Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )

Email : abhishekyadav.srcc@gmail.com

CAUTION : This document does not

cover all the topics in the syllabus (due
to shortage of time) , nevertheless the
topics covered have been prepared
comprehensively from a variety of
sources .

Topics covered :

• Major Legal Systems

• Sources of Law
• Legal Schools/Theories

Rest of the topics can be covered from

Case Material or any other reference
material (A.K. Jain).
{ Hint : I think it would be sufficient to
not make you go through the trauma of
this subject ever again. }

I have tried my best to make it as

simplified as possible.
Hope it helps you !!
Regards: Abhishek Yadav
(Student , CLC)

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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
MAJOR LEGAL SYSTEMS Similarities with Romano-Germanic Family :
I. Influence of Christian morality & Renaissance –
There are 3 major legal systems: the philosophical teachings gave prominence to
individualism, liberalism , personal rights.
• ROMANO-GERMANIC Family II. Shared vision of justice.
• COMMON LAW Family III. Expansion throughout the world via
• SOCIALIST LAW Family colonisation or reception.

ROMANO GERMANIC Family :

• Legal science has been developed on the basis
of Roman jus civile (civil law/law of land).
• Laws = rules of conduct—linked to idea of
justice and morality.
• Law has evolved for historical reasons, as a
private law—to regulate pvt relations.
• Founded by scholarly effort of Euro.Universities
• Legislature plays important role in making laws.
• Vast penetration due to colonisation efforts and
reception by other countries.
• Actual application and adm. of law was left on
legal practitioners (and not scholars).
COMMON LAW Family :
Different from Romano Germanic family :
I. Formed primarily by judges—who had to
resolve specific disputes..
II. seeks to provide solution to trial, rather than a
general rule of conduct.
III. it is essentially a public law
IV. Learning of Romanist (based on jus civile)
played a minor role in develop. of Common Law
– which is public law issuing from procedure.
V. Origin from Royal British Power—to est peace.
SOCIALIST LAW Family :
Such countries formerly belonged to the Romano
Germanic Family . Hence Similarities :
I. Law is perceived as rule of conduct
II. Scholarly efforts--Product of legal science
developed on the basis of roman law by
Universities.
III. Retains the divisions of law & legal terminology
of Roman law.
IV. Source —revolutionary work of Legislature
which repre. the popular will guided by
Communist Party.
Differences :
I. Socialist Law is revolutionary in nature, rather
than ‘static nature’ of Romano-Germanic Law.
II. Object of Socialist Law is—to create condition of
new social order—in which the very concept of
state and law will disappear.
III. Originated in 1917 Russian Revolution(USSR).
IV. Now, all law has become public law as the pvt
law has lost its imp.

COMMON LAW SUSTANTIVE/STATUTORY

LAW (Civil Law—Romano
Germanic )

--judge made --made by legislature

--based on judicial --based on legislations and
decisions , precedents statutes.
-- uncodified (Tort) --codified
--here for the lawyer, --here for the lawyer, the
the foundation of law foundation for law is ‘text
is ‘case’ ie. Statute’ .

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com

SOURCES OF LAW
Salmond classified into 2 :
Legal/Formal Sources Historical/Material Need of Delegated/Subor. Legislations:
recognised by law not recognised by law • Want of time: parliament is too occupied with
are authoritative unauthoritative matters of public policy and national imp.
Eg: constitution, Eg: legal writings , • Dynamism of Society: things have become very
statutes, precedents, juristic opinions complicated, need of new rules.
customs recognised by • Emergency Situation: during this period
law ‘executive’ is give power to make laws.
• Local matters
Sources of law are :
• Constitution ADVANTAGES of Legislations:
• Legislations I. Certainty and Precision
II. Instrument of legal reform: destructive and
• Precedents
reformative agent ; dynamic (to meet the needs
• Customs
of the present situation—Dowry Proh. Act , Env.
Such sources differ in different countries:
Protection Act )
--Common Law Family: depends on constitution,
III. Conforms to natural justice: since laws are
precedents & legislations (INDIA)
known before they are enforced.
--Civil Law Family: depends on legislations,
customary law and treaties .
PRECEDENTS :
Acc to Oxford Dictionary : ‘’Precedent—is previous
CONSTITUTION :
instance or case which may be taken as an example
• Ultimate source ; Fundamental law of India
of rule for subsequent cases of similar
• Source of all rights (FR) and duties(FD)
nature/circumstances.’’
• Binding on all – any violation—court action
Every developed legal system possesses a judicial
LEGISLATION : organ—whose main function is to adjudicate the
It is a source of law in the declaration of rules by a rights and obligations of the citizens.
competent authority (Parliament/State Legi.). {Customs—Legislation—Creative role of judges}
The most important and biggest source of law.
Legislation—2 types : Judges play an imp role in development of the law.
Supreme Legislation Subordinate/Delegated For instance, English Legal System—reliance on the
-- laws made by the --laws made by any decision of the judges.
sovereign authority other authority (than • INDUCTIVE Method: Before deciding a case,
itself. (In India, the supreme authority), judges look into previously decided cases of
Parliament is supreme) by powers delegated by similar nature—deduce general rules—apply
the sovereign authority. them to the case before them .
--Eg: Parliament laws, • DEDUCTIVE Method : judges decide case acc to
President’s ordinance. --Eg: rules&regul. by the the law laid down in the code. (Civil Law Family)
Universities, Govt Dept.
--cannot delegate ,Municipalities. TYPES :
important legislative -- Types: Authoritative Precedents Persuasive Precedents
functions a) Autonomous Laws: --Judges ‘must follow’ --Judges ‘may follow’ ,
made by the group of whether they agree with as they are not bound
--No legal limitations individuals/body . Like it or not. to do so.
upon its power Railways, University. --No discretion of judge -- Discretion of judge.
(however, it is subject to b) Judicial Laws: --Eg: Decision of SC must --Eg: Decision by Delhi
some constitutional made by the judicature be followed by all lower HC may be used by
restrictions) like : SC and HCs. courts. Madras HC.
c) Local Laws: powers
given to local bodies—
Zila Parishad, Panchayat.
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
EVOLUTION :
• The ancient text like Mahabharata suggest
‘’that path is right which has been followed by
the virtuous men’’—shows the theory of
precedent . However, there is no specific
evidence of its usage.
• Medieval times: absence of well organised
judicial system – no evidence of theory of
precedent.
• British Rule : doctrine of precedents took its
birth . Privy Council was set up as the final
appellate tribunal. Its decisions were binding on
all the courts in India (presidency courts, HCs) --
this introduced uniformity and certainty of law.
• Indian Constitution,1950 : Privy council and
Federal Court ceased. New judicial system was
set up—Dist Court < HC< SC .
The decision of the HC is binding on all the
subordinate courts and tribunals under its
jurisdiction.
 However, decision of one HC is not binding on
the other HC. (‘Persuasive Authority’)
The law declared (ration decidendi + obiter
dictum) by the SC is binding on ‘all courts’ in the
territory of India (Article 141).
SC in the case Vasudeo v. State of Maharashtra
clarified that ‘ratio decidendi’ and ‘obiter dictum’ is
binding for lower courts
The earlier decisions of SC command great
respect . In normal situation, the judgement
pronounced shall be final.
EXCEPTION: in certain cases, SC is not bound by
its own decisions( i.e the ‘doctrine of stare decisis’
is not applicable to SC) in case the earlier decision is
detrimental to public rights/welfare at large – as
stated by SC in Sajjan Singh v. State of rajasthan.
MERITS (of the doctrine of precedents) :
a) It shows respect for opinions of our ancestors:
Eminent jurist like Coke and Blackstone have
supported the doctrine.
b) Precedents are based on customs and hence
should be followed.
c) Matter of great convenience : matter once
decided should not be subject to re-argument.
It will save time and avoid delays.
d) Precedents bring certainty to law : fresh
decisions everytime—different opinions—
uncertainty – bad legal system.
e) Certainty ,Predictability and Continuity of law:
helps people to decide how the court is going to
react against a particular offence.
f) Bring flexibility in law : judges mould the law
acc to changed conditions; at the same time
helps check any arbitrary decision.
 Eg: Right to property as FRlater, ... as
a legal right (held in Minerva Mills case)
g) More practical: since it is based on the actual
cases handled by the judge—experience.
h) Helps Judges avoid miscarriage of justice: acts
as a guide to judges—prevent prejudice and
partiality – as precedents are binding.
DEMERITS :
a) Possibility of overlooking the authorities:
increasing no. of cases—difficult to trace out all
relevant authorities.
b) It is based on the subjectivity of Judge – what he
considers as material facts in earlier case.
c) Conflicting decisions of Superior tribunal(SC) :
here the lower court has to choose between
any of the 2 conflicting opinions – subjectivity
d) Development of law solely depend upon
incidents of litigation : sometimes important
question of law remain unadjudicated.
e) Sometimes extremely erroneous decision is est
as law bcos it is not brought before SC
‘APPLICATION’ OF DOCTRINE OF PRECEDENTS :
Doctrine of Precedent pre-supposes the existence
of hierarchy of courts.
To understand the extent to which the courts are
bound by previous decisions, it is imp to understand
what actually constitutes a decision :
• Ratio Decidendi :. It is a rule of
law/principles based on material facts, upon
which decision is founded.
• Res Judicata : what the case decides
between the parties. This is not subject to
further dispute.
The authority of a decision as precedent lies in its
‘Ratio Decidendi’  There are cases which involve
questions which can be answered on the basis of
‘principles’—which are deduced by separating
material facts from immaterial elements. And as a
result—the principle that comes out can also be
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com

applied to other similar cases also. This principle is ‘Stare Decisis’ :

called ‘ratio decidendi’. • In India, this doctrine was introduced by the
• In‘’Donoghue v. Stevenson’’, the ratio decidendi British Legal System.
was that it exploded the doctrine of privity of • It means ‘’let the decision stand in its rightful
contract and held that manufacturer is liable to place’’. When the decision contains a new
consumer for his negligence in manufacturing principle (rule of law), it is binding on all lower
the goods(which can’t be inspected by the courts and has persuasive authority on
retailer) . Plaintiff was entitled for damages for equivalent courts. This rule is based on
the decomposed snail found inside beer bottle expediency and public policy.
which was opaque. • It pre-supposes the hierarchy of courts.
o SC > HC > DC (article 141) ; HC > DC
o HC is not bound by other HC
’Obiter Dictum’  the issue which needs no o SC is not bound by its decision
determination of general principles , are answered o Division Bench > Single Judge Bench
on the basis of circumstances of particular case.
Goodheart defines O.D. as—‘’ conclusions based on
the fact, the existence of which has not been Stare Decisis Res Judicata
determined by the court.’’  applies to the rule of applies to the decision
law in a case. in dispute.
In the course of judgement , judge may make binds everyone in binds only the parties
certain observation which are not relevant to the future ,for case with to the present case.
issue before him—Eg: he may cite some similar material facts.
hypothetical situation. Such have persuasive applies to decisions of applies to decision of
authority and are not binding on the courts , higher courts all courts.
however the courts may seek help using them. comes into operation ....after the lapse of
immediately after the period of the time limit
In S.R. Bommai v. Union of India, the SC held that decision is handed down for appeal.
secularism is a part of basic structure of the by the higher court.
Constitution (‘’ratio decidendi’’).
Also, Justice Ahmadi opined that rights contained in Overruling :
Ar 15,16, 25 are a part of basic structure. This was Refers to the action of the superior court in
not directly related to the case, hence was ‘’obiter upsetting the ratio decidendi laid down by the lower
dicta’’. court in some other case. However, it does not
affect the previous decision(‘res judicata’) so that
CREATIVE ROLE Judge has to find out ‘ratio the parties continue to be bound . Such overruling
decidendi’ . It is a very complex task of which apply for future decisions are called
distinguishing between ‘ratio decidendi’ (reason ‘’prospective overrulings’’.
which led the court to reach a decision) and ‘obiter
• SC in Golaknath v. State of Punjab, laid down
dictum’. There may be cases of 1st impression—
the doctrine of ‘prospective overruling’’.
where there is no provision in statute law or
{NOTE : SC of America highlighted the dangers in
precedents—considers social ideals,morals, natural
giving retrospective effects to overruling to the
justice etc.
previous wrong decisions by the courts. }
• It is ratio decidendi (not obiter dictum) that has
binding effect as a precedent.
• It is for the judge to determine ratio decidendi
and apply it to the case. (flexibility)
• Precedents have been compared with wine—
which improves with age, but only upto a
certain period of time , after which it starts
loosing its relevance.

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
LEGAL THEORIES/SCHOOLS
OF LAW
HISTORICAL SCHOOL
Historical approach to law derived its inspiration
from the Roman Law. This was under the era of
nationalism under the leadership of Nepoleon—
spirit of individualism pervaded the legal thought.
New classes (4th estate—labour class) grew.
## After restoration of national govt (after
Nepoleon) – problem of ‘’codification’’ drew
attention.
SAVIGNY :
• Teacher at University of Berlin.
• He attacked the idea of codification in Germany,
as he knew the defects of contemporary codes.
His view point :
• Law is matter of unconscious and organic
growth –hence law is found , not made :
Acc to him, ‘’Law is a product of people’s life—it
is a manifestation of its spirit. Law has its source
in the general consciousness (VOLKSGEIST) of
the people ‘’.
• Law in not universal in its application and
validity. Law has a national character, just like
‘language’ and ‘constitution’ in all societies are
natural manifestation of popular life and by no
means product of man’s free will. Hence, law
develops with the life of the people. Law,
language, custom and govt have no separate
existence. What binds them into whole is
common conviction of the people.
• Early development of law is spontaneous , and
later it is developed by Jurists: During the earlier
stages, law develops spontaneously due to
‘internal necessity’{Political Element}.
However, after a stage it is enriched by the
Lawyers who remain as an organ of popular
consciousness. {Technical Element} . Last stage
is Legislation i.e. lawyers hold imp role than the
legislators.
As laws grow into complexity, the common
consciousness is represented by lawyer and
jurists – who formulate legal principles.
• He was against the modern codification of law
in Austria and France. Rather there was a need
for scientific study of a legal system and its
continuous development, by which each
generation adapt the law to its needs.
• Savigny’s 2 convictions : (a) legal science is
better than legal reform ; (b)popular
consciousness is source of all law.
CRISTICISM :
i. Inconsistency in the theory: on one hand he
asserted that origin of law is in the popular
consciousness , and on the other hand, he
argued that some principles of Roman Law were
universal in application.
ii. ‘Volksgeist’ not the exclusive source of law:
sometimes as alien legal system can be
successfully adapted in other country (India).
Also at times, a single person influences the
legal system of the country, which cannot be
said to represent the popular consciousness.
iii. Overlooked factors that influence the law: many
rules, in modern times, are a result of a
conscious effort of a selective group—like laws
relating to Trade Unions , are a result of long
and violent struggle between conflicting
interests within the society.
iv. Juristic Pessimism : Acc to Pound , Savigny
encouraged ‘juristic pessimism’ i.e. legislations
must accord popular consciousness. It
discouraged creative activity of jurists and legal
reform .
CONTRIBUTIONS:
i. Considered to be the greatest jurist of 19th Cent.
ii. His theory came as a reaction against the 18th
century advocates of ‘rationalism and Principle
of Natural law’ – who tried to est a legal theory
of universal application without consideration
of time, place and history of law.
iii. He made the juristic world conscious of the
iceberg quality of law—with its present pinnacle
concealing the 9/10th of its past (Volksgeist).
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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
iv. Volksgeist Theory—is apt of the fact that
nation’s legal system is greatly influenced by the
culture and character of the people
v. His influence in Germany was great and
codification was delayed for a long time.
vi. He sowed the seeds for Evolutionary and
Sociologists Theories – hence was called as
‘Darwinian before Darwin’ and ‘Sociologist
before Sociologists’.
vii. Credited for the powerful dev of the study of
legal history.
viii. Inspired Maine , Lord Bryce etc in England to do
studies of various legal systems on historical
lines.
ix. Responsible for the emphasis placed more
recently upon a ‘people’s feeling of right’
against the dead letter of statute or precedent.
SOCIOLOGICAL SCHOOL
’’Sociological Jurisprudence’’ is a functional study
of law to resolve immediate problems and
conflicting interests of the society, with tools and
techniques(judicial decisions and adm.), which
promote harmony and balance of interest in
society.
’Sociology of Law’’ is descriptive study of law and
legal institutions of the society ( i.e. just theoretical
in nature.)
• This school emerged as a result of synthesis of
various juristic opinions. It considers law as a
social phenomenon—relationship of law with
other contemporary social institutions.
• It insists that jurists should focus their attention
on social purposes and interests served by law ,
rather than on individuals and their abstract
rights i.e. more emphasis on functional aspect
of law rather than abstract content.
• OBJECTIVE—to study the effect of law and
society on each other. Law is concerned with
effect on society. And therefore, it wud be
erroneous to treat law as a –Command, God’s
will or People’s conscience.
• NATURE : (a) it discards rigid legal
Positivism(analytical positivism) which relied
on the fact that law is solely based on coercive
power of the State and against the ideals of
morality and justice.
(b) it opposed the ‘Historical School’ for its
undue insistence on past customs, traditions
and values—paved growth of law—led to
narrow nationalism in Germany .
BACKDROP : Customs governed society
Supremacy of Church(Priests)  State dominance
Renaissance and Legal Philosophers grew(
individual liberties and rights) Despotism(Nazism)
 Finally need to review to balance btw State,
Welfare of society and individual interest.
ROSCOE POUND (1870-1964)
Was a judge in Supreme Court of Nebraska. Also
was a professor of jurisprudence at Harvard Law
School. Most influential jurist to develop American
Sociological Juris.
I. Emphasis on Functional Aspect of the Law :
Acc to him, the ‘end’ of the law should be to
satisfy maximum wants with minimum friction.
He laid emphasis on functional aspect of law
and his approach has been termed as
‘functional school’.
II. The task of law is ‘Social Engineering’ : here
S.E. means a ‘’balance’’ between the competing
interests of the society.
And the Jurists, Courts and Legislators are
responsible for its commission—they must
study the effects of laws on the ‘society as a
whole’.
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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
Various interests which law seeks to protect are
classified into 3:
a. PRIVATE Interests: include
• individuals interest of
personality (Eg: personal
integrity, reputation , freedom
of conscience ) – protected by
Law of Torts , Contract , Crime
• Interests of domestic relations
(Eg:marital , parental)
• Interests of property,
succession , inheritance
b. PUBLIC Interests : include
• Preservation of State
• State as a guardian of social
interests – public employment
c. SOCIAL Interests : include
• Preservation of general peace
and health
• Preservation of social institution
• Preservation of morality
• Protection to economically
weaker sections of the society.
III. Jural Postulates of Pound : to evaluate the
conflicting interests in due order of priority,
there are certain basic ‘assumptions’ called Jural
postulates of the society. These are :
a. In a civilised society , men must
assume... that others will not commit
any intentional aggression on them.
b. ... that they can control what they have,
use what they have created on own .
c. .... that others act in good faith
d. .... that others will act with due care
Pound said-- that these ‘’postulates’’ are ‘NOT
absolute’ but they have a relative value. They are
sort of ideal standards which law should pursue in
society. These are dynamic in nature—keep
evolving.
CONTRIBUTIONS :
 His contribution to juri is great . He avoided all
sort of exaggeration—speaks of value but said they
are relative , emphasised on social engineering
while maintaining the balance.
Practical theory-- points out the importance of :
studying the actual legal functioning, social research
for good law making .
he points out responsibilities of lawyers, judge
and jurists.
CRITICISM :
• Use of the word ‘engineering’ is criticised as it
equated the society to factory like
mechanism(suggest the mechanical application
of law). Law is a social process rather than the
result of applied engineering.
Dynamic feature of law in undermined. (Society
is dynamic , while factory is static)
• ‘Theory of interests’ has been criticised as it has
no significance in the pluralistic socities where
there are linguistic, ethnic, religious minorities
with diverse interests. Harmonising their
interests in not an easy task to be performed by
courts.
• Value given to different interests changes with
the political and legal system : Eg— Liberal govt
focuses more on individual freedom and rights ,
as opposed to Totalitarian Govt which favours
interest of state.
THEORY OF ANALYTICAL- POSITIVISM
Positivist Movement started in 19th Century—as a
reaction against the ‘a priori’ methods of thinking .
Prevailing theories of ‘Natural Law’ shared the
feature of turning away from the realities of actual
law to discover principle of universal validity. This
could not satisfy the intelligentsia who believed in
the spirit of new scientific learning. Acc to them, the
natural law postulates were without foundation and
a result of extrapolation.
The term ‘positivism’ has many meanings as laid
down by Professor Hart :
• Laws are commands (like Austin said) because
the most important aspect of law is its relation
with the State.
• Not concerned with the past or future of law
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
• Law is ‘as it is actually laid’ (positum) , and not
what it ought to be. These two should be
separated for the purpose of identifying laws at
a given point of time . (Note: those who assert
‘law as it is’ do NOT deny the value of ‘law as it
ought to be’. )
Reason why this separation is desirable :
o Helps to identify law. As it would not be
possible for others to understand what
law is – is it the actual law , or is it the
law as it ought to be.
o Morality is a diffused idea. It is wider
than Law. Hence the boundaries of law
should be made clear.
o Difference in application of formal and
moral criteria.
• The analysis of law : is worth pursuing ; should
be distinct from sociological and historical
inquiries .
• Decisions can be logically deduced from
predetermined rules.
They agree that judges make laws. It is through the
incorporation in precedents and statutes , that the
quality if law is enhanced. And quality of law follows
irrespective of morality i.e. even if an ‘unjust’
proposition is passed as law , it shall remain to be
valid .
{However, Natural Law supporter believe that a
proposition is ‘law’ because it not only satisfy
formal requirement but also has a morality element.
Hence , immoral rule is not law. }
Austin
Topic can be covered from AK Jain (aka ‘dukki’)
given as Q1) . It covers the topic comprehensively.
However, if time permits, can be supplemented
with Case Material .
(Citing it here would have amounted to duplication.)
H.L.A Hart
He rejected Austin’s theory of analytical positivism
and expounded his legal theory based on the
relationship between law and society. In his book ,
Concept of Law , he criticised Austin’s Theory.
He believed in analytical approach , however, his
notion of law is altogether different from his
predecessors—he believed that law, morality and
coercion are related to social phenomena having
sociological implications.
Hart’s Conception of Law:
• Law is a system of 2 types of rules , the union of
which provides key to science of jurisprudence
(i.e. law takes birth from the union of these
rules) :
o Primary Rules
o Secondary Rules
a. Rejecting Austin’s theory that ‘law is a
command’ , Hart opined that
primary rules are duty imposing while
secondary rules confer power. And the
union of two, is the ‘’essence’’ of law.
b. Primary Rules are binding because of
popular acceptance—such as rules of
kinship, family sentiments. { 3 defects :
uncertainty , inefficiency , static character }
Secondary Rules enable the legislator to
modify their policies acc to the needs of the
society. They seek to remedy the defects of
primary rules.
c. In Primary rules, individuals are required
to do or abstain from doing certain acts,
whether they wish to do so or not (binding),
Secondary Rules confer public or private
powers which lead to creation of duties or
obligations.
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com

Hart’s -- Rules of Recognition :

The validity of law is to be tested on the basis of Distinction between Positive Law and Morality:
‘rule of recognition’ , similar to Austin’s concept of
Positive Law Morality/Natural Law
‘sovereign’ . However, it is not an extra-jural
rules for governance Principle of natural
hypothesis like Kelsen’s ‘groundnorm’ . of outward acts of rights and wrongs (i.e.
mankind. justice).
Acc to Hart, rule of recognition is the sole rule in the made and enforced unwritten law,
legal system whose binding force depends on- its by State. followed by people as
accepatance. eternal laws of divine
origin.
Eg: Enactment of British Queen in Parliament and
’Positivism’ is based ’Natural Law’ is based
Constitutional law in India  is rule of recognition
on the actual law (‘as it on ideal situation – what
i.e they are binding on legislators, officials, citizens is’) . It is realistic and is right and what is
and courts. scientific in its wrong. (as it ‘ ought to
interpretation. There is be ‘)
Hart’s conception of positivism is centred around no room for hypothesis.
following consideration :
a) He accepts law as a command (like Austin)
b) Believes that analysis of law , rather than mere
sociological and historical inquiries.
c) Judicial decisions were to be deduced from pre- PURE THEORY OF LAW: HANS KELSEN
determined rules without recourse to social
Kelsen served as Professor in University of Austria
aims, objectives, policy or morality.
and later in American universities.
d) Moral judgements cannot be defended by
• Described law as a ‘normative science’ rather
rational arguments, evidence or proof.
than a ‘natural science’.
e) Law actually laid down(positum) must be
• Kelsen’s theory was a theory of positive law
separated from law as ought to be.
based on normative order elimination all extra
legal and illegal elements from it—it should be
Hart’s views on Law and Morality :
free from ethics, politics, sociology, history etc
Unlike Austin and Kelsen, Hart asserted that there is
(though he did not deny the value of these
a necessity for law and morality to have certain
elements of natural law. Thus, morality is implicit in branches of knowledge, he just wanted law to
Hart’s positive law – as a union of primary and be clear of them)
secondary rules. As a member of society, • believed that a theory of law should be uniform
individuals are bound to abide these rules. and should be applicable at all times & places.
Hence, laws and morals are complementary as well • Theory of law should deal with law ‘actually’
as supplementary to each other.
laid down , and NOT as it ‘ought to be’—hence
• Morality is a necessary condition of the society,
and law should function to ensure it is not it is called ‘’Positive Law’’.
disintegrated • Acc to him, ‘Law’ and ‘State’ are same thing.
• However, he said that law’s function is a last Also there is no difference between ‘public and
line of defence , other attempts should come private law’.
from the society—via education, mass media. • He does not believe in existence of individual
• ‘Complementarity’ btw Laws and Morals : when rights , and asserts that ‘legal duties’ are the
individual morality begin to clash due to
essence of law.
changing norms of the society , laws are
enacted to lay down standards of behaviour. • Like Austin, he considers ‘sanction’ as an
essential element of law, but he prefers to call it

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
‘NORM’. Here, ‘Norm’ is a rule forbidding or
prescribing a certain behaviour.
 Legal order is the hierarchy of norms
having sanction i.e. law is a primary
norm which stipulates sanction.
 Jurisprudence is the study of these
norms which comprise legal sanction.
 (a)Moral Norm : ‘one shall not steal’ –
no punitive consequence
 (b)Legal Norm : ‘if one steals, he ought
to be punished by the court’—here
‘ought’ applies sanction to the violation
of law.
GROUNDNORM
• Kelsen’s pure theory of law is based on
pyramidical structure of hierarchy of norms
which derive their validity from the ‘basic norm’
, which he termed as GROUNDNORM.
• This groundnorm/basic norm determines the
content and give validity to other norms derived
from it.
• he asserted that groundnorm imparts validity
as long as the ‘total legal order’ remains
effective
• Kelsen recognised that groundnorm need not be
same in every legal order(State), but it must be
necessarily there – in the form of Constitution
(India) , or the Will of Dictator (during the era
of Musharraf in Pakistan, 2007)
{{{ Drawback: Just like Austin (sovereign), Kelsen’s
theory considers the ‘groundnorm’ to be the
starting point. However , he has no answer as to
where the groundnorm derived its validity. }}}
PYRAMID OF NORMS :
Groundnorm (apex)
Eg: Constitution in India
Superior Norm
Eg: Legislative Body
Subordinate Norm
Eg: Statute/Law
Kelsen considers legal science as a pyramid of
norms with Groundnorm at apex .
Subordinate norms are controlled by norms
superior to them in hierarchy.
Groundnorm is independent of any norm.
’Concretisation of Legal System’—process of one
norm deriving its power from its superior norm ,
until it reached the groundnorm. (by Kelsen)
Example : Statue/Law derives its validity from
Legislative body, which in turn derives its validity
from Constitution. ## However, there is no
answer to where the constitution derives its
validity, hence Constitution is a Groundnorm acc to
Kelsen’s theory.
CRITICISM :
• Pure theory is devoid of Sociological
Foundation: it excludes all references of social
facts and needs of the society.
• Lacks Practicality : theory is based on
hypothetical consideration without practicality.
It is not possible to divest laws from the
influence of political ideology and social needs.
He does not consider ‘justice’ and ‘morality’ as
essential attributes of law.
• No solution in case of conflicts arising out of
ideological differences .
• Kelsen’s assertion that all norms (except the
groundnorm) are pure has no logical basis—how
can subsequent norms be pure when they are
based on the groundnorm—which itself is based
on hypothesis/fiction.
• Kelsen gave no criteria by which the minimum
‘effectiveness’ is to be measured—he asserted
that groundnorm imparts validity as long as
the ‘total legal order’ remains effective –
(doesn’t hold good incase of Pakistan) .
However, effectiveness is not necessarily a pre-
condition for validity.
• Theory does not apply to revolutionary
situations where one assumes power by
dictatorship-- (Pakistan constitution overthrown
by the military rule -- does the constitution lose
its validity?? Theory gives no answer to it .)
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : abhishekyadav.srcc@gmail.com
CONTRIBUTION : despite the shortcomings,
Kelsen’s contribution cannot be ignored.
He attempted to break away from traditional
‘natural law’ theory and theory of ‘legal
positivism’ .
He asserted legal knowledge is free from
foreign elements – ethics, psychology ,
sociology etc.
He asserted that law and State are same. Law
is the will of the State.
Similarities : (AUSTIN and KELSEN )
i. Both opposed the natural law theory.
ii. Both recognised the distinction between
law as –‘it is’ and ‘ought to be’ .( Austin kept
‘ought’ outside the purview of law as it
lacked command of sovereign ; Kelsen
separated natural science from law because
the former is based on rules of cause and
effect which are not applicable for law)
iii. Divested moral, ideal or ethical elements
from law and wished to create ‘pure science
of law’ devoid of all moral and sociological
considerations.
iv. Consider sanction as an essential element of
law.
v.
subordinate to State. ; for Kelsen, the law
and State are same thing.
v. Austin’s legal approach was not specific. But
Kelsen developed legal order as a pyramid
of norms.
vi. For Austin, ‘customs’ are not laws as they
are not derived from the State/sovereign.
Kelsen recognise customs are norms which
take the shape of legal norms in the
subsequent course of time .
vii. Austin did not consider ‘international law’
as law , since it does not bound the State.
Kelsen regards international law as binding
on the State, as international org is superior
to the State (legal order).
viii. For Austin, ‘public law’ defines rights and
duties of the State for its subjects and the
‘Private Law’ defines rights and duties of
individuals. For Kelsen , there was no
distinction between ‘public law’ and ‘pvt
law’ .
ix. For Austin, law was subordinate to State.
For Kelsen, State is a unification of legal
order i.e. there is no dualism.
{NOTE : points 6, 7, 8 ,9  how Kelsen’s theory is
improvement upon Austin’s theory}

Differences : (AUSTIN and KELSEN )

i. Kelsen considered groundnorm to the
starting point to give validity to other
norms. Austin said the laws derive validity
from the State/Sovereign.
ii. Kelsen rejected the idea of ‘command’ as it
involves psychological and subjective
element. For Kelsen, legal theory should be
objective.
iii. Austin’s theory was static ; Kelsen’s theory
was dynamic.
iv. Austin considers existence of
State/Sovereign as a pre-condition for
existence of law . For Austin, law was

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