CLASS NOTES

AUSTIN
 Late 18thc - early 19th c – Rise of positive law theory
o diversification of society meant finding general principles were difficult
o reliance on meta principles doesn’t ensure a proper result, fair outcome, just system
and procedure, etc – rise of moral skepticism – what matters now is social fact
 “Law is the command of a sovereign which is enforced by sanction” – doesn’t have to be just
or fair or following an eternal principle or anything above what the sovereign says it is
 Who is a sovereign?
o Austin: a person who is habituated to giving commands/orders and has received
habitual obedience to his commands – does not follow commands – eg: an absolute
king – doesn’t really exist in modern legal systems – even in the past, rules of
succession have to be followed by an “absolute sovereign” – not habituated to
receiving obedience the minute you accede to the throne
o India – can’t identify “we the people” – collective sovereignty is meaningless – can’t
really apply this definition
 What is command? – to do or not to do certain things
o But law can be more than this – it can be facilitative (contract law), right-conferring –
all of these can’t be understood as commands of sovereign
o Hart – in a modern legal system with a complex system of laws, not all laws can be
commands
o criminal law in a crude way is the only one that fits the command model
 What is a sanction? – legal sanction flowing from disobedience – but all laws need not have
sanction
 Denies expressly any connection between law and morality – criticizes Blackstone – if you
argue that you didn’t follow a law because it was “unjust” the judge will hang you
 Descriptive idea of law – based on what he saw in society – unjust laws were being passed
and enforced – no matter how much you hate/detest it, it is law.
 exclusivist legal positivism – not looking at the content – simply look at whether it has been
passed
 Hart – this model is inapplicable and too simplistic
Positivism

 central tenet – sources thesis / conventionality thesis – the starting point of law is social
convention / social fact – all law is source-based and that source is society – law is a matter
of social reality – it is a social fact – given rise to by a social convention and society decides
what it wants as a law – all law arises from social fact – things that exist in society and what
we as a society decide to do – there is nothing beyond this – no overarching/meta principle - a
society can decide what it is that they want to do – looking beyond that is an act of fiction -
 second tenet – separability thesis – law and morals are separate – clear separation
between legal rules and moral rules
o accept that, as a historical coincidence, versions of morality have become law – there
might be a relationship between morality and law, but this is irrelevant
o cannot claim that morality is a necessary/sufficient condition for law
 validity of law is not judged based on its moral content, morality is not
necessary
 a rule is not law simply by virtue of it being moral – morality is not sufficient
 self-contained sect – full system – if you agree that human beings are reasonable, then you
need not look at anything except human society/condition – why go beyond – society decides
for itself what is just, fair and reasonable
 but don’t you need something beyond social reality, in order to ensure that certain things
don’t become law – what rules do you give to counter systems like colonization, slavery and
Nazi Germany? – aren’t you placing the minority in a perennial disadvantage – NLT could
make a claim based on fairness, justice and equality
 you might have criteria of judging the fairness of law within positive law itself – eg: unequal
laws are unfair as per Arts.14&15 – so don’t need to look beyond posited law – fair standards
can be posited into law
 in order to criticize a law as being unfair – a positivist would say that you can argue a law is
unfair, and this can even be because of extralegal reasons – but what you cannot say that an
unfair law is invalid and must not be followed – you can change the law but until you do you
must follow it
 start and end point of law – strictly within social convention
 HART
 social conventions – law is not born from a moral principle but from social conventions –
society might regard certain behaviour as wrong or right – some of these social conventions
get posited as law
 first kind of laws that come are the ones that govern human behaviour – primitive criminal
law – governing individual criminal behaviour – primary rules – tell people to do or not to
do things – all societies have this – eg: do not kill, do not steal, laws against hate speech –
guard against individual action – rudimentary legal system comes into being governing
people and their actions – slowly gets more complex and nuanced over time
 if a legal system exists only with primary rules, it’ll have three kinds of problems:
o static – how to change primary rules – no mechanism of changing rules
o interpretation – who interprets these primary rules
o inefficiency and uncertainty – how do you decide what constitutes a primary rule – in
terms of governance – if you have a diffused set of people, you need to determine
how the law is to be declared and administered – huge problem when society is larger
and more diverse
 secondary rules are required – rules about primary rules – not concerned with individual
action – implement primary rules, provide mechanism for bringing primary rules into force,
changing them, repealing them, etc. – rules for people enforcing primary rules – eg: rules for
courts, police, systems of governance
o rule of recognition – what to recognise as law, and what is not to be recognised as
law – procedure to create law, change law, recognise law – solves problems of
uncertainty by specifying how a rule is a primary rule; solves static as it gives you a
mechanism to change the rule
o this can be the Constitution, but other statutes as well
o rule of adjudication – procedure of courts, how they are to decide, what factors to
consider, how does a case start/progress/stages, how to categorise disputes – solves
problem of interpretation
o look at official action, not individual action – meant for officers, people acting on
behalf of legal systems, acting in their official capacity
  Hart – legal system is a union of primary and secondary rules – without either the system is
incomplete – becomes self-sustaining if it has both, with efficiency
 what is the kind of rule? is it governing individual or official action?

When does law create obligation? – distinguishes Hart into inclusive legal positivism

 what is the role of an individual in a legal system with primary and secondary rules?
 what becomes a legitimate or an illegitimate legal system? – all law claims legitimacy – from
an external POV, when someone who doesn’t know this legal system, an observer will only
see law as a social phenomenon, and explain what they see as something that generally
happens – this is an external POV of a legal system – that legal systems generally dictate
behaviour
 distinguish this from someone within the legal system – internal POV – this person also
observes the social phenomena, but he is part of the society which has posited this as law so
he can go one step further – he can say that this is an efficient/good way of managing traffic,
ensures safety – looks beyond the mechanics of the law, and go into the reason of why law
does what it does – this is the internal view point of law
 obliged v obligation
o oblige/d – external view point only captures this, that people are obliged to follow this
rule – can refer to a compulsion, something that you are mechanically required to do –
eg: attendance
o obligation – when you follow something because you know the reasons and accept the
rationale behind the rules – an internal view point gives right to obligations – eg:
traffic rules
 primary rules can just be something that oblige, but ideally they should also create
obligations – ideal is that people fully internalize the idea in following the law – this would
look at justness and reasonableness of the law, the level of general compliance, etc
 creation of obligation – internal, cannot be forced on people
 what kinds of laws create an obligation, more than a mere compulsion to follow?
o Eg: gunman – issues command, in Austinian model this is law, you are obliged to
give him your wallet – Hart says that the rational thing to do is to give your wallet,
but you will never say that the gunman created an obligation or a moral obligation
 o Eg: small taxpayer not paying tax – govt might not pursue this – but you still had an
obligation to pay tax, you chose not to pay
 Primary rules must always try to create an obligation as opposed to merely putting someone
in a position where they are obliged to do it – rules creating obligations and not commands –
benefits:
o people won’t try to break the law, because there is reason to follow it
o people who are forced to follow it will break the law at the earliest opportunity
o govt costs get lower – don’t need to enforce laws
 Secondary rules should always create obligations – it’s okay if ordinary citizens don’t know
the reasons for rules – but officers who have been enforced with carrying out rules, they
should know the reasons why this law exists – if they don’t, it allows them to do whatever
they want, legal system will collapse
 When can a legal system claim legitimate authority? – law claims legitimate authority
when it creates an obligation
 A legal system can go ahead even if primary rules are obliged, but the ideal is obligations –
but this is what we need to aim at – that officers act reasonably, and general population
should also see reasons, but it’s okay if they can’t, this is just something you should strive to
 But does having reasons lead to justice and fairness? – this is what Hart assumes – that
looking for reasons will ensure justness and fairness
 Situations in which you might take moral considerations into account – individual laws are
made by legislatures, as per social conventions – in application, in a vast majority of
situations you will simply mechanically apply the law to what is there, but there might be
certain situations when the law becomes insufficient to apply
 this is the penumbra of doubt – most cases don’t come within it, don’t lead to it, application
of law is certain – but in some cases the penumbra of doubt can enter into the mind of the
judge about the law not covering this, or not being applicable here, because the judge looks
for reasons as to why the law would apply and how it will apply
 things fall within penumbra of doubt in two ways – when there is a gap between society
and what the law says:
o problem of open-textured language – human language is indeterminate at some
points, there are limitations no matter how precisely or well you draft it – you do not
know what human language might mean – could lead to diff legal results
o the situation that has arisen now was not thought about when the law was made
 the person who is adjudicating a dispute that falls within the penumbra of doubt necessarily
has to look beyond the rules – a mere application of logic is insufficient – the judge may look
at certain standards beyond posited law – what is a fair outcome, what is required by law –
judge may be looking at certain moral standards and certain values – this can only happen in
a region of penumbra, and not even in all penumbral cases – judges are an exception, they are
legally trained, they may do this, and cannot do it in every case – but who decides when a
case falls within that penumbra? judge himself – trust/faith judges to do this right – this does
not take away from legal positivism – law is still based on social convention, no necessary
connection b/w law and morality, but at certain points of time in exception situations you
may have to look beyond it – this is what makes Hart an inclusive legal positivist
 Eg: Ayodhya – at the heart of it is only a land title dispute – court simply has to look at facts
and evidence and see who has the better claim to land – doesn’t seem like a penumbral
problem, but there’s an extralegal thing surrounding this dispute – decision of court is based
not on questions of property law, but rather on wanting to end this issue
 discretion doesn’t necessarily lead you to CLT or NLT – the choice can also be posited
 to an exclusive legal positivist the problem of penumbra can be solved only be changing the
law – if social convention has moved on to present this problem, then the law can be changed
to reflect this – law should evolve according to social considerations – but exclusive legal
positivists would be fine with using principles or conventions which are already a part of law
– Dworkin says this, that the penumbra can be fixed by a principle; an exclusive legal
positivist would look at whether the principle is posited, if not, the law needs to change

 society might posit certain moral principles into law but the legal force comes not from the
fact that it is a moral rule, but from the fact that it is a posited rule – recognition is what is
required
 no general requirement on rules of law to be moral rules
 what do you do in a society where social convention is against you, and you are a
minority?
o secondary rule mechanism may not really work – hypothetical fear that positivism
leaves you without any power against tyranny – falls back on utilitarianism and
focusses on social utilities
 o Bentham used human condition to change the idea that some people are more capable
than others wrt slavery, talks about how even slaves are capable of suffering just as
everyone else, the same way – in which case you must not inflict that suffering
o Hart – positivism can end a lot of tyranny – can look at old problems in ways that it
has not been done
o Doesn’t give you a smoke screen when you are yet to discover moral reason, or in the
process of discovering this moral reason – urges you to analyse even before doing the
act
o penumbra of doubt – there will be times when there is no right answer – can fall back
on looking beyond the law – judges may look at certain principles since they have
experience and training in this function
 Exclusive legal positivism
o social conventions and laws don’t have a gap – social conventions constitute the law,
and so what the law must do is decided by social conventions
o exceptional situations – can be solved by following social convention
 Hart – NLT proceeds on the premise that everything is penumbral, needs an application of
morality – there’s only a small area of penumbra for Hart – for exclusive legal positivists
there is no penumbra
 Exclusive legal positivists – authoritative thesis – law qua law – something being law in
itself has authority, the act of becoming law is authoritative – content doesn’t matter to derive
authority – therefore, the act of positing something into law has to be an identifiable act – in
order for law to be authoritative it must have passed through that formal process, after
which the law by itself commands authority – no other rule (moral rules or social
conventions) has authority just by existing except law, and therefore law cannot be confused
with any other rules
 NLTs – law will only give you obligation if it gives you good reasons for action – ELPs say
this doesn’t matter – you may or may not have good reasons for action but that does not
matter you have to follow the law as it is authoritative
 Law places limitations on itself – as long as the limitations being placed on laws are within
the law itself that’s fine – ELPs are not looking for absolutism
 When justifying oppressive treatment we start with dehumanization – utilitarian philosophy
did away with this - basic humanity / human characteristics are the same
Chelameshwar in Mohd. Arif:

 Throughout places all arguments within the context of the law

 Para 13, 23, 28
 Legal authority – goes in the opposite direction – makes reference to this
 a co-equal bench cannot overrule, unless it is referred to a higher bench – so in this case is it
judicial impropriety? – carving out an exception, not overruling – but PN Eswariyer
technically holds exactly on this same point of law
 precedents also have authoritative value
 how is it a penumbral situation? or not?
o para 26 “review petitions normally heard by the same Bench”

Aghnoo Nagesia v S/o Bihar

 Facts: Four murders, accused files an FIR against himself

 Argument: As per S.25 of the IEA, a confession cannot be used as evidence
 confession is not defined anywhere in law – Pakala Narayanswami case decided this – must
be something that admits guilt completely
 Generally, confession is the best evidence – only the actor knows certain things like intention
– people also generally don’t willingly lie to their disadvantage
 Law doesn’t stop people from rationally acting and confessing – but has to be as per S.164 of
CrPC – a magistrate can only record a confession only when someone is produced before him
from judicial custody
 S.25 rule doesn’t talk about threat, torture, inducement, promise, etc even though it’s there in
S.24 of the IEA (when it’s a confession made to anyone who’s not a police officer) – bright
line negatively worded rule (generally negatively worded rights doesn’t have exceptions)
 S.27 – proviso to S.25 – partially lifts S.25 bar – fact obtained as consequence of information
given by a confession may be proved
 “I can point them out” – tells you that the dead bodies are concealed, and yet to be discovered
– info that will lead to the discovery of the fact – info in FIR that leads to discovery of fact
can be proved, whether it is a confession or not (reading 25 and 27 together)
 Lower courts – break up the complaint – see which parts are confessions (gravely
incriminating), and the rest go out, and that is sufficient to convict – but taking those few
statements out still leaves the fact that he had motive, was armed, and was present, and the
person died – so no point in taking out this one statement, guilt is an easy conclusion
  Breaking up confession doesn’t work – taken as a whole even these individual statements
together form a confession – otherwise being hyper technical to come to a result
 SC – cannot break it down post facto if it was made as a whole – police officer should
have taken him to the magistrate
 S.27 evidence – when Aghnoo Nagesia led the police officer to the dead bodies – part 17 of
confession, and the fact that AN had knowledge of this
 He most probably was the killer – no argument of forced confession from him – but he was
acquitted
 Why have the S.27 proviso? – if actually info is given and info is verified by independent
discovery, then this information is true, and should not be taken out of evidence
 You have to only look at what the law says – As per S.25, a realization of the Art.20(3) – the
HC sees an inherent need to convict leading to the judge being in a moral quandary which is
why they break up the confession into parts – but this renders redundant the deliberately
granted protection of law
 No eye-witness in this case – based on circumstantial evidence unless you take the FIR into
account
 This entire case is based on a procedural right – all these rights are for the accused, in order to
effectuate important rights, like fundamental rights – statutory limitations on State power

Is positive law strictly applied here?

 Strict application of Ss.24 to 27 – mandate of S.25 followed completely

 exclusive legal positivism – S.25 strictly applied – following the letter of the law
 secondary rules – must always give officials reasons for action – the reason here is the right
against self-incrimination – it can always be made seen by police officers like it was given
freely by the accused, as a judge you cannot verify – have to uphold S.25 no matter what the
situation
 if an error is possible, always err on the side of liberty – acquitting rather than conviction –
o State is always at an advantage wrt resources
o the accused stands to lose everything, the State won’t lose anything from an acquittal
is this a natural law principle?
 a situation where the court might have to go beyond S.25 – in TADA/POTA/Org Crime Acts
– admission made to police officer may be admissible – if this provision is challenged, then
principles of criminal justice would be looked at, go beyond the law
  Dworkin – the legal rule seldom gives the whole answer, and so you need legal principles to
fill the gaps – SC is not only applying 25, but also these principles
 Standards of proof – BRD, Clear and Convincing, Preponderance of Probabilities, prima
facie, ex facie (only from what appears – eg: for a search warrant)
 Situations of penumbra:
o the word “confession” is not statutorily defined – open-textured language – whether
the confession can be broken up, and some of it can be used – motive wouldn’t
constitute an offence, but does it fall within the word “confession” – two ways to look
at the meaning of confession, one is to ignore these principles of law, and another is to
consider them
o “custody” – constructive custody, when custody is not declared on you but you may
be under custody without realizing – 27 may not envisage this situation of Aghnoo
Nagesia where someone walks in and confesses, without being in lock-up
 looking at intention of legislature – always an extra-legal source
 the law in this case almost prohibits you from looking at the truth – criminal trials don’t look
to the substantive truth – its purpose is to find procedural truth, the truth that legal procedure
allows you to see – a confession is not allowed to be seen as per legal procedure – procedural
truth is what remains after procedure has been followed – when procedure is followed,
procedural and substantive truth may align
 Why follow a legal system that restricts substantive truth in favour of procedural rights? –
gives us consistency – that outcome of law should be predictable – value of procedure –
consistency should be applicable regardless of the convict and the nature/seriousness of crime
– if procedural safeguards are disregarded in favour of substantial truth gives way to misuse –
if procedure is followed we have trust in the system, we know what will happen, making it
acceptable
 SC consistently fails to stick to procedural law when it comes to anti-terror legislation

Criticism of Positivism – American Realism

 how much discretion judges have – that discretion can spread – though positivism gives you
the impression that rules lead to results – but as seen in Aghnoo Nagesia there is a lot of
discretion in interpreting these rules