CLASS NOTES

WHAT LAW IS? - SIMMONS

Law is an observable phenomena – look at its components in everyday life

Law as a system – looking at where the law derives its authority from – the Constitution creating a
system – self-contained whole that creates things by which these instances of law come into being

Drastic shift from legal system of the 18th c and post-WWII:

 very few monarchies, the ones that are, are constitutional monarchies
 limited government – not absolute
 moved from a system of no representation to democracy

Constitution – why is it shaped the way it is? – “in spirit Indian”, though largely borrowed from GoI
Act 1935

 Bill of rights – declares rights of citizens (or any human) – feature of most modern
Constitutions
 not status quoist –
o American consti is impervious to social change, and simply preserves the social order
o Indian – fundamental aim is to alter the status quo – aspirational preamble – wants the
values reflected in the consti to permeate into society

Law is all of these – but is that all law is? – Law is several other things as well

Why do we consider law as binding? One part of law is how it works, but another part of law claims
a kind of authority – how does it get this?

 sanctions, but this is still the observable part of law

 understanding the logic behind the law

When is law unjust? – because of ramifications or process?

 Sabrimala – arguments against the order are couched in law – right to religious practice –
when is it unjust?
 Abrogation of S.370 – there is legal precedent, it was earlier amended with the assent of the
Governor when there was no Assembly – opposed with legal claims, based on the idea of
consent
All these normative arguments of what should be done is also law – Simmons – philosophical
reasoning is simply a fuller way of looking at law, more than looking at concepts – look at what
something means, what it implies, what it does, what it should be and do

Constitution has three types of rights – in general, against state, against another – but what does it
mean to have a right? who gives you this right, where does it come from? – one aspect is what courts
and lawyers and legislature does; but the other aspect is what you can do because of these rights –
how is this a part of the law – how Simmons sees law

Justice – is it the end product of law? end product distinct from law? goal?

What leads to all these things becoming part of law? Was it because of the aspirations of Consti
makers?

Do the social movements that change law also reflect the nature of law? Is law complete only when it
is legitimate – what about refusing to follow law? Why are some laws legitimate and other
illegitimate?

 there are some safeguards that always exist

 but what is it so innate in law that we are ready to follow it?

While we might disagree on the meaning of justice, we would agree that law must further justice

Legitimacy – it is necessary to argue that what the law is doing is just, in order to get people to agree
with it – if things are generally going according to law and if systems are in place, we accept all
outcomes as legitimate – Simmons is talking about this idea; not the content, but the process

Danger that Simmons talks about – always looking at law as something beyond what you can see – if
you say that something exists in the abstract, we can differ as to what exists in the abstract

What is the point of having something as abstract as law it does not have a point – Marx talks about
the law even if its most benevolent form being a product of capitalism

One person’s definition of law may not coincide with anyone else’s, and your understanding of the
result of law is not what it might actually be – difficulty in defining law

Can’t say that all rights are curtailments of already granted freedoms – untrue, depend on your
position of privilege

Natural law – says all law has to justify a certain morality – but just because you justify law using the
language of morality doesn’t mean you get just results (Eg: caste system, slavery, terra nullius in
Africa) – start reading Finnis
WHAT IS LAW NOW?

India has rule of law, technically – systems are in place

Dynamic understanding of what law does – Eg: Art.21 seen as substantive and not merely
procedural, all kinds of positive rights are found in it – procedure established by law has almost
changed into due process

Basic structure – trying to locate unalterable values that can never be abrogated

VALUES

Khusna Bhai – challenged the constitutionality of ITPA, which criminalised ancillary parts of
prostitution; sex workers asked to leave by municipalities – shocked that consti could be used to
defend something as immoral as sex work

The way rights and values in the Constitution are seen and interpreted has shifted – Eg: Art.21 from
being a procedural right to a substantive one – you find a certain value and you posit it into the right

S.377 – doesn’t mention sexual orientation, but still argued that a certain class of people are
discriminated against unreasonably; also argued on the right to privacy – completely different from
the 2013 case

Where do these values come from? Is there something inherent in Constitutional law, or Art.21 or
14? – Discussed in the Constituent Assembly Debates, though it’s not there in the text of the
Constitution

Why do we value some values over others? Why are some values acceptable now though they
weren’t in the past? How are we coming to the conclusion that these values are a part of law, a part
of the Constitution? And if we say that law has values, how do we ensure what values are part of law,
inherent in the Constitution, and which are not? How do we decide, and why do we think, that some
values are legitimate?

Constitutional courts – sometimes said that they are counter-majority institutions where an individual
may win against an entire collective

Constitutionality of the death penalty – posited law clearly says that death penalty is envisaged and it
is there; even CAD mentions it, Ambedkar pushes for abolition, but it is retained – The new CrPC
(S.354) default is life imprisonments, special reasons recorded for death penalty – death penalty
upheld in Bachan Singh – so how can it be challenged?

 death penalty always mentioned in a limited manner in the Constitution

  dignity of the individual – solitary confinement, for years while their appeal and mercy
petition get decided; minimal human contact – part of the death penalty (as per Ss.73, 74 –
can’t be sent to solitary for more than 3 months, and even then only by an order of the court;
and break of 2 weeks before next being sent)
 double jeopardy – additional punishment of this punishment

But where do these values come from? This challenge will be a counter-majoritarian measure.

One way of looking at law is to look at in terms of mechanics – do what the law says. But in
constitutional courts law can be more than that – a part of your duty is to adjudicate upon the validity
of the law – but how should you do it? Using Consti law? Will this include values of what the law
should be?

These values in the law are not equally accessible to everyone.

READINGS
N.E.SIMMONDS, LAW AS A MORAL IDEA
Dual status of jurisprudence – philosophical inquiry concerned with the nature of law and justice, but
also an integral part of developed legal systems, shaping the forms of doctrinal reasoning that
characterize such systems and articulating the presuppositions on which those forms of reasoning
rest.

We think of justice as an ideal that must be achieved, but law as a human institution, an observable
social phenomena – how can we resolve these two? There are lots of theories about law and justice,
but this book rejects an analytical jurisprudence detached from the idea of law, and suggests that law
is intrinsically moral and an inquiry into the nature of law is a moral inquiry.

PRACTICE AND VALUE

Ideas of reason and justice are presented as normative standards – this apparent independence from
reality leads philosophers to place these values as separate from ordinary life. But this far-off view of
these values makes them useless to ordinary life. Philosophy needs to be able to capture and ground
these values without stripping them of their critical and normative force and reducing them to a
simple reflection. The relationships in which we associate together embody our values. Jurisprudence
plays an important role in this process by deepening our grasp of these values.
The idea of law occupies a prominent place within the moral and political values of our civilization.
We need clearly to comprehend that idea if we are to adopt an intelligent stance towards those
values. Also, the practices that we regard as embodying (albeit imperfectly) the idea of law must be
understood through their relationship to those values

IDEALITY OF LAW

One part of law is law as an observable social phenomena – the practices – but the concept of law
also has a role within those practices, which justify them, give them power

Positive law cannot be self-grounding as natural law would still have to precede it in order to
establish the authority of the lawgiver – positive law derives its authority from the way in which it
serves to realise conditions for jointly possible freedoms – these freedoms can only exist if authority
lays down conditions for this freedom – the set of conditions will be a system of principles, and each
individual enactment under this will only be a contribution to this system – these enactments are law
in so far as they realise the conditions within which freedoms are jointly possible, and realizing this
set of conditions requires legislative choice (this shows the need and basis for sovereign authority);
law must also therefore form a system rather than a collection of diverse or conflicting enactments

Rules enacted are law only by their absorption into a system and body of ideas that transcends the
totality of enacted rules

REDUCTIVISM AND IDEALISM

Law is more than just the aggregate of decisions or statutes or practices – it gives coherence to our
practices without being reduced to one, or a sum of practices – it is also a justification for imposing
sanctions, when intelligibly invoked

Hart:

 normative in character – it is concerned with the existence and content of prescriptions that
purport to guide and regulate conduct
 must be located within the internal pov of participants