JURISPRUDENCE

Focus on class discussions for exams

Positivistic school of law- command, duty and sanction- there is somebody who commands. But
there is no morality in this.

Law is not the only restriction on human behaviour Customs, peer pressure etc.

- Law can be objective set of rules at the same time it can be subjective. In eaurope public
nudity is legalized – at certain public places peoapl can practice full nudity. Their perception
of nudity is completely different from India. This suggests that Morals and Morality can vary
as per societies. Codifying morality and justice is the nature of law.
- Desctribe the nature of law- difficult to arrive at a single defn. Law can be objective set of
rules (systemic aspects of law ) and subjective (open to interpretation)
- There are more grey areas than black and white areas of law- such areas requires authentic
interpretation which judiciary given to take care of subjective and moral aspects insitutiton
of judiciary has been evolved.
- Salmond: Defines law as the body of principles recognized and applied by the state in the
administration of justice.
Body of principles- body of rules and regulations (systemic character of law)
Recognized- recognized by the state(which is a political authority). There needs to an
authorised body
Administration of justice- justice mediated by the sovereign. End objective of law is to secure
- Holland(positivist): Law is a general rule of external human action enforced by a political
sovereign devoid of moral, ethical and ideal elements which are foreign to law and
jurisprudence.
Explanation: Law is forced upon us by the state. Law is an action of state that guides human
action. Most essentially there is no place for morals, ethics. Humans are not to be guided by
their internal aspects but should be only guided by what state says.
- Ihering – father of sociological jurisprudence Law as a form of guarantee of the conditions
of life and society assured by state’s power of constraint. Law is a means to an end and the
end of the law is to serve its purpose which is social and not individual.
Law is there to safeguard the society and social order to maintain order and prevent chaos.
There should some authority to regulate are behaviour.
- Rosco Pound- Sociological school- He defines law as a social institution to satisfy social
wants. Law is social engineering. Which means that law is an instrument to balance between
the competing or the conflicting interests .
There are conflicting interests in the society. Eg Banning alcohol for public welfare vs revenue
generation. Need to balance social political and individual interest through law. State and
judiciary are there to balance.
- Lordchipman Gray- Law of the state or any organised body of men is composed of rules
which the court that is the judicial organ of the society lays down for the determination of
legal rights and duties.
- Justice Homes- Law is the prophecies of what the courts will do and nothing more.
Prophecies of what the courts do and nothing else.
Gray and Homes belong to realist school of law- Legal Realism. Judiciary is the centre of law
making. The playground of law is the courts of law. Statutes are just the instruments for the
 judiciary. For eg the Vishakha guidelines (judge made law). Precedential continuum. DK Basu
case (guidelines) . ADM Jabalpur .

What exactly Is law?

 Law is a legal order. A way of ordering conduct by systematic application of

force(proportionality) within an organized political society.
 Law is a body of legal precepts which exist in an organized political society.
 Law is a means of social control in a politically organized society.
 Law is also an instrument of guiding judicial action.

Essential aspects of what is law

- Normativity(inherent quality of law)- legal systems prescribes set of rules to guide human
behaviour. Law is prescriptive in nature(it tells us to do something) it is also evaluative in
nature. Enforeceability comes of from state’s power.
- It is a social phenomena- It emanates from and is shaped by the needs of the society. The
legal system cannot ignore the society. Law should align with the value shift
- Authority and legitimacy are at the bedrock of law. For any law to be effective not only it
should be socially consistent but recognised and backed by . Authority= Power+
Legitimacy(Max Weber). Legitimacy comes from support and consensus of people. Source of
authority might vary from system to system.
- Law has a coercive force- It is backed by the power by govt authority to ensure
compliance(sanctions or penalties). Companies might be rewarded but deviance is punished.
- Law is also evolving and adaptive. Law is not static it has an inherent dynamism (through
amendments).
- Systemicity- law is systematic- it is a systematic – it an architecture of rules regul that
provides structure, stability and consistency.
- Law aften intersects with notions of justice and morality .

TAKE 14TH AUG NOTES

17th Aug 2023

Normativity of Law

Laws are coercive in nature. Not all laws are coercive in nature.

Calson- Normativity of law Prescriptive aspect of law is a system level property in law. Not all law
be backed by sanctions. It means law as a system must be oriented towards prescription. In a
legal system there might be laws which might not be prescriptive but the legal system as a whole
should be prescriptive. At a broad level laws are prescriptive but the invidual laws may or may
not be prescriptive.

Mandate – Sanction – Compliance (Pathway of normativity) sanctions mediate mandate and

compliance. This is sometimes broken.

State only has monopoly over legitimate use of violence – this is essential aspect of normativity.

Joseph Raz- 2 conceptions of normativity of law are present:

- Justified normativity- our conduct vis a vis other person and state should be mandated only
by legal standards. It is basically constitutional morality which has a legal setting in place.
- Social normativity- Operates at a social level which means this normativity guides us to those
standard of behavious which are socially upheld to be binding standards. And society
pressurizes individuals to conform to them. It is popular morality. It may be biased.

Both these normativities should be in balance but sometimes justified normativity. Examples of
blalance could be ‘reasonable restrictions’.

Scott Shapiro – Planning theory of law.

- His theory is built on 2 concepts as to how norms and institutions are connected
- 1. There are legal norms act as shared plans for a particular object eg an public policy.
- 2. There are legal institutions- are there to execute these shared plans to execsise social
controls and governance.

How does normativity in law manifests?

- Backbone of normativity in law is a legislation created thru legislative process. In modern

societies everything functions on law. They are designed to govern the behaviour and
organization
- Caselaws – they are defacto laws

18th Aug’23

Expressions of normativity- Expressions of Normativity:

i. Legislations

-Normativity of law is manifested in Legislation. The laws which have been formed through
legislation form the backbone of normativity.

-Legislations have been specifically defined to govern our behaviour.

ii. Case Laws and precedents

-De Facto Laws

iii. Customary Laws

-They carry a normative weight and influence legislations.

-Interaction between Law and Morals, fundamental question of jurisprudence.

iv. International Laws

-Influence state practise

-Opinio Juris

-Soft law

-To alleviate the obligations of countries into binding compliance

-International systems and sanctions, for example, Trade restrictions, Embargos, calling back
of diplomats and ambassadors, etc

-Success of International Law example, Montreal Protocol (Ozone Layer)

Functions of normativity-
 1. Providing a legal context to a social situation. (laws, norms provide legal context to social
situations)
2. Provide a structure or framework to law – norms give framework. It narrows down and
pinpoints.
3. To bring about social, and legal order
4. It empowers govt to exercise authority legitimately it helps in establishing a system of check
and balances and exercise rule of law and eliminate arbitrariness.
5. Norms bring about a balance in social conflicts
6. Law contributes to legitimacy of the legal system.
7. Norms help in interpretation and the scoping of that interpretation by judiciary and
application of laws by govt.
8. Normativity helps in facilitating legal reasoning

Issues and challenges vis-vis the normativity of law

Legal pluralism can be a chellnge- in certain societies diff legal system exists. The more diverse
the more difficult to reconcile the decisions. It is synonymous with diversity in legal system. For
eg UCC we have diff relgs and they have diff laws . Guiding consistent. Legal pluralism is
synonynmous with social pluralism.

Separation of law from morality- positivists says morality are not relevant. It devoids normativity
of its evaluative charaterstic. Pos outlook robs normativity of its evaluative characterstic.

Conflict between normative prescriptions and cultural or social values which can be progressive
or regressive- Legal system need to adapt and evolve . Some of these regressive norms of society
impede with progressive elements of normativity.

Is and Ought problem

Roghly analogous to descriptive and prescriptive.

It is called metaethics

The is ought problem was made a subject of philosophical inquiry by David Hume

Snake is dangerous because its poisonous. should not therefore hold it- 2 parts. Snake is poisness is
decriptive. 2nd part frm is prescriptive.

Snake is dangerous you should not release in the classroom- 1 st portion is prescriptive

Hume said- A problem with moral thinkers is that they try to draw prescriptive judgement out of
descriptive statements. So they try to derive ought to be statements.

It is not always possible to certain ought statement from a descriptive statements. There are poor
peoplr in the world . Fact and value do not always fuse and there is gap. Any a attempt to estb a
cause effect reln

Descriptive- prescriptive

Description- evaluation

Fact-Value
Objective- subjective

Law-morals

It is problematic to derive a value from a fact. This gap is called the Humes Gap. There is problem in
deriving ought statement. We cant derive it with certainty all the time. There will aways be a gap.
There is a gap in translating fact to value .Hume highlightes the dic by factually observing something
like there is inequality in the world we cant make predictions about human behaviour that people
should reduce inequality. Humes Guilliton.

IN the field of law the is and ought problem is about describing the law as it is and prescribing how
the law should . Jud decscribes how the law is then it has to determine how the law should be in the
interest of justice and morality. 2. This is also the dichot between legal positivists and natural
therorists of law. Positivists only see how the law is and they look law as a fact like law is law is.

Is cannot always dictate the ought. There is always a scope for interpretation.

The ‘is’ statement in legal philosophy refers to the factual description of the existing legal system.
How law should behave in the interest of justice and morality

Is statement in legal pholosphy . LP looks at how the law is enacted and recognized by govering
authority. Ought statement in legal philosohly involves normative jugements about how law should
be constructed , interpretaed andapplied . This invlovs interpretation, evaluation and ethical
considerations.