Unit 1 - Introduction

By – Saransh Sharma
 What is jurisprudence?
• Difference between empirical question and a
philosophical question.
• Jurisprudence deals with metaphysical concepts.
• “Juris” – Law and “Prudence” – Wisdom
• It is the reason behind the law. It helps to
understand why the law is, how the law comes
into existence, the purpose that the law serves,
the essence of the law. (eg: Constitution)
• Jurisprudence is the method of study of law.
Various jurists had devised their own methods
and approaches towards studying the law.
• Origin of jurisprudence – It is believed that the
study of jurisprudence first started with
Roman jurists but it was confused with
morality but with renaissance, secularization
of ideas began and the growth of
jurisprudence began. Later on, John Austin
distinguished law and morality/theology.
 Nature of jurisprudence
• It seeks to find out the basic concepts of law.
(such as possession, legal personality, justice etc)
• It analyzes the current laws and sets the tone for
new laws/amendments etc.
• It is a product of jurists philosophy.
• It does not have practical utility but sets the tone
for legislative change.
• Jurisprudence binds the law to other fields like
psychology, politics, economics, sociology etc.
• Jurisprudence offers answers to multidimensional
legal questions. It helps in overall growth of society.
It enhances the capacity of the lawyer to justify
rational reasoning. It blesses or hastens a lawyer’s
skill with a sense of philosophy, ethics and morality
which helps them move forward in their discipline.
There are also occasions when there are loopholes in
the rules; Judges choose the path of Jurisprudence at
those periods. Jurisprudence is the theoretical
foundation of the law, and without it; it is not
possible to enforce the law in effect.
 Practical applicability or utility
• Jurisprudence doesn’t lay down the code of conduct
rather it is only the philosophy behind the law and is
not applicable upon practical situations.
• Jurisprudence doesn’t create rights and duties like
substantive law. It is the study of philosophy behind
various substantive and procedural laws.
• It helps in better understanding the law. It helps in
understanding the problems of law and suggests
change.
• Jurisprudence has its own intrinsic value. It educates a
person and gives them a feeling of self-enlightenment.
• The logical analysis of legal concepts sharpens
the logical technique of the lawyer.
• Jurisprudence trains the critical faculties of
students so that they can detect fallacies and
use accurate legal terms.
• For legislators, it provides precise and
unambiguous terminologies. Certain terms
like right, duty, possession, ownership etc. are
not required to be defined again and again.
• It helps lawyers and judges in ascertaining the
true construction of a statute by providing the
rules of interpretation.
 What is law?
• It is a body of rules which govern individuals.
• It is a set of rules that resolve conflict.
• It is a means through which justice can be
achieved.
• It is an instrument through which social
change can be brought about.
 Definition of law as per jurists
• John Austin – A rule laid down for the guidance
of an intelligent being by an intelligent being
having power over him.
• Hans Kelsen – law is an order of human behavior.
Order is a system of rules.
• Salmond – Law is a body of principles recognized
and applied by the State in the administration of
justice.
• Roscoe Pound – Law is a social institution to satisfy
social wants. (eg: freedom of speech)
*Social institution- Social institutions are the social
structure & machinery through which human society
organizes, directs & executes the multifarious
activities required to society for human need.

• Holland – Law is a general rule of external human

action enforced by a sovereign political authority.
 Definition of jurisprudence by jurists.
• John Austin – Jurisprudence is a philosophy of
positive law.
• Jurisprudence is not a moral philosophy but it
is a systematic study of actual law as
distinguished from moral or natural law.
• Thomas Holland – Jurisprudence is a formal
science of positive law.
• “formal science” not “material science” –
Material science is related to content of law
(eg: Art 21) but formal science is concerned
with the fundamental principles. (eg: liberty,
rule of law etc)
• Positive law as per Holland – General rule of
external human action enforced by a
sovereign political authority. (eg: Parliament
passing law and controlling action)
• John Salmond – Jurisprudence is the science of
law.
• “Law” here is civil law – law of the land or law of
the state. It is those rules which are applied by
courts in the administration of justice.
• He explained jurisprudence in two sense-
• 1. Generic jurisprudence – It consist of the entire
legal system/legal doctrines. In this sense,
jurisprudence is of 3 types-
a. Expository- Understanding law as it is.
b. Legal history- Understanding law by looking
into the history of law.
c. Science of legislation- what law ought to be.
• 2. Specific sense- Jurisprudence is the science
of the first principle of civil law.
• “first principle” are fundamental principles of
law which are the basis of civil law in different
countries.
• In this sense, jurisprudence can be divided in 3
sense-
a. Analytical jurisprudence- Law as it is.
b. Historical jurisprudence- How law
developed.
c. Ethical jurisprudence- What law ought to
be.
• Julius Stone – Jurisprudence is the lawyer’s
extraversion. It is the lawyer’s examination of the
precepts, ideas and techniques of the law in the
light derived from present knowledge in
disciplines other than the law. (eg: Psychology or
sociological affect of punishment on society)
• Dias and Hughes – Jurisprudence as any thought
or writing about law other than a technical
exposition of a branch of law itself.
Eg: A person writes a book on the impact of false
cases on the mind of the victim(person against
whom case was filed). This will be psychological
jurisprudence.
Eg: A writing on the impact of judicial activism on
society. This will be sociological jurisprudence.
 Legal positivism
• Are laws based on morality?
• “Posit” in positivism means that legal systems
are created by humans.
• Opposite of legal positivism is Natural law
theory.
• As per naturalist, laws are not only the
product of human creation but they are
product of human creation along with laws
created by divine.
• As per naturalist, unjust laws that humans create,
those are not laws at all.
• Positivism on the other hand, allows unjust laws
as all that is necessary for law is to meet some
conditions such as sovereign, command and
sanction.
• For positivist, there is no connection between law
and morals. (separation thesis) difference
between what law “is” and what law “ought to
be”.
• It rejects a priori method(knowledge from
experience). This school focuses on obtaining
knowledge through observation.
 John Austin (1790-1856)
• 19th Century British philosopher.
• Professor of jurisprudence at
University in London.
• Founder of analytical school.
• Father of English jurisprudence.
• Very much influenced by the work of
Jeremy Bentham.
• Notable work- The province of
jurisprudence defined in 1832.
 Austin’s theory of law
• Law is the command of the sovereign backed
by sanctions.
• 4 important elements of positive law as per
Austin-
a) Command
b) Duty
c) Sanction
d) Sovereign
 Command as per Austin
• Command (code of conduct) is a wish or desire of
another(sovereign) that he shall do or forbear from
doing a particular act coupled with the intention that in
case, he does not comply with them, he will be visited
with certain evil consequences(punishment-
imprisonment, fine etc)
• Command for Austin is psychologized – meaning
compliance because of fear.
• 2 inseparable components of command-
a) Duty – Obligation
b) Sanction- Evil that results from non-compliance.
• Types of command-
a. General command/law or rule- applicable to all.
b. Particular command or occasional command-
applicable to some. (eg – teacher commands students
to come early to college for moot courts)
 Command Exception
• Declaratory laws- Laws that explains or
interpret the provisions of a law that is already
in force.
• Repealing laws- Laws that repeal existing laws.
• Imperfect laws- Laws that create imperfect
obligations. (eg: Govt promising farmers loan
without an obligation to repay or a law that
says that if you lost your job in Covid then
such person shall receive rs. 100 per day.)
 Sovereign as per Austin
• If a determinate human superior, not in the habit
of obedience to a like superior, receives habitual
obedience from the bulk of a given society, that
determinate superior is sovereign in that society.
This society would be political and independent.
• Characteristics of sovereign-
a. Permanent obedience.
b. Supreme.
c. Common to entire society. (Judges are not a
part of sovereign as per Austin)
• Sovereign must be indivisible(sovereignty cannot
be divided), unlimited powers and continuous.
 Classification of law

Eg of Positive morality – International law. His explanation for

classifying International law as positive morality is that all
countries are sovereign and they have come together. There is no
sovereign above the countries. Also, there is no evil consequence
for not following(lack of sanction)
 Critique of Austin
• Dias - His theory works well for criminal law majority of
laws are neither command nor forbid acts (right to
vote/making wills etc)
• Salmond – The purpose of law is justice but Austin’s
theory doesn’t talk of justice at all.
• Austin also ignored customs. As per him, customs is
not law.
• Olivecrona – There is an overemphasis on command
but law is also the general will of the people.
• Lord Bryce – There are other ways in which obedience
can be secured but Austin doesn’t talk about them.
Force is the last resort.
What’s the right thing to do?
 Utilitarianism
• It is a moral theory. It answers which actions
are morally good and which are morally bad?
• The principle of utility states that moral
rightness or wrongness of actions depends
upon the effect that those actions have on
happiness.
• It doesn’t taken into account the intention
behind doing an act or “means”.
• Utilitarianism- (answers what is the right thing to do?)
The theory that we are morally required to do whatever produces the
greatest total of pleasure minus pain. Total for everyone.
• Hedonism- Answers what is good for an individual as an end?
The theory that what is good for each of us as an end is pleasure and what
is bad for each of us as an end is pain.
Means vs ends – What is money good for? What is pleasure good for?
• Aggregation – Answers what makes an outcome good?
The theory that an outcome is better if the sum of what is good for each
person minus what is bad for each person is greater. It says you add. Eg:
there are 5 people, A get 5, B gets 3, C get 2, D gets 6 and E gets -2. You
know that D gets most and E gets least(good/bad for each individual) but if
you wanna know what’s good as an outcome, you add. Total is 14. You can
compare it to 5 people where each gets 2. Which one yields better
outcome?
• Consequentialism- Answers what should we do? (answers same question as
utilitarianism)
The theory that we are morally required to do what produces the best
outcome.
This theory is a vague version of utilitarianism.
Eg: Every morning you have a choice either to attend class or sleep some
more. Consequentialism says that all that matters is what is the results of
your action. If you don’t get debarred and you don’t understand in the class
then maybe the best outcome is to sleep in.
• However, if you closely see the definition of
consequentialism, it doesn’t say what is the
best outcome.
• What’s the best outcome? Answer is
aggregation. But in aggregation what is the
thing that we add? We add the goodness and
badness of each person. This takes us to
Hedonism. Hedonism takes of pleasure and
pain determines good and bad.
If you combine all three, you get utilitarianism.
Hedonic Calculus/ Felicific calculus
• 7 factors to measure-
1. Intensity (strong)
2. Duration (how long)
3. Certainty (how likely)
4. Propinquity (How soon)
5.Fecundity (Does it lead to additional pleasures)
6. Purity (will it lead to feeling of opposite kind)
7. Extent (the number of people that can
experience it)
• When Jeremy Bentham introduced the principle of utility, it
was referred to as “classical utilitarianism” or “act
utilitarianism” which is, “in a given situation, you should
choose the action that produces the greatest good for the
greatest number”
• Example of surgeon.
• “Rule utilitarianism”(J.S Mill) is the version of the theory
that says that we ought to live by the rules that, in general,
are likely to lead to the greatest good for the greatest
number.
• Rule utilitarianism wants us to think long term.
• “A whole society where innocent people are taken off the
street to be harvested for their organs is going to have a lot
less utility than one where you don’t have to live in a
constant fear of that happening to you”
• Rule utilitarianism, therefore, allows us to refrain from acts
that might maximize utility in the short run, and instead
follow rules that will maximize utility for the majority of
time.
 Jeremy Bentham (1748-1832)
• Born in London.
• He was a lawyer but never practiced.
• He was a social reformer. He was
interested in ways to reform the legal
system and law on rational lines.
• He was the founder of legal positivism.
He was Austin’s intellectual god father
from who Austin borrowed a lot.
• Work: Of laws in general, Introduction to
the principles of morals and legislation,
The limit of jurisprudence defined, A
fragment on government.
 Bentham’s concept of law
• Like Austin, Bentham also advocated for an imperative
theory of law in which key concepts are those of sovereign
and command. Sanctions, however, didn’t play a big role in
his theory.
• Bentham was a utilitarian and as per him, the end of
legislation is the greatest happiness for the greatest
number.
• He defined utility as the property or the tendency of a thing
to prevent some evil or to produce some good.
• As per him, the purpose of law is to bring pleasure and
avoid pain. Pleasure and pain are the ultimate standards on
which a law should be judged. The consideration of justice
and morality disappears from this approach.
 Sovereign as per Bentham
• Any person or assemblage of persons to whose
will a whole political community are supposed to
be in a disposition to pay obedience and that in
preference to the will of any other person.
• As opposed to Austin, Bentham’s sovereign can
be either single person or group of people and
power can also be limited and divisible.
• Bentham was an enemy of judge made law and
as per him, a law should be complete in
expression, in connection and in design.
 Sanctions
• Sanctions play a less important role in Bentham’s
theory.
• As regards the force of law. A law is dependent
upon motivations for obedience. The command is
supported by a sanction, but that sanction can be
physical, political, religious and moral
motivations, comprising threats and rewards.
• As per him, even rewards can be assigned to a
law which required people to do or to forbear
from doing something.
 Bentham’s jurisprudence
• Bentham divided jurisprudence into 2
categories-
• 1. Expository- It ascertains what law is
This is further divided into 2-
a) Authoritative- When legislator represents
what the state of law is.
B) Unauthoritative- When any other person
represents what law is.
• 2. Censorial- What law ought to be.
 Criticism
• Thought exercise – Trolley example.
• His theory presumes that an individual has
sufficient time, information and knowledge to
calculate the consequences of an act, evaluate
their worth and make comparison with other
alternative acts before taking actions.
• Karl Marx criticized utilitarianism on the grounds
that the principle failed to afford attention to the
phenomenon that people from different
socioeconomic context perceive joy differently.
 Hans Kelsen (1881-1973)
• Austrian Jurist
• Author of 1920 Austrian Constitution
which is to an extent still valid today.
• Due to rise of totalitarianism in Austria,
he left for Germany but soon had to
leave because of his Jewish ancestry.
• He went to Geneva and then US where
his reputation was already established
for his pure theory of law.
• Notable work: Pure theory of law (1934)
• Why does certain norm or law belong to a
certain legal system?
• Why is a norm valid and what are the reasons
for its validity?

Example: A law in India is a norm in Indian

society, the same norm may not be accepted
as a law in US or Bangladesh, why is that?
 Pure theory of law
• Kelsen proposed “pure theory of law”, that is, a
theory which is free from social, historical,
political, morality, psychological etc influences
and is logically self-supporting.
• This theory excludes everything which is strictly
not law.
• As per him, law should be uniform for everyone
at all time and all places, hence, law should be
devoid of other aspects as it is these other
aspects because of which law becomes
subjective.
 Normative theory
• Hans Kelsen’s theory is also called normative
theory.
• He stated that law is a normative science and
not natural science.
• Descriptive v/s normative – Descriptive means
how things are (law of gravity – 2 masses
attract each other), normative means how
things ought to be (how law should be)
• Kelsen drew a distinction between propositions of
law(normative theory) and those of science. Proposition of
science deals with what necessarily happens while
proposition of law deal with what ought to happen. (eg: If A
commits theft, then he ought to be punished. Whether he
gets punished or not is different, but he ought to get
punished)
• Legal norms form a ‘normative system’ which requires that
individuals conform to the modes of behavior stated in
each of these norms, i.e an ‘ought’ proposition.
• Legal oughts are backed by sanctions. Here he agrees with
Austin but he disagrees with explanation. As per Austin, law
is command backed by sanctions. However, Kelsen talks
about de-psychologised commands meaning that people
do not follow laws because of fear of punishment rather,
they follow because they themselves feel compelled to
follow. (eg: People don’t commit murder not because of
punishment but because they don’t want to)
 Hierarchy of norms
• A valid norm is one which is binding, meaning that the
people ought to act in accordance with the norm.
• Only a ‘competent authority’ can create valid norms,
and that competence is itself based on a norm that
authorizes the creation of norms.
He rejected the idea that sovereign is from which law
derives its validity rather there is a basic norm which
provides validity to legal norms.
• If norms must be validated by other higher norms then
we seem to have infinite norms going down but there
will be one norm from which all others have originated
and created a hierarchy. That one norm, basic to all
other norms is basic norm or grundnorm.
 Grundnorm
• This grundnorm may not be the same in every legal
system but it is also always there. For India, it could be
Indian Constitution but for countries that do not have a
written constitution, it could be something else. (Such
as UK in which case social behavior is to be scrutinized)
• The grundnorm is the initial norm upon which the
whole legal system rests.
• Grundnorm is said to be accepted when it has secured
for itself a minimum of effectiveness. That happens
when a certain number of people are willing to abide
by it. There mustn’t be total disregard of grundnorm
but there need not be universal adherence to it.
• When grundnorm ceases to derive a minimum of
support, it ceases to be the basis of the legal order and
is replaced by some other grundnorm which obtains
the support of the people.
 Criticism of Kelsen’s theory
• He excludes social facts and needs of the society. His
theory of law is without sociological foundation.
• Kelsen asserts that all norms expect grundnorm is pure
but it is illogical how grundnorm is outcome of
sociological and political factors but subsequent norms
derived out of grundnorm can be pure.
• HLA Hart- His theory is not practical as law cannot be
divorced from sociological, psychological impacts.
 HLA Hart
• Question: If we were to create a society with
legal rules, what kind of rules will we put
together?
• Do people follow laws only because there is
punishment attached to it?
 HLA Hart (1907-1992)
• English legal philosopher
• He was the professor of
jurisprudence at Oxford
University.
• His most famous work is – The
Concept of law(1961) which has
been hailed as the “most
important work of legal
philosophy written in the
twentieth century”
 Law
• According to Hart, “Law consist of rules which are of broad
application and non-optional character, but which are at
the same time amendable to formalization, legislation and
adjudication.”
• He said that law is a system of social rules(rules sprung
from social pressure) which acquire character of legal rules.
• As per him, law prescribes, not a command, but a standard
of conduct. This standard is adhered to not only because
there is a sense of obligation(duty) to adhere to it, but also
because there is an expectation that others have the same
obligation to adhere to it, that is, law is internalized(people
have accepted the law).
Thus, law is concerned with obligation rather than
coercion. (eg: following traffic rules at night when there are
no cops in sight)
Difference between social rules and social habits
• Social habit and social rule- Eg: Mom and friends going for a
morning walk everyday at 6AM is social habit, on the other
hand, throwing garbage in the garbage bin is a social rule.
• Similarity- A general behavior exists which is repeated by most
people in the group.
• Difference-
Social habit- For social habit to exist, only requirement is of a
common behavior. If in case there is a deviation from it, it
wouldn’t be considered a fault nor would there be a criticism.
Also, it only has an external aspect.
Social rule- Like social habit, common behavior would exist in
social rule as well but in case of deviation there will be
criticism and the act would be considered a fault. Social rule
has an external as well as an internal aspect.
• Internal vs external aspect of law- eg: There’s a person
who has come from a tribal area. He observes that
when the traffic light turns red the cars stop and
people cross the road. He doesn’t know the law but by
observation he follows them. External point of view is
based on “observable regularities of conduct,
predictions, probabilities, and signs”.
On the other hand, a native of that place knows what
the traffic rules are and follows them. Here, the native
has a sense of obligation to follow rules. If the native
walks while there is a red light, people would criticize
him. In internal aspect, individuals see the rules as
general standards and follow them. The internal
aspect is the practical attitude of rule acceptance.
It does not suggest that people accept their moral
legitimacy, but only that they are willing to guide,
and evaluate their conduct according to the rules.
• Internal aspect of social rule – Everyone in
the society must have a critical reflective
attitude towards the rule.
The social rule that exist in the society must
be accepted as a general standard of conduct
and there must be a willingness to follow this
rule and also, this general standard would
help people to ascertain whether their actions
are valid or invalid. It would also help in
ascertaining the rightfulness or wrongfulness
of the actions of others.
 Rule that constitute obligation
• Rules that constitute obligations are divided
into two parts-
1. Moral code of society- There is a demand
and pressure from society to follow it. In case
of violation, there is a hostile reaction. Here
the obligation is moral obligation. (eg: Making
insensitive jokes on women, religion etc)

2. Rule as law- Where the violation would lead

to physical sanction. Obligation in these rules
are legal obligations.
 Primary and secondary rules
• Primary rules- rules that regulate the conduct of the
people. Mostly duty imposing rule. (eg: IPC)
• Secondary rules- lays down the way in which primary rules
are created, altered and enforced. These are the rules
about rules.
• In order for a system of rules to be a legal system, there
must exists both primary and secondary rules. Both of
these rules are necessary.
• Hart explains this by laying down a hypothetical example
where there are only primary rules. This system will run
into 3 kinds of defects and for all these defects there is a
remedy in the form of secondary rule. Secondary rules
developed as a solution to the defects.
 Primary rules
• Hart gives example of etiquettes(which knife
to use, how to dress at events, how to greet
people etc). Rules of etiquettes are primary
rules. Another example is of gendered rules of
dress. There was a time when women were
frowned upon(by etiquettes) when they wore
jeans. These were just rules that people
accepted. This was not written, nor can they
be changed easily as it involved changing the
whole mindset which takes a lot of time.
 Defects
• 1. Uncertainty- "if doubts arise as to what the rules are
or as to the precise scope of some given rule, there will
be no procedure for settling this doubt, either by
reference to an authoritative text or to an official
whose declarations on this point are authoritative”
Eg: Parking in one’s spot in a society. If you have
multiple cars then you park behind your own. But then
they construct an opening to the ground.
• If a dispute arise as to whether you can park your car in
the ground also or do we follow the previous rule.
There is no systematic way to resolve this dispute.
Same applies to the example to rule of etiquette. There
is uncertainty about what the rules are
• 2. System of primary rule is static- “the only
mode of change in the rules known to such a
society will be the slow process of growth,
whereby courses of conduct once becomes first
habitual or usual, and then obligatory, and the
converse process of decay when deviations once
severely dealt with, are first tolerated and then
passed unnoticed.”
• If you merely have primary rules then the rules
can change only when you get everyone to agree
on a new set of rules and as a result, change in
rule would occur slowly. Eg: Gendered rule of
dress/jeans.
• 3. Inefficiency- “disputes as to whether an
admitted rule has or has not been violated will
occur and will, in any but the smallest societies
continue interminably, if there is no agency
specifically empowered to ascertain finally and
authoritatively, the fact of violation”
• Even if we know what the rules are and we don’t
want to change them but then there is an
accusation that someone parked their car in
someone else’s spot late at night and left early
morning but the person accused of denies it then
there is no way of adjudication. There is
inefficiency in determining whether the rules
were violated.
 Secondary rules
• As per Hart, there are specific kinds of secondary rules
that are going to naturally arise to remedy those 3
defects. The remedy for each one is a type of
secondary rule.
• 1. Uncertainty- Rule of recognition – A secondary rule
that says what shall be done in order for a rule to be
law or if there’s dispute then a judge can decide what
the law is. These are power conferring rules. For Hart,
these are the most important secondary rule.
• 2. Static- Rules of change – Secondary rules about how
to change rules.
• 3. Inefficiency- Rules of adjudication- Secondary rules
about rules which confer powers to adjudicate a
dispute. (eg: who will judge, what evidence will be
used etc)
 Rule of recognition
• It is a test of legal validity.
• It is the fundamental, foundational rule.
• It is the rule that sets out the criteria for legal validity for all the other
rules in the system.
• It’s the bedrock of the entire legal system.
• Where does rule of recognition gets it’s existence? – Rule of recognition is
a social rule. It comes directly from the people.
Eg: When we go to the court premises, even if we don’t have a case we
wear black and white. If we happen to go in casuals, people look at you
and question you. What makes it a case that there is a rule like that? It’s
just that enough people buy into those rules. When they see someone in
casuals, they think this is not how an advocate should come to a court.
The social rule is made by the internal aspect.
• Difference between grundnorm and rule of recognition(RoR)- Hart’s RoR
tells us when a rule is legal. The RoR has the content it does because of
the practices of individuals in the legal system. Legal validity reduce to
social facts. On the other hand, Kelsen’s grundnorm is a pre-supposition. It
is an assumption of the validity of the highest norm in the legal system.
Kelsen does not reduce legal facts to any other facts.
 Criticism by Dworkin
• Ronald Dworkin- Dworkin criticized Hart’s rule of adjudication.
Adjudication is either in the way of formalism(applying law to facts) or
extreme realism(judges do what they want). Hart finds a middle ground
between them with the idea that often times words have meanings which
are vague. Eg: No vehicles in park. What would you call a vehicle? Are
skates vehicle?
These cases are hard cases and here the judges follow realism but for easy
cases, judges follow formalism. Here, the judges are legislating.
• His criticism is that Hart’s theory fails to take into account what he calls
“principles”
Rules v/s Principles- Rules apply in all or nothing fashion. Eg: in Cricket if
you hit the wicket, you’re out.
Principles, on the other hand, doesn’t necessarily apply. Eg: Person out on
bail goes outside state and win money in gambling. A principle may say
that you shouldn’t profit from your wrong but in this case he does.
• For Dworkin, principles are part of legal system but Rule of recognition
does not acknowledge it.
• Also, Dworkin criticizes that in hard cases, the judges have discretion. He
says that it is unjust since they were not elected and that they get
punished for doing things that we not exactly illegal when they did it.
 Other criticism
• Another criticism is that RoR checks validity of
Primary rules but rules of recognition’s validity
cannot be checked. How can one know
whether the rule is valid or not?
• Dividing the rules only in primary and
secondary is over-simplification of law.
 Classical schools of jurisprudence
Hindu legal theory.
• Meaning of Dharma or law- In Hindu legal works, the
equivalent word for law is ‘dharma’. The literal
meaning of Dharma is that which sustains or upholds.
However, the term has a wider meaning.
• Dharma- ‘Dharma’ embodies the present notion of law
as well. Although it must be admitted that the notion
‘dharma’ implies much more than what law connotes
and is used in various other senses such as function,
nature, duty or right rule of conduct, it is in fact one of
the most outstanding notion of Indian embodies in its
meaning what may be called law in its widest sense
including the functions of legal order.
 Law as Rit
• Ideas and thinking about law is traceable since
very early Vedic times. Even in the early Vedic
period there were some philosophical ideas of
law. There are attempts to determine the nature
of law, and find out what law is. They conceived
of law as Rit. Rit, the cosmic or eternal law is all
pervading and omnipotent from which creation
sprang and by which its life was regulated and
upheld. It is the organized principles of the
Universe, as also the divine ordering of earthly
life. It operates in the material as well as moral
and spiritual field.
 Law and State
• According to Upnishads, the State originated in heaven as a
result of a contract. The human society was ordained by
the divine power though it was modelled on the
contractual society of the gods. Thus, State arises from
contract. It’s object is to promote security and self
sufficiency of all its members and to ensure the satisfaction
of the needs and supply of convenience of life.
• The law was created for this purpose. One great function of
the State is to enforce the observation of law. Thus, the law
is superior to the State.
• Hindu law has always been independent of the State.
According to the ancient Hindu views, law was not an
emanation from the State but was above it. It was a
fundamental social phenomenon expressing the mechanics
of social force in a community where with its help; it was
possible even for weaker to rule the stronger.
 Theory about the origin of law
• According to the Hindu theory, origin of law is divine.
• The Hindu jurists conceived of law as derived from some positive
revelation of the deity, the revelation itself being the outcome of
the divine reason. This divine reason is not arbitrary. Justice is
identical with the divine reason, with the divine nature and
essence, which being eternal and immutable, excludes all ideas of
arbitrariness. Law is discoverable by reason because of will of god
and human reason coincide. Several sources of law were laid down
on the basis of this principle.
• Smritikars laid down four sources of law, that is, Veda, Smriti,
Sadachar and self-satisfaction. Smritis are believed to contain the
revelations as recollected by the Rishis.
• Customs- Smritikars urged for the recognition of usage. In fact, on
the matter not covered by the Smritis, customs were to supplement
the law given in them. It was on the basis of the importance of
customs by Smritikars, that the Privy council observed, “Under the
Hindu system of law, clear proof of usage will outweigh the written
text of the law” – Collector of Madura vs. Mootoo Ramlinga (1868)
 Conception of law
• Ideas about law are traceable since the early Vedic times. In Rig
Veda, we find conscious thinking about law.
• According to Manu, law is an order of human behaviour. This
ordering of human relations is absolutely valid and just because it
emanated from the will of God, and because it has regulated the
behaviour of men, in a way satisfactory to all. The right and duties
of man, established by this law, are innate or inborn in him, because
they are implanted by nature and not imposed from outside.
• End of law- As early as Upanishdic period, there is a conscious
thinking about the end of law. It is exist to satisfy the paramount
social need of general security. They seem to think of ensuring the
general security mediately through the security of existing social
institution. This meant the preservation of social status quo.
 Law and Equality
• Manu’s theory of Equality- Manu proclaimed equality.
But according to him, equality did not mean exact
sameness. Each has individually a worth which is
equally to be respected in human relations. Equality of
men, according to him, is the recognition of an equal
protection for the worth of each man. He emphasised
solidarity through division of labour. This could not fail
to produce the desired effects.
• The more men differ one from another in this world,
the greater becomes the mutual usefulness, and there
comes a better understanding of the fact that
individual activities, through different, are
nevertheless, socially equal, since they all contribute to
social solidarity. This was also the explanation given in
the Upnishads as to the creation of different
Varnas(caste) in the society. Division of labour is at
once the element of solidarity.
 Administration of justice
• According to Hindu theory, the administration of justice is
considered to be one of the essential function of the State.
The judicial system was based on the idea that the
justification for the existence of the State lies in its
maintaining Dharma and justice to the people. The end of
law was to promote the welfare of man, both individually
and collectively.
• The aim of administration of justice were to supress the
anti-social elements, to create conditions for the smooth
running of the society and to safeguard the interest of
individual.
• To ensure speedy, cheap and free from procedural
technicalities, justice, family corporations, communities
and professional associations were given authority to
administer justice. The rules of procedure and evidence
were so formulated as to ensure real justice to people.
 Islamic school of jurisprudence
• Muslim law is derived from divine. The primary source of
Muslim law is Sharia. Sharia law is Islam’s legitimate
framework. It is gotten from both the Quran(Islam’s focal
content) and fatwas(the decisions of Islamic researchers).
• Sharia law goes about as a code for living that all Muslims
ought to cling to, including petitions, fasting and gifts to
poor people.
• It plans to assist Muslims with seeing how they should
lead each part of their lives as indicated by God’s desires.
The divine communicate to Mohammad prophet who
prescribe Quran, so the Quran is the foremost primary
source of Muslim.
 Sunna
• “Sunna” is Arabic term for the prophet Muhammad’s way of life and
legal precedent.
• It means ‘trodden path”. It indicates a practice and point of
reference.
• Where the words of the God could not support authority for a given
rule of law, ‘prophet’s own words’ were treated as an authority
because it is believed that even his own saying derived inspiration
from God. Whatever the Prophet said or did without reference to
God, is treated as his tradition.
• In Islam, it is believed that the revelation by God to Prophet were of
two kinds-
1. Manifest(Zahir)
2. Internal(Batin)
• Manifest or express revelation were the words of the God and came
to the Prophet through the Angel Gabriel.
• The Internal or implied revelation are ‘Prophet’s own words’
inspired by God. Such internal revelation formed part of Sunna.
Thus, Quran is the language of the God and Sunnah is the language
of the prophet inspired by God.
 Ijma
• The ijma' , or consensus amongst Muslim jurists on a
particular legal issue, constitutes the third source of Islamic
law. Muslim jurists provide many verses of the Quran that
legitimize ijma as a source of legislation.
• In history, it has been the most important factor in defining
the meaning of the other sources and thus in formulating the
doctrine and practice of the Muslim community. This is so
because ijma' represents the unanimous agreement of
Muslims on a regulation or law at any given time.
 Qiyas
• Qiyas or analogical deduction is the fourth source of
Sharia for the Sunni jurisprudence.
• Qiyas is the process of legal deduction according to
which the jurist, confronted with an unprecedented
case, bases his or her argument on the logic used in the
Quran and Sunnah. Qiyas must not be based on
arbitrary judgment, but rather be firmly rooted in the
primary sources.