CLASS NOTES

NATURAL LAW THEORY

 adheres to the thought that law has content and value
 not one uniform idea – has several strands

CLASSICAL THEORY – FINNIS

 classical – chronologically first, widely accepted, privilege, enduring value – inherent value
which cannot change
 Goes back to ancient Greece – nature of morals, duty of man
 legal theory – attempts to answer the question of what law should do – what it is right, just
and proper to do – looking at more than just the mechanics – the fullest theory of law – most
complete and comprehensive because it attempts to answer this normative question
 Speaks of certain moral choices or categories – which exist on their own, don’t depend on
human choice or interference – most fundamental idea of NLT
 teleological inquiry – Greeks observed, found an order to things, and emulated that order in
their systems – order of nature does not change, even if you disobey
 practices of humans are either natural or unnatural whether they align with the way of nature
or not – these values exist above human choice, we can’t change them
 Has had a huge impact on Roman Catholic church and therefore European states
 classical natural law theory – it is a theory of law that tells you what law should do in
accordance with the normative nature of the world – in accordance with they undertake the
inquiry of what the legal system and the law should do.
 critical morality – unalterable, eternal
 best theory – because it can answer every question by looking at the natural order of things –
goes beyond the law – promises that the law will be constant
 if by observation it is seen that nature does not have a uniform rule, you simply say that there
was a mistake in identifying the rule, but that does not defeat the basis of the theory
 a law which does not align with morality or has no moral content is not no law, and can still
fall within natural law – if your human law does not align with natural law, it is definitely
unreasonable, but that does not mean you do not follow it or that it creates no obligation or
that it is not law
Why follow natural law?

 man is endowed with a capability of reasoning (additional), long with having rationality
(animals have rationality) – being reasonable, man has an additional burden of acting
reasonably
 by aligning yourself with nature which gives you reasons for action, you can act reasonably,
and your life will be better
 cannot align with nature fully – you have to exercise your reason to see which parts of nature
to align with – your physical needs are in requirement of moderation
 positive law by contrast is much more modest – only talks about human institutions – natural
law goes beyond this

Oxford Handbook of Legal Studies – easier version

Andrew Altman – Arguing about Law

Finnis – 1-45

Finnis – three golden principles

1. cannot answer an injury with an injury – no retribution / death penalty

2. should not do any evil
3. do unto others what you want them to do you

Retribution – if someone inflicts pain on an innocent, an equal amount of pain may be inflicted on
him

Deterrence – punishment to lessen crime – based on the assumption that someone will evaluate when
they commit crime – comes from utilitarian thought

Method –

 initially teleological all natural law phenomena have a set purpose – but after a point natural
law scholars started looking inwards
 is there something universal about human beings that all cherish / would want / deserve
 apply human reason to see what desires are justified or unjustified – moderated
 what should one do
  cannot derive a normative standard from something that simply exists – apply human reason
to understand what is the actual natural law – merely because the law says something doesn’t
mean in ought to be so (positive law theory)
 what you ought to be? – one part, to see what the mechanics of the law say; another part, to
see what the reasonable thing to do is
 merely because something is positive, doesn’t mean it ought to be so – doesn’t mean you
don’t follow it, NLT’s purpose is not to strike down laws, but simply to give you a standard
to evaluate these laws, and reasons to criticise them – las has to be reasonable to have moral
authority, but it can be binding even if unreasonable
 Bhachan Singh – “rarest of rare” principle – reasonable standard that you want the law to
follow – to align the law with what is reasonable
 what are these standards? – perhaps moral, arrived at through a process of reasoning

RIGHT

 Hohfeld – You have a right, if you identify a corresponding duty – if you have a privilege
there is no corresponding duty
 criticism of NLT – no conception of human rights, just reasonability in terms of duty
 Finnis – Classical NLT comes up with rights – Aquinas – gives you the entire language of
talking about rights
 positivism – everything ends at the end point of something existing or not in social
convention; natural law on the other hand bases this on reasonableness

AUTHORITY

 positivism stops at whether there is an authority or not as per social convention

 positivism does not give you the tools to challenge unjust authority – Eg: part of the reason
why German courts couldn’t stand up to what Hitler is doing is because of their positivist
stance – could not talk about what to ought to be – if they had followed NLT they could look
at what should happen
 Emergency period – courts allowed suspension of 19, 20, 21 – just following authority –
positivist stance
 Positivism only gives you limited rights, as per the authority of a possibly evil govt – NLT
you are always entitled to ask why, ask for law to give you good reasons for action
  what is reasonable might vary – but at least NLT gives you the scope to argue based on
reason

Relevance of classical NLT now:

 theocratic state – religious code gives reasons of what ought to be done

 open ended end goal – integral human fulfilment
 philosophical inquiry applied to law

What do you do with an unreasonable law?

 Nuremburg trials – common defence was that they followed law, and they did what the
German law told them to do – didn’t really have a choice, would be sentenced to death –
would not technically be disobeying law, but would be punished
 Modern NLTs – forget individual contents – see what the Nazi govt was doing, they were
passing laws in secret, clearly unjust/unequal – this is so unjust that you have to disobey –
some say that the entire legal system is invalid and therefore you must disobey
 Positivists – unjust, but it was law, and to punish them now you have to pass a retrospective
statute punishing them
 NLT – when law stops giving you reasons for actions or gives you unjust reason – then
disobey – moral authority comes from reason

MODERN NATURAL LAW THEORY – BIX

 Classical NLT – more a theory of philosophy, applied to law

 NLT – became a theory of the Church
 Political reasons for a secondary inquiry into NLT:
o Rise of protestant – needed a theory even they could follow
o Wars in Europe
o idea that you must move away from God in talking about politics, law
 Still looking at an ought question – not going to derive an ought from an is, without applying
human reason
 Started looking at legal systems, rather than law as a whole – what does it mean to construct a
legal system – in the legal and moral sense? A law that you would want to follow, rather than
be compelled to follow
 Confusion between moral and legal obligation – Blackstone criticised
 o an unjust, unreasonable law is no law at all - false
o positive law, even if unjust, can create an obligation to follow it – it will fail to create
a moral, reasonable obligation
 Danger of saying that only posited law is law – Gives rise to circular reasoning – eg: if you
say that unjust law is no law – one way of looking at it is that if it is unjust, it can be
disobeyed – other way of looking at it circular reasoning if you say an unjust law doesn’t
create any obligation, and an example is given of an unjust law that creates obligation
(because of punishment) then you can also say that by your own definition this law must be
moral, therefore all laws become moral (can be greater public good)
 This is why NLTs don’t say that unjust law has no obligation – you simply don’t have
obligation in the full sense, just legal obligation
 Modern NLT originated because after the breakdown of Catholic Church, people started
questioning the theory, asking what the duty of the individual is against collective, what are
his rights – is he always going to be under a supra-sense of obligation, or does he have rights
(basis of social contract – locating the place of the individual in society)
 Grotius – delinked NLT from God – even then NL will be alive, located within human nature
 Natural law v natural rights – looking at the universe v looking internally
 International law – developed with the Law of the Sea – need a set of universal principles that
will apply on the sea – law that will apply on warfield – social/political impulse
 Modern NLTs started looking at legal systems – what they should or should not do

Fuller

 Look at the legal system – ongoing attempt to strive for something – not just posited law, but
something beyond that – Eg: Constitution has values that aim to be established, aspirational
 always values that are behind the system – inherent in the legal system – without which it
will fall apart / commit evil
 these values ensure that the laws passed using positive law are just – but they have to be put
in law
 Eg: Nazi system as a whole – no moral principle or values – laws it passes are inherently evil
– therefore values are necessary to make the system whole
 Eg: Rule of a despot – values are necessary to keep a check
 Are some values valued more? – there are some universal things that all human beings value
– those are the values you must have
 Modern NLTs – if they say that a legal system has collapsed – if it ceases to follow certain
basic values that they must – at the point where the system is a system of coercion, but it is
not a legal system
 Principles of legality – refer to p.80 – testing criteria for minimal duties of govt / objective of
excellence to which to strive – if you are committed to these principles, you cannot do too
much evil
 Positivist response – you can have a promulgated non-retrospective application that does no
evil – NLT: if you are under a despot, would you or would you not want these principles –
the first attack will be on these principles
 Eg: Khartar Singh – special law for punishing terror, these are also punished by IPC – what is
the rationale? NLT: legal system should not pass special laws, this derogates from the
principle of having general laws; Positivist: imply having principles doesn’t mean you can’t
prevent evil, does your legal system positively commit to this value (Art.14, 15, 16), evaluate
this on the basis of what is positive
 Eg: Despot – NLT: gives you tools of critique; Positivist – simply says you have failed
 Eg: non-retrospective legislation – Art.20 gives consti protection for criminal law – Fuller
talks about a general principle – civil law has no ban on retrospective law (tax) – Fuller
would say that this is a legal system that complies in part – Positivists: would say that it only
needs to comply as far as S.20 says so
 As long as you are willing to look beyond posited law, you are using NLT
 Eg: Nuremberg trials – followed posited law – and these are the highest level officers –
o Modern NLTs will look at whether the Nazi system was a legal system at all – does it
comply with any principles – can it create law – no – therefore, what they said they
were following was not law
o Positivists – passed and therefore was law – valid defence – to punish them, pass a
retrospective law punishing what they did – lesser evil
 adheres to the idea that law has to look beyond what is posited
 Hart – inclusive legal positivism – very close to modern NLT – maybe some kind of moral
content, but that is neither necessary nor sufficient –
 MOHD ARIF ASHFAQ V REGISTRAR
Writ petition

Prayers:

1. All review petitions must be heard in open court

2. Must be heard by a special panel – 5-judge bench, or at least 3

Process of death penalty:

1. Client – tried by court of sessions – give the death sentence – S.354

2. cannot be executed as passed by sessions court – S.366 sentence of death has to be confirmed
by HC, along with which convict will file an appeal, now HC is required to look at appeal
3. HC confirms, can be executed, sign off on execution warrant
4. option to appeal to SC – Art.134 of Consti gives grounds for appeal of death sentence (no
man should be executed if two Courts have confirmed death sentence); this doesn’t help –
Art.136 SLP on discretion – SC has said that death SLP will be admitted
5. Lose the appeal – death sentence maintained – Go for review – Art.137 – grounds for review:
a. error on the face of it
b. if the error were to be corrected, the judgement would change
6. Fail review – Curative petition (not created by the Constitution, but by the SC)
7. Lose the curative – over – can’t pursue further in judiciary
8. Executive – mercy plea to President – when do you go for mercy? maybe after you lose in the
SC, or if SC doesn’t admit your appeal, or at review stage or at curative stage
9. Mercy petition first goes to Governor – if granted, ends there – then goes to President,
decided on the aid and advice of Cabinet – dismissed
10. Delay as much as possible – writ petition not on the facts of the case – whether this person
deserves to be executed now – cannot agitate merit of conviction, or merit of sentence – can
only agitate whether this person deserves to be sentenced now – grounds:
a. interests of justice
b. wrongly rejected mercy petition
c. law and order situation
d. so many years served, become really old, mental health – President must be made
aware of all this
e. delay itself – suffering all these years
 Delay – counted only when matter is pending before the executive – solid ground of delay is
necessary, to be created – must decide when to file mercy

Ashfaq – convicted terrorist in Red Fort attack case – reviews have been dismissed – terror accused,
so won’t get mercy – challenged the review rules itself because it was done in closed court

Majority – accepts the prayer – should be heard in open court, 3 or 5 judges,

Arguments:

 change with this procedure happened long time ago because of clog in the system
 challenged – PN Eswara Iyer – said audi alteram partem was satisfied – but currently arguing
for an exception to carved out in case of death sentence

Petitioner:

1. death is a different punishment, qualitatively stands on a diff footing – irreversible - Art.134,

irreversible, special reasons to be recorded, rarest of rare cases
2. Reason for having circulation – overload of cases – death penalty review so few that it could
bear the load – time can be limited
3. diff judges can come to diff conclusions – assumes special significance in death

Amicus Curiae

4. AC: Even if 3 judges here the original appeal, review can go to 3+2 new
5. AC: review petitions intrinsically drafted with many grounds – one ground may be lost
amongst others, court may miss it in circulation

Respondent:

1. Criminal matters – no review as per S.362 – but court under S.362 could not refer to SC
2. PN Eswara Iyer – disposing of review petitions by circulation upheld by 5 judge bench – oral
hearing is already there in main appeal – also says that there are cases which fall outside the
class of cases which don’t need oral hearing
3. Review petitions success or failure depends on how well it is drafted

Discussion:
PN Eswara Iyer – coordinate bench

 review application – deciding something miniscule – audi alteram partem met

 an exception can be carved as per the judgement itself
 reason for this was severe stress of SC workload – but FR to life – v few cases

Article 21 – personal liberty – procedure established by law

 Maneka Gandhi – Art.21 to be read with other FRs – just, fair reasonable – Arts. 14 and 19

Accepted that death sentence is a distinct category of cases – two factors are important:

1. irreversibility – if fundamental right to life is involved, warrants reasonable procedure –

qualitatively at a diff footing from any other punishment – why is death penalty a unique kind
of punishment? – This happens only if you cease to see death as diff from an ordinary posited
punishment
2. diff judges arrive at diff conclusions with same faces – when this can happen wrt death
penalty, and when someone has a possible death sentence, the necessity of an oral hearing is
an integral part of “reasonable procedure”
a. Standard of rarest of rare (“only when the alternative is foreclosed” – Bachan Singh) –
compare aggravating and mitigating circumstances (Machhi Singh v S/o Punjab) –
look at the character of the convict for sentencing – whether the person can reform or
not – depends entirely on the judge
b. this discretion exists in all cases but it gets special significance when you’re deciding
between life and death
c. Review petition reading – based on good faith – oral hearing gives an opportunity of
conveying points that can’t be conveyed by writing

Logic of majority – circular – saying death is diff, mandating special procedure, oral hearing
necessary, even though PN Eswara Iyer said otherwise (Constitution might say death is diff, but that
is only wrt executive, rather than judiciary)

How would a positivist look at it? – Chelameswar’s way – do what law has posited, what has already
been held by Eswara Iyer

NLTs – law is looking at fair procedure in particular sense, not found in posited law, though looked
for in Eswara Iyer – Nariman is looking at what should be done – purpose of NLT is what is the right
thing to do, not just how something is but how it ought to
Minority (Chelameswar) – doesn’t see death as different from any other punishment provided by
law, and if the procedure is good enough for all other punishments, it’s good enough for death
penalty – why should the procedure change? – can’t make this emotional appeal – no authority

Finnis – do not answer injury with injury – purpose of death penalty cannot be retribution

This challenge is just making it more and more difficult to grant the death sentence, when they don’t
want to bring up a constitutional challenge yet

Result – now all death reviews get 30’ oral hearing – all those people whose review petitions had
been dismissed by circulation and so now they got an oral hearing – the people whose curatives had
been dismissed did not get any benefit

PNJ doesn’t promise a right of oral hearing, simply a right to a hearing – plus, at this point there
have already been several rounds of oral/open hearing

Art 21 right – already decided upon by PN Eswara Iyer, even taking into account that procedure must
be just, fair and reasonable

How do we come to this principle that death is different? What is the source of our authority? We’ve
exhausted all the sources from which the positivists could have got this from

Majority – rereads PN Eswara Iyer – observations that sometimes oral hearing is necessary; points
might escape the judge – but this is very vague – what is the binding force on a concurrent bench of
same strength?

NLTs – would say that these standards are normative standards – what ought to be – what standards
have been adopted – taking of life must be done with a special degree of caution which will only
happen if you allow for oral hearing at review stage also

Death at a qualitatively diff footing:

 irreversible
 as a result of the judge’s decision, a human being’s life will end

Human life occupies a very central position in NLT – do not answer an injury with an injury – in
Mohd. Arif’s case it seems that this is something judges have attached themselves to

Postivists – all norms of law have to be social conventions – recognised, and be made law – all
authorities in this case point to the fact that no oral hearing must be afforded, except the vague
observations – if the law is wrong, it must be changed and posited by overturning PN Eswara Iyer,
refer to larger bench or get the rules changed – don’t hide behind the moral quandry, but rather face
it with candor – why constitute a special three judge bench, where is this standard coming from – SC
often reaches a conclusion and then reasons it out – keep switching form of thought

SURESH GUPTA V GOVT OF NCT DELHI

Medical board opinion / post mortem /etc – unclear

JACOB MATHEW
Read recklessness/knowledge into gross negligence – this can’t be done since knowledge is part of
culpable homicide which is already excluded

Criminal law – must necessarily have a higher standard of negligence

Policy concerns – doctors shouldn’t operate under the pressure of overarching liability

Is the usage of precedent in these cases applying at standards existing in law as precedent or
looking beyond that in order to answer the ought question?

 causus omissus –
 foreign precedent used – is this law? – not binding on any court in India, only possible
persuasive value – used as guidance to reach the conclusion that they think should be reached
– exercising discretion beyond the law
o Bolam test – applies only in tort law, especially for COPRA
o if a foreign judgement has been cited in a SC judgement – the SC judgement is
binding, and hence the principle used from that foreign judgement is part of ratio –
but foreign judgement is not binding
 do Indian precedents give rise to the same conclusion?
o Syad Akbar – talks about distinction b/w civil and criminal law in negligence
o Bhalchandra v State of Maharashtra – this standard cannot be used – the facts of this
case were that of a motor accident
o HC judgements – persuasive value
 if you look at the law as beyond just doctrines and judicial precedents, but including general
principles found in law, policy considerations, then maybe it’s neither of these extremes but
 rather an extension of these principles and policy considerations (not overcriminalising, not
having a chilling effect, not attributing an act as criminal without adequate mental element)

How is it justified to create a separate standard for medical professionals?

 Part of the reasoning drawn from sections of the IPC dealing with general exceptions – but
none of this points to a separate standard for medical professionals
 CLTs – all law is politics – not objective – when faced with a respectable profession, one that
is familiar to judges, courts are readily willing to create a separate standard of liability
 READINGS
JOHN FINNIS, NATURAL LAW: THE CLASSICAL TRADITION
law – any criteria of right judgement

natural – these criteria or standards are somehow normative prior to human choices – following law
is part of acknowledging the reasonableness that comes from nature

classical – descriptively, the theory that emerged in classical times, chronologically the first;
normatively, sound and entitled to acceptance

MODERN NLT

Intro points on NLT:

1. dominant concern is with judging for oneself what reasons are good reasons for adopting or
rejecting specific kinds of option – ought is never derivable from is
2. Morality, and natural law (in the relevant sense of that term), cannot be reduced to, or
deduced from, the principles of natural science or metaphysics, logic, or any craft.
3. one cannot reasonably affirm the equality of human beings, or the universality and binding
force of human rights, unless one acknowledges that there is something about persons which
distinguishes them radically from sub-rational creatures

Break between modern and classical NLT – loss of classical theorists’ insight that you understand:

 human nature only by understanding human capacities

 human capacities by understanding the acts that actualize them
 those acts by understanding their object
 the object is the reasons for action – must pay full attention to their instrinsic worth, the ways
they fulfill perfect human persons and their directiveness or normativity for thinking what
should be done

EXCLUSIVE LEGAL POSITIVISM

Legal positivism is in principle a more modest proposal: that state law is, or should systematically be
studied as if it were, a set of standards originated exclusively by conventions, commands, or other
such social facts.
The only source of normativity, and therefore of the normativity of a particular norm, is positivity,
that is, the actual willing of that norm by a superior – will is superior to reason

Positivism does not work because law has a double life – it exists as a sheer fact which is positive but
it also exists as a standard directive for the conscientious deliberation of those whose responsibility it
is to decide, which is more than what positivism accounts for.

INCLUSIVE LEGAL POSITIVISM

Consider moral standards only if the state’s law authorizes judges to ask what morality requires in
certain circumstances – moral standards included within law

Law can be considered in two ways:

 as a complex fact about the opinions and practices of a set of persons at a time - ultimately
concerned with facts – doesn’t need to make judgements about the standards of the system
 as god reasons for action – this comes down to moral reasons – to count as law It must be in
line with morality’s requirements

Classical NLT is concerned with the latter while having respect for the considerations of the former

 offers reasons for considering general descriptions of the law – based on understanding of
good reasons

Positive law can either be defined as:

1. all and only pedigreed standards – results in relationship between courts and law falling
outside the scope of jurisprudence
2. all and only standards applicable by judges acting as such – cannot be done well without
using classical NLT

Legal positivism identifies itself as a challenge to NLTs – they claim that NLTs overlook social facts
relevant to law – and claim that there is no necessary connection between law and morality / moral
responsibility – this statement cannot be affirmed without look at what morality has to say about law
– if you are positivist about law, you must be positivist and rigorously descriptive about morality –
an inclusive legal positivist who assumes that its pedigreed sources refer to morality, doesn’t mean
that the system innludes morality – what it includes is what the judges, or that community thinks is
moral – there is no innate morality

Positive laws are social facts which count as reasons, morality is what makes their social sources and
their social-fact content count.
METHODOLOGY

Uncertainty about method – uncertainty about subject matter being concept of law or law as a social
reality / reason for action

Hart – looks at reality of law by trying to reach a better concept of law