JURISPRUDENCE ASSESSMENT – 1

Submitted to : Professor Sandeep Kindo

Submitted by : Shivangi Mayaramka

Batch : LLB’21

Student ID : 21010517

Legal philosophy stems from systematic reflection and interpretation of what ought to be, in

respect of both assets and liabilities of the society and how it came about. In ordinary

circumstances one can bifurcate obligations on accounts of morals or legal duties, for

example I might be morally inclined to gratuitously lend a helping hand to a friend but it

would be my legal obligation to report if the same friend has been involved in an illicit

practice, however to understand obligation in the domain of jurisprudence we need to sharpen

its scope of simplifi9cation. To apprehend obligation’s standing in varied spectrums one

needs to address the questions surrounding the nature of law:

1. What constitutes the nature of law and how do these elements embark together to provide

structure?

2. How is normative behaviour of a creature in consonance with the actual world?

3. What derives obligation in pursuance of law, the source that provides its legitimacy and

correctness and maps a bridge between morality and law ?

John Austin, situated the rational equivalence of command, sanction and obligation under a

unilateral mutually inclusive scope, the English theorist believed that sanctions as a way of

demanding strict adherence to laws is what derive obligation. His approach was closed

analogical one in terms of positive morality, laws of honour, international laws , customary

and constitutional laws and remotely analogical in terms of metaphysical laws like physics
and sciences. the major entity in his argument revolved around the identification of a

sovereign, and that all independent politically developed societies consist of one, it could

either be an institution or an individual but regardless it is them who pronounce obligation

since the commands that these sovereigns lay down are followed as rules which bear

significant consequences if not followed. Austin moreover takes into account certain laws

that he feels do not fit into the regular boxes that he has drawn such as ‘imperfect laws’ or

‘laws properly so called’ a phenomena that asserts obligation without any sanction. His

approach none the less seems problematic to me on the offset that if one conducts an

empirical investigation they can find his musing to be power driven and not morally

influenced. Bentham who was a mentor to Austin had a very contrasting belief towards

benefits and necessities of judicial law-making and application of duty and obligation led by

powerful authorities and not morality. His theories conclude as fraud by many later writers

probably because of the posterity of the different times and societies they are read and

interpreted under. In a contemporary scenario it is very difficult to identify a sovereign in any

society and further his inability to explain the change in dynamic when a new hierarchy steps

in, but one could always argue like Harris did that Austin’s remark for sovereign was one that

of a ‘constructive metaphor.’ In conclusion for someone who resides in a post-modern world

his theory fails to distinguish between ruling to terrorise and ruling to oblige with legitimacy.

Kenneth Einar Himma and his coercion thesis though fairly recent makes arguments that

defend the nature of morality being a key principle in natural law and further obligation. his

‘coercion and the nature of law’ closely mingles with H.L.A. Harts ‘concept of law’ which

thoroughly asserts the presence of coercive enforcement mechanisms in order to achieve a

society that respects obligation. Himma also conspires from Frank Jacksons work : ‘from

metaphysics to ethics’ where Jackson argues “metaphysicians should be after so-called

modest conclusions, which are conclusions that reflect and account for how things are

according to our ordinary conceptions.”1 for example consider a pair of scissors, one could

use them to cut a bag of wafers or its sharp tip to punch a hole in one, but what might be a

more conventional or conceptual use of it the latter or the former? the former because that is

what normativity consists of in natural course of law and Himma’s understanding of

obligation also comes from the functional normativity. He encompasses law to be purpose

tailored, focuses on a characteristic use of law instead of holistic and so he says “law is an

artifact whose functional normativity is to keep the peace” he acts on the motivating aspect of

law to guide people into following their duty and obligations, Himma sees obligation as a

means to ensure peace and keep at bay a Hobbesian state of nature where in absence of laws

people are at war with each other. But the flaw I find with his assumption is that normativity

of law is only essential to keep the society motivated to oblige and concludes to say that legal

obligations are the only form of genuine obligations and are in complete alignment with

moral obligations hence blurring the very definitive line between the two.

As for Hans Kelsen the distinction between ‘ought’ and ‘is’ is what distinguishes obligation

from being and vice versa. He derives that a meaning that ‘is’ cannot be derived out of the

assumption that a meaning ‘ought’ to be and hence no command can be demanded out of

mere statements. majority of his thesis revolves around the niche understanding of how

obligation is simple by product of human will and not exclusive of the society and it’s

measures and therefore he asserts that the state or sovereign’s wish is enacted in legal

methodologies and further just a ledger of norms whereas on the contrary the society is in

essence the one laying the groundwork for formation of these laws. Kelsen in his work

bifurcates between permits, command and authority, how ought expressly conveys command

and later encompasses all the three. I find Kelsen’s argumentation to be the most in resonance
1
Himma 2020: 38; Jackson 1998.
with my understanding of obligation in jurisprudence and how validity of obligations and

duties take lead from the will of society and its entities.

H.L.A. Hart confers with the sources thesis and in his major work ‘the concept of law’

preserves the notion that obligations can be infact immoral, amoral and uncoerced and

unearths an argument that directs how moral obligations and legal obligations though fairly

disntinctive in their properties they bloom from the same genus. Hart believes obligations

walk hand in hand with social pressures and expectations of the society that no individual is

solely goverened by their own will but by a collective account of rights and wrongs, these

pressures could be psychological or physical sanctions, nonetheless both give rise to a sense

of obligation. for example a combination of physical and psychological sanction might look

like : Harsh is obliged to clear the civil services exam if he wants to be a part of the state

administrative force however one could presuppose the underlying cause saying incase Harsh

discharges any official duties without clearing his exam it would be culpable fraud and hence

open to penalisation and further being debarred from any future attempts, here the physical

sanction is the assertion of possible charges being pressed and psychological pressures being

that of disapproval in society and community isolation. Hart also speaks about how

obligations are very different from common social rules, it is one of the fragments of his

theory that I consort the most with since it holistically speaks of obligation but without the

attached assumption of commonality, obligations make the society a smoother functionary of

the larger state since it is considered of higher value in comparison to social rules. the social

rules none the less form the basis for obligations but it is the legal nuance in the obligation

that adds more credibility to it and morality that pressures the society to comply with it.

I personally applaud Hart’s understanding of obligation as a key to the start and end of

jurisprudence he further goes on to describe primary and secondary rules to understand

personal behaviour and it’s indirect relationship with power. “A bill passed by both houses of

Congress, not vetoed by the President, and not proscribed by the Constitution, is law.”2

to conclude my essay, I wish to narrate my own theory by ways of what I have learned and

opined from these theorists. I strongly believe that with each passing decade the meaning and

distinction of normativity has to change and parallelly the philosophy behind obligation and

its intricacies with morals and legalities but what remains poignant is their connection with

each other, in my humble opinion one cannot exist without the other and cannot be executed

or derived without each of their characteristics.

Thankyou.

2
Constitutional limitations on _legislative action complicate Hart's analysis.