely more on the
sociological school of jurisprudence and less on the positivist school because in several cases the
lawmaking is not the job of the judges, but of the legislature In other words, the court is resorting
more to judicial activism rather than judicial restraint, which is problematic. This is seen in its
recent judgment on ordering time limits to burst firecrackers on Diwali, which is a function of
the legislature; its judgment on linking rivers, for which there is no parliamentary legislation; and
in its unpredictable decisions in cases relating to wine shop on the national highway (T.K. Balu
v. State of karnatka).

According to the positivist theory laid down by jurists such as Jeremy Bentham and John Austin
in the 18th and 19th century, and continued by H.L.A Hart, Hans Kelsen and others in the 20th
century, law is to be distinguished from morality and religion. However bad a particular
legislation is, it is the law at the end of the day, provided it emanated from a competent
legislature (according to the earlier natural law theory, bad law was not law at all).

In positivist jurisprudence, the centre of gravity of the legal system is statutory law, i.e., law
made by the legislature. It holds that lawmaking is not the job of the judges, but of the
legislature. Hence, judges should be restrained and not activist in their approach. In view of the
well-established principle of separation of powers of the three organs of the state, judges should
not perform legislative or executive functions, and each organ of the state should remain within
its own domain, in order to avoid chaos. On the other hand, sociological jurisprudence, as
developed in Europe and the U.S. by jurists such as Rudolph Ritter von Ihering, Eugen Ehrlich,
Leon Duguit, Francois Geny, Roscoe Pound and Jerome New Frank, shifts the centre of gravity
of the legal system from statute to laws made by judges. It gives wide discretionary powers to
judges to make laws.

Sociological jurisprudence and natural law have the same problem. Kelsen argued that with
natural law, one can prove everything and nothing, and Bentham regarded natural law as
metaphysical nonsense. Similar criticisms can be made of sociological jurisprudence, which the
Supreme Court seems to be relying on. In other words, the court can lay down anything as law
according to its own subjective notions.

Positivist jurisprudence places heavy reliance on the literal rule of construction, because
departing from it would give a free handle to each judge to declare the law according to his own
notions, and this would result in legal anarchy. For example, the Second Judges Case (1993) and
Third Judges Case (1998), which created the collegium system of appointment of judges, were
not based on any provision in the Constitution. Article 124, which prescribes how Supreme
Court judges are to be appointed, does not talk of any collegium system. Yet, it is the collegium
which decides the appointment of judges, despite the founding fathers of the Constitution not
envisaging the same anywhere. In fact, despite the unanimous will of Parliament in favor of the
National Judicial Appointments Commission (NJAC), the Supreme Court declared the NJAC
Act to be unconstitutional on the grounds that it would affect the judiciary’s independence.

In recent times, the Supreme Court has increasingly adopted the sociological school of
jurisprudence in an aggressive manner. In a parliamentary democracy, the buck ultimately stops
with the citizens, who are represented by Members of Parliament. The Supreme Court was never
envisaged to perform the role of an unelected, third legislative chamber. Yet it is performing this
role not in exceptional circumstances, but in its everyday functioning. Of all the three organs of
the state, it is only the judiciary that can define the limits of all the three organs. This great power
must therefore be exercised with humility and self-restraint.

The usage of sociological jurisprudence can be justified in very rare circumstances, such as in the
Supreme Court’s decision to strike down Section 377 of the Indian Penal Code.

UNIT-V
 5. Critically examine the concept of justice. What is the implication of John Rawl’s
theory of justice for developing countries like India.

Answer:

The term justice has been derived from the Latin word ‘Jungere’ which means to bind or tie
together, thus in this way it can be stated as justice is the key ailment which ties the individuals
in the society together and harmonizes a balance between them and enhances human relation.

In the words of jurists-

Blackstone defines justice as a reservoir from where the concept of right, duty, and equity
evolves. According to Salmond, though every man wants to be righteous and just towards him,
he himself being ‘selfish’ by nature may not be reciprocal in responding justly.” According to
him, some kind of external force is necessary for maintaining an orderly society, and without
justice it is unthinkable.

Types of Justice:

Justice represents itself in kinds mainly:-

Social Justice

In the words of Chief Justice, P.B.Gajendragadkar- Social justice means ending all kind of
social inequalities and then provide equal opportunities to all. Commenting on social justice Mr.
M.C. Chagla, the former Chief Justice of the Bombay High court observed in the case of
Prakash Cotton Mills v. State of Bombay, 1957 that “we are no longer living in the laissez-faire.
It is true that social justice is imponderable and we asked not to introduce the principle of social
justice in constructing legislation that comes for interpretation before us. But in our opinion, no
economic, social or labor legislation can be considered by the court without applying the
principles of social justice in interpreting these related provisions of law.”

While in the case of State of Mysore v. Workers of Gold Mines 1958 II LLJ 479 (SC) the
Supreme Court observed that the concept of social justice is a living concept of revolutionary
impact. It gives substance to rule of law and meaning and significance to the idea of welfare of
the state. Thus, the concept of social justice aims to uplift the underprivileged section without
unduly and unreasonably affecting the interests of the upper section of the society. The concept
of social justice finds its expression in Articles 14(equality before law), 15(prohibition of
discrimination on the grounds of religion, race, caste, sex or place of birth), 16(equality of
opportunity in matters of public employment) and 39 (b) and (c) [(b) ownership and control of
the material resources and its equal distribution, (c) operation of the economic system not
resulting to the concentration of wealth and means of production to the common detriment], of
the constitution of India.

It also determines the concept of Processual Justice based on natural law which is the very basis
of not only substantive law but also the remedial justice. Legal maxims like nemo judex in
propria cause (no one can be a judge in his own case); audi altrem partem (here the other side or
party) plays a vital role.

Economic Justice:

It demands that all citizens should have adequate opportunities to earn their livelihood and get
equal pay for equal work, which could substantially help them in fulfilling their basic needs.
From financial inclusion to better health care the state government should create opportunities
for them by generating employment opportunities, following MNREGA, RSBY and so on. No
person or group of person should indulge themselves in exploitation and be exploited. There
must be a fair and just equitable distribution of wealth and resources, and the gap between rich
and poor should get abridged.

Political Justice:

It means granting of equal political rights and opportunities to all citizens to take part in the
administration of the country. The legality of the right to vote and contest election free and fairly.

Legal Justice

It has two dimensions as the formulation of just laws and then to do justice according to it. While
making laws, the will of the rulers must not be used on ruled. Laws should be based on public
opinion and public needs considering the core of social values, morality and the concept of just
and unjust must be considered. It simply means rule of law and not the rule of person. Objective
due dispensation of justice by the courts of law is an essential ingredient of legal justice.
Administration of Justice:

The administration of justice in modern civilized societies has evolved through 4 stages:-

 Primitive stage- when society was primitive and private revenge and self-help were only
the remedies available to the wrongdoer, one could easily get the wrong redressed with
the help of his friends and relatives, ‘an eye for an eye, a tooth for a tooth and a limb for a
limb.’
 Elementary/Infant stage- it has been considered that law and state were at infantry level
during this stage, and the feeling of security as a responsibility by the state towards its
individual and his property was absent. It didn’t have the enforcing power through which
it could punish the wrongdoer.
 The growth of Administration of Justice- a change was about to witness where a sought
of tariff schedules were fixed for different kinds of injury and offenses. And up to that
time justice mold as private in nature without the compulsive force of the state.
 The modernization- it was the developmental stage where the state geared its authority
and took upon itself the responsibility of administrating justice and punishing the
wrongdoer using its force whenever necessary. This stage owes its origin and growth to
the gradual evolution of the state and its political power. And with its transformation,
private revenge and self-help got substituted by the administration of criminal and civil
justice through law courts.

Concept

According to Salmond “Men being what they are, each being keen to see his own interest and
passionate to follow it’s society can exist only under the shelter of the State, and the law and
justice of the state is a permanent and necessary condition of peace order and civilization.”

Driving from the words of Salmond it is clear that administration of justice means justice
according to law. Physical force of the state is the sole or exclusive factor for a sound
administration.

Administration of justice is the firmest pillar of government, and granting justice is said to be the
ultimate end of law and the goal of society, which the judges of the courts have been pouring
into law with new variants of justice in the form of contemporary values and need-based rights
like freedom, liberty, dignity, equality and social justice as ordained in the constitutional
document. Access to justice for the people is the foundation of the constitution. (State of
Haryana v. Darshna Devi)

Under the purview of administration of justice it is classified into two kinds:-

 Civil justice
Blackstone called it as ‘private wrong’. It has been defined as civil injuries where
violation or infringement of civil or legal rights of an individual is taken into
consideration. A civil case may result in an award of compensation or dismissal of the
case. In jurisprudential term, the right of justice is enforced through the administration of
civil justice which connotes enforcement and protection of rights as opposed to the
punishment of wrongs.
The rights to be enforced under it may either be primary rights or secondary rights.
Where the enforcement of Primary rights; is also called specific performance wherein the
defendant is compelled to do the very act which is agreed upon to be done. For instance,
payment of debt or to perform a contract or restore land or property wrongfully taken or
detained. It also connotes remedial rights under it, where the purpose may be either
imposition of a pecuniary penalty upon the wrongdoer; or providing for pecuniary
compensation to the plaintiff in respect of the damages which he has suffered from the
defendant’s wrongful act.
And on the other hand is the Sanctioning rights; where the right to receive pecuniary
compensation or damages from wrongdoer may be of two kinds:-
(i) restitution- here the defendant is compelled to give up or restore the pecuniary
value or some benefit which he has wrongfully obtained.
(ii) The penal redress, where it’s not only restoration of all benefits which the
wrongdoer has achieved through his wrongful acts, but also a full redress for the
plaintiff loses.
Section 9 of the Civil Procedure Code, 1908 defines a civil suit. The civil courts in
India have the power to try all suits of civil nature excepting those the cognizance of
 which is expressly or impliedly barred. These courts can grant declaratory, prohibitory
and momentary reliefs.

 Criminal Justice
Blackstone stated it as ‘public wrong’. The main purpose of administration of criminal
justice has always been to punish the offender, while in certain general exceptional cases
the accused may get acquitted. The nature of the violation of public rights and duties
which affects the community as a whole is called a crime and a criminal proceeding
results in applying on punishment varying from sentence of death to a mere fine or
binding over the lawbreaker to keep the peace or his release on probation after
admonition. Under this, the magistrate has to decide the guilt of the accused on the basis
of the evidence before him.

The implication of John Rawl’s theory of Justice for developing countries like India are as
follows:-

The Indian Constitution was framed much before the coming of the book ‘The Theory of Justice’
but it seems as if there is some co-relation between the two. In fact, the very two principles of
justice as preferred by Rawls seem to completely fit in the Indian Constitution. It may be that
Rawls got influenced by the Indian Constitution but the way in which various Fundamental
Rights have been interpreted by the Supreme Court of India in the latter stages seems to reflect
the ideas of Rawls. Interpretation of Art 14, 15, 16 and 21 shows the influence of Rawlsian’s
approach.

The first principle of justice as propounded by Rawls has its influence on the interpretation of
Art. 14 in the case of Re Special Courts Bill, wherein Chandrachur, J. Observed: “The
underlining principle of the guarantee of Art.14 that all persons similarly circumstanced should
be treated alike both in privileges conferred and liabilities imposed.” Art.14 does not mean that
all laws must be general in character or that same law should apply to all persons or that every
law must have universal application, for all persons are not by nature, attainment and
circumstances, in the same positions. The State can treat different persons differently if
circumstances justify such treatment. In fact, identical treatment in unequal circumstances would
amount to inequality. The legislature must possess power to group persons, objects and
transactions with a view to attain specific aims. So, a reasonable classification is not permitted
but necessary if society is to progress.

Class legislation is that which makes an improper discrimination by conferring particular

privileges upon a class of person arbitrarily selected. And no reasonable distinction can be found
justifying the inclusion of one or exclusion of other from such privilege. While Art.14 forbids
class legislation, it permits reasonable classification of persons, objects and transaction by the
legislature for the purpose of achieving specific ends as was held in State of A.P. v. N.R.Reddy.

In E.P.Royappa v. State of Tamil Nadu, the Supreme Court challenged the traditional concept of
equality which was based on reasonable classification and has laid down a new concept of
equality. Bhagwati, J., delivering the judgment on behalf of himself, Chandachur and Krishna
Iyer, JJ. Propounded the new concept of equality in the following words, “Equality is a dynamic
concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ with
traditional and doctrinaire limits. From a positivistic point of view, equality is antithesis to
arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to the rule of law
in a republic while the other, to the whim and caprice of an absolute Monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law and therefore violative of Art.14.”

The word ‘personal liberty’ under Article 21 if interpreted widely is capable of including the
rights mentioned in Article 19. But in Gopalan Case, the Supreme Court took a very literal view
and interpreted these words very narrowly. The Court took the view that since the word ‘liberty’
is qualified by the word ‘personal’ which is narrower concept and it does not include all that is
implied in the term ‘liberty’. It means nothing more than the liberty of the physical body-
freedom from arrest and detention from false imprisonment or wrongful confinement. In
Gopalan case, ‘personal liberty’ was said to mean only liberty relating to, or concerning the
person or body of the individual and in this sense it was antithesis or physical restraint or
coercion. It was further limited to freedom from punitive and preventive detention.

This restrictive interpretation of the expression ‘personal liberty’ in Gopalan Case has not been
followed by the Supreme Court in its later decisions. In Kharak Singh’s case, it was held that
‘personal liberty’ was not only limited to only limited to bodily restraint or confinement to prison
only, but was used as a compendious term including within itself all the varieties of rights which
go to make up the personal liberty of a man other than those dealt with in Article 19(1). In other
words, while Article 19(1) deals with particular species and attributes of that freedom. Finally in
Maneka Gandhi v. Union of India, the Supreme Court has not only overruled Gopalan’s case
but has widened the scope of the words ‘personal liberty’ considerably. Bhagwati, J observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty to man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.”

The correct way of interpreting the provisions conferring fundamental rights, the court observed:

The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights
rather than to attenuate their meaning and content by a process of judicial construction. The
Court lays down great stress on the procedural safeguards. The procedure must satisfy the
requirement of natural justice, i.e., it must be just, fair and reasonable.

Equal opportunity of employment in offices under Article 16(4):

The scope and extent of Article 16(4) has been examined thoroughly by the Supreme Court in
the historic case of Indira Sawhney v. Union of India, popularly known as the Mandal Case. The
facts of the case were as follows. On January 1, 1979 the Government headed by the Prime
Minister Sri Morarji Desai appointed the 2nd Backward Class Commission under Article 340 of
the constitution under the chairmanship of Shri B.P. Mandal to investigate the socially and
educationally backward classes within the territory of India and recommend steps to be taken for
their advancement including desirability for making provisions for reservation of seats for them
in Government jobs. The commission submitted its report in December 1980. It had identified as
many as 3743 castes as socially and educationally backward classes and recommended for
reservation of 27% Government jobs for them.

The second principle of justice as recommended by John Rawls is clearly reflected in the Mandal
case where social and economic inequalities are to be arranged so that:

(a) They are to be of the greatest benefit to the least-advantaged members of society (the
difference principle).
(b) Offices and positions must be open to everyone under conditions of fair equality of
opportunity.

Reservations in the jobs and educational institutions clearly show a reflection of Rawlsian
approach. It is a true fact that all persons do not have same social and economic background.
Some may have been least advantaged members of the society. In the Mandal case the
reservations tends to give benefit to the least advantaged members of the society.

Another important pointed which is to be noted is that the offices and positions should be open to
everyone under conditions of “fair equality of opportunity.” Therefore, offices and positions
must to open to all only when there is fair equality among those who are competing. Not all
members are equally placed by nature. Some are fortunate enough to be born in highly educated
background. So the question arises as to whether it is fair to treat them equally and evaluate them
with the same stick, of course, not. People who are not equally placed should not be treated in
the same manner. Lastly it can be concluded that the Theory of Justice as propounded by John
Rawls has shown the mirror of as what exactly is the concept of justice. Though it is difficult to
define justice in clear terms but Rawls has more or less has been successful in defining justice.