COMPARITIVE PUBLIC LAW

DATE:17-08-21
Wednesday and Thursday :3 to 5 PM
A. SUBJECT
1. Study as whole.
2. Who should be legislators?
3. What is meant by “LAW”?
ARS AQUI ET BONI: -law of art and goodness. (SUCH DEF. won’t help in understanding.)
4. Comparative public law to be understood from positive law perspective.
5. An ADMINISTRATIVE LAW.
6. Study of different jurisdictions public law.
7. Research and not a subject.
8. Comparing laws of various countries and taking a country’s law as base.
9. Importance
10. Work of Indian judiciary by various landmark judgement.
11. Still a developing law
12.

B. PUBLIC LAW
1. Legal Relation btw state and individual.
2. RES PUBLICA (roman term)
3. What is state?
Many a time not differentiated by govt.
4. State not able to protect interest of an individual.
5.

C.NEED TO STUDY
1. Evolving
2. As globalization on rise
3. Same issues in various societies.
4. Studying the history

D.IDEOLOGIES
 Constitutional nationalism
emerged from own behavior-document- constitution
Nationalism-don’t believe in comparative study
as each nation issues are influenced by various factors of a country.
 Constitutional cosmopolitanism
 Though separated- linked- same issue which is tackled- such solution could be adapted by
another.
 Proupounders:
 UNITY IN MIDST OF DIVERSITY.

E. SIGNIFICANCE
DATE: - 25-08-21
 ORIGIN, CONCEPT OF PUBLIC LAW
DEFINTION: -
1. HOLLAND:
2. SALMOND: study of resemblances and differences of different legal systems.
3. GUTTERIDGE:

HISTORICAL BACKGROUND:
RES PUBLICA: a public thing-welfare of general public- roman concept- public law could be
traced back to res publica.
Public- will be on Resources(territory), is population and for their spiritual values (liberty and
HR).
1. Religion was given superiority- ancient times

2. King are superior – medieval times

PUBLIC LAW AND STATE

1. Invention of state changed law and completely, revolutionized public and private law.
2. State- earlier within in hands of private persons.
3. Domestic public law came first- was exploited by people in power- need of comparing public
law emerged.

FUNDAMENTALS OF PUBLIC LAW

Look into the who will fulfill the res publica– given by the state.
1. Adam smith- liberty concept- sovereign (who has power) has three duties.
a. Duty of protecting the society by violence -sovereign himself not committing violence and
protecting from outside force.
b. Duty to protect from injustice and oppression- each and every member of society- from other
members- system of law of administration and rule of procedure
c. Erecting and maintaining public work and institutions- to develop the territory and advance
and impart knowledge the people- necessity for state to provide which market doesn’t
provide.

FOUR FOUNDATINS DISCIPLINES OF PUBLIC LAW

1. CONSTITUTIONAL
2. ADMINISTRATIVE (both civil and criminal law)
3. FINANCIAL
4. RULE OF PROCEDURE
BASIC OF FOUNDATION OF RES PUBLICA
Laws which punish felonies against state and society
Special jurisdictions- created- to adjudicate such felonies.
 Example- 1960s- special courts in France- to adjudicate terrorists’ felonies.
PIL- resorted when no law in domestic public law, otherwise not.

NATURE OF PUBLIC LAW

1. Dynamic and everchanging- nature of law as well as that of the state
TYPES/ METHODS OF COMPARISONS

1. MICRO COMPARISON 1. MACRO COMPARISION

There is no need for preparation. A person No comparison is possible w/o prior preparation
who is specialist in system of one own and thoroughly understanding fundamentals.
country then such person is capable of Expected from the researcher to develop a new
comparing other system country set of criteria to understand other countries legal
system.
Example: - USA each state has own law. A Example: - a country (India) having democracy
lawyer of USA who have knowledge of or other country (Afghanistan) having Islamic
basic US laws is capable of micro law
comparison
All countries having common legal pattern For countries following different ideologies.
of system or having common ideologies.
Juris from France, Russia
Western juris- required to understand the rules of
religion handed down by the ancestors. As,
citizen behavior is governed by rituals handed
down by ancestors and ensure approval of
society.
CONCLUSIONS: Individual legal system, Legal systems compared of countries based on
judgements and comparing with identical different ideologies.

INTRODUCTION OF LAW
Jurisprudence (knowledge of law) subject matter is law.
Definition of law:
1. Cicero
2. Roscoe Pound
3. Austin
4. Blackstone
5. Salmond- body of principle recognized and applied by state in administration of justice.
WHAT IS LAW?
 What is good or bad law?
On whom law will be applicable?
WHAT IS AUTHORITY BEHIND LAW?
HART: being a lawyer and philosopher- one has to understand different aspect of law, to
understand what is law?
Law- societal norms- regulate behavior-
SCHOOLS OF JURISPRUDENCE
1. NATURAL- standards of the law developed by other sources than any political- derived from
moral standards- utilized to either to safeguard a change
Idea of rule of law- built up on natural law.
unchangeable and eternal -outcome of preachers – divine law or order of God forced upon man-
custom based law and of universal nature- supporters contain that thoughts of justice, liberty,
good, bad, were evolved from natural law i.e., idea of man- man doesn’t makes law but only
discovers the law. Example- shruti’s, smritis, Quran.
a. HERACLITUS- three principles- destiny, order and reason- Reason is a basic component of
natural law
b. SOCRATES- man recognizes good and bad
c. ARISTOTLE- man- part of creature of good and possess reason awareness by which he can
form the will- law should be amended rather than being broken
d. ROMAN – three divisions:
Jus civile Jus naturalis Jus gentium
By people Both jus combined Romans and foreigners
e. INDIANS- HINDU legal system most old- comprehensive and reasoned structure- king to
execute and bound by law- shruti and smriti
f. MEDIVAL PERIOD- THOMAS ACQUINAS- law is as an ordinance of reason for common
good produced by whom
Law of God- to be Natural law disclosed Positive
interpreted by church through reason law

g. HUGO GROTIOUS- ruler to follow natural law and people to follow ruler and never disobey
it.
h. STAMMLER- Two principles – law should be an entity which unified everyone’s objective.
i. KOLHER- Internal impulse to obey for his betterment and follow decent type of law and no
compulsion- moral and immoral not to be in some books- revolution of should have been in
such a way which will advance any society on principles of morality and culture.
j.
k.
DATE: - 26-08-21
2. NATURAL LAW THEORY-law is dictate of reason- essential nature of universe and can be
discovered through reason- certain objectives and absolute principles of morality and justice-
FOUNDER: ARISTOTLE- THIS theory fails short because of lack of contemporariness and
the idealness it comprises of. – lex injustiae Non Est lex: unjust law is no law
USE- rejects ethical relativism- ethical relativism rejects and targeted morality as history
and convenience of society. But, natural law morality gives absolute value to life.
 Promises to find common moral grounds in different society- essential feature of human
is reason and THUS, he will decide by reason what a law will be, ought to be, or law is.
HOBBES AND JOHN LOCKE-later period used natural law for deciding rights and
freedoms
CRITICISMS: a) confuses natural law and morality with scientific values. Morality not
outcome of unlike scientific values.
b) believes in universal principle of morality.
c) difficulty in maintaining unchangeable and eternal of principles.
Significance to study this theory- natural law is at higher pedestal than that of positive
law.
REFLECTIONS- two principles unchanged in current application of this theory a)
doctrine of equality; b) doctrine of rights
How unchanged?
a. Principle of universal order- Art.14 constitution (equality is interlinked with justice and
morality)
b. Ineligible Rights of an individual (Doctrine of equality): such rights are human-
unchangeable- state can abrogated or suspended but can’t take away- fundamental and
unchangeable- UDHR,1948.
UK-MAGNA CARTA, bill of rights,
USA- American declaration of rights,1776, Virginia declaration of rights. In 1791,
bill of rights- similar with UK bill and had close nexus- various amendments.
MARBURY vs. MADISON, HELD: any congressional legislation abridges rights
than liable to be declared unconstitutional. Thus, constitution is the law. –
JUDICIAL REVIEW
Justice coke- Bowman’s case- law by parliament found in contrary to moral
principles of rights of individual. Despite parliament being supreme this court can
declare such law as illegal and invalid.
INDIA- Golaknath’s case, A.K Gopalan case and Maneka Gandhi case (an instance
that what is there and what ought to be their), Keshvananda Bharti case (Basic
structure theory).

DATE: 02-08-21

3. AUSTANIAN THEORY- LEGAL POSITIVISM

 Complete opposite of natural theory- forceful theory
 Features of any particular law
a) command,
b) sovereign,
c) sanction- law not obeyed, then punishment
- POSTIVISM- law made in the form of regulations, as per need of society for
social order. On the other hand, there was no source of morality
 law as it is – positivism developed due to uncertainty of natural law theory
 hardcore positivist
 in 1832, Austin in paper- said existence of law is one thing and its merits and demerits are
another- comment of Blackstone ------ Austin assented with Blackstone. Hart commented
that assent of Austin leads to confusion and he isn’t taking a stand of his theory.
 this theory developed as a reaction against natural law - positivist accepted some role of
morality – subsequently, Austin as well accepted it.
 Bentham- also, not denying morality- said that exercise of sovereign should be conditioned
or limited, i.e., sovereign should not be the superior absolute. Whereas, Austin branded
constitution as positive morality.
 Prof. Hart, a contemporary positivist- gave 5 characteristics--- a) law is command of human
b) law and morality to be distinguished but to be based on morality.
 c) law should not be based on any enquiry and should be as it is
d) law is closed logical system. – example, A.K. Gopalan case – they read the law
it is and ignored to read the word “DUE”. In Maneka case read the word “due”.
e) statement of fact could be verified, not statement of morality
 how to determine law is reasonable and unreasonable
 Austin again came up with analytical positivism- wherein he pointed out certain
characteristics
a) Basic objective of positivism is to determine certainty and predictability.
b) To provide scientific study of legal principles/system as well as of laws.
c) Source of law should be clear, tangible and certain. – state is source of law
having sovereign law-making power
d) Element of sanction is and essential component of law. – introduced new state
of punishment and realm of sanction.
e) Bindness of laws- emanates from the state.
 Developed characteristics of law- Austin
a) law - command backed by sanction(and not a request, will, desire) of sovereign
obeyed by political organized society and it is in habit of obeying laws- duty
being a legal duty and thus, a positive duty. – even sovereign has to obey these
laws, and can’t take benefit that sovereign can’t do any wrong.
b) Sovereign- superior, competent, legal authority.
not subordinate- individual or group of individuals- and no law can revoke it.
Two connotations- POSITIVE, people under duty to obey him; NEGATIVE, he
himself not obeying
4 attributes of sovereign: -
 Illimitable- no limitation (article 13, doctrine of basic structure- puts a limitation upon law-
making body i.e., parliament)
 Not subordinate
 Unique- sovereign has to be one and only one
 United- all powers to vest and be discharged by only one individual or a single body-
sovereign is uncommanded commander and no authority to direct him
 in Indian constitution, we follow separation of powers- but not strictly. Constitution is
supreme, but based upon some sound principles.
 Positive law- ruled out custom, morals, usage and rules out law’s source is human command.
– law should be general in nature and people are in habit of obedience.
 Austin POV, to apply on criminal laws, unlike law of contract, marriage laws.
 CONCLUSION: can’t accept Austin theory if it says all laws are from sovereign.

4. LEGAL REALISM- JUSTICE HOLMES

 BODY OF PRINCIPLES recognized and applied by administration-courts
 Holmes- law in reality, is a judgement and gave a BADMAN THEORY- man is bad and
didn’t need to know the statutes and only need what courts says of statutes.
 Judges put life in dead letters of statutes.- CHIPMAN GRAY
 Fortifies sociological jurisprudence and says law is evolved by experience.
 American realists- much will depend upon subjective elements of judges and
temperamental elements of judges.
 Scandivanism realism – sought to develop formal philosophy of law showing how law is an
important part of society
 CRTICISM: -
 legal situations by this theory is limited to prediction of judges, but judgement isn’t
prediction.
 Theory depicts only half pictures
 Theory of uncertainty of language.

5. PURE THEORY OF LAW-kelson- law is system of law

 Restated positivism.
 Analyzed in terms of legal rules, legal rules are imperative(direction) and prescriptive; or
indicative not descriptive.
LEGAL RULES COMMAND
 To achieve something 

 Observed by society – done out  Compulsive

of habit in nature
 Regulates behavior- directions of  Order of
the officials sovereign
 No sanction  Sanction, if
not obeyed.

6. PHILOSPHICAL
7. MARKSISM

DATE: - 08-09-21
PURE THEORY OF LAW
 This doesn’t include
 Restated positivism
 Law and legal system have to be pure and not to be contaminated.
 Law to regulate btw person- person not to be only
 LAW AND JUSTICE IN GLOBALIZED
SOCIETY
(START QUESTIONING)
DATE:17-08-2021
MONDAY AND WEDNESDAY-9 TO 5 AM
A. CONTROL-EXTENT-WHY-HOW (earliest state of formation of society)

1. Community-survival- therefore, development.

2. Compromise-individual interest-larger interest.
3. Force theory of state: - IF BEYOND A LIMIT-REVOLT-TO BE EXERCISED
REASONABLY.
4. Divine origin theory of: -
a) law: - given by God.
Disobedience is not only crime but a wrong in itself.
b) state: - king implements such law
5. Only thinking society can develop
(socially)-intellectually, equality, less oppression, more need to think as to what
should be our nations debating issues, connecting with the history.
(economically)- again if we think of it more equal distribution of resources
NO RESTRICTION ON FREEDOM OF THOUGHT
6. Next class topic: - JUSTICE-CHANGE-EFFECTS
7. WHAT IS LAW?
8. JUSTICE TO GLOBALISATION.

DATE: 23-08-17
TOPIC: MEANING OF LAW

1. Refers to certain different kinds of rules and principles

2. Instrument to Regulate human behavior- why to be regulated? -
3. Law- existence- due to thought of order
4. Verse in Manu smriti- fear of punishment there is order
5. Approach of law – from harsh to reformative- represents change in order of society
6. Retributive- oldest theory- private vengeance
7. As, state (political institution) progressed- took up responsibility of retribution- came
in form of penalty.
8. Punishment should have deterrent effect.
9. Aspect of deterrent and retribution are part of prevention.
10. Reformation only to whom who can be reformed.
11. ULTIMATE PURPOSE IS TO PROVIDE JUSTICE
12. WHAT is justice? - totally, abstract term and relative. - and never can be
UNIVERSAL- and time bound as well.
13. JUSTICE- nothing UNIVERSAL
14. Understand Law in larger sense- all acts, statutes, decisions, order, custom having
force of law- all regulations of govt. authority- governing your relations. - not
regulating-
15. Ethics- should be part of law? or law can be totally devoid of law? - law is basically
rooted at ethics- that is, law has came from sense of right and wrong- and right and
wrong theory came from ethics-
16. Dharma- rightful deeds you should do as a person
Adharma-

17. When law recognizes adharma- it becomes punishable-

18. In modern law- law developed- dharma gave way to concept of theories and adharma
gave concept of crime.
19. Justice to whom? - to an individual- justice to be purposeful- an individual should
have his/her space (society develops along exploitation)
20. Law- reflection of societies approach/ attitude - brought by society to bring change -
change of thought of making law comes from change in attitude of society- shah bano
judgement, triple talaq judgement.
21. England (in all systems) - slave- traded as commodity- society recognized it as an
unjust act – this is the change in approach of justice
22. Concept – pluralism- a voice may not be heard today but will definitely be just in
future.
23. Why law need to be defined- as it depends on various concept, which are changing
wrt space and time and place.

WHY TO OBEY LAW? and WHETHER AN UNJUST LAW TO BE OBEYED?

1. You should fight such unjust law but should be obeyed unless it is declared unjust
2. Other way, Gandhi called for civil disobedience- not to obey such unjust law.

IS LAW = LEGISLATION ONLY?

1. Instrument to bring Legal order- maintaining conduct of society- by systematic
application of force by a organized political institution/ society
2. Interbody of legal principles- existing in politically organized society
3. Law- used to mean- all official CONTROL- leads to actual administration of justice-
in organized state.

LAW IN STRICT SENSE

1. Only civil law of a state. Compare with point 14.

Law to be studied by us in its wider sense - for a securities student.

DEFINITION OF LAW
1. Very difficult- same position as blind persons defining how an elephant looks.
2. Austin- command theory-
3. Salmond- law- body of principles- recognized and applied by state- to administer
JUSTICE- criticized: didn’t define justice
4. Keeton- what is just at once, not just another time- can’t define it
5. Pound- criticized Salmond- of reducing law into isolated mass of judicial decisions.
6. GRAY- law of state and any organized body of men- laid by court – to determine
rights and duties- criticized- emphasis on court law and not on statute
7. Court- medium to administer law- and a medium shouldn’t be over emphasized. -
thought of other thinkers.
8. Austin- def.- criticized- a) it has emphasized imperative character of law- the force; b)
even a wrong command of sovereign would be obeyed- the unjust law to be obeyed. -
no place of ethics
9. Holland- followed Austin concept- general rule of external human action enforced by
sovereign political authority
10. Both holland and Austin – narrowed scope of law
11. Kelson – pure theory of law- order of hierarchy of norm- legal system based on
superior norm and at the top is grundnorm and all are subjects to it
12. Hart- combination of primary rules of union and
13. Hart – talks about obligations and not sovereign
14. Different schools-
a. HISTORICAL school- examines – how ideas grows- Savigny (a propounder)- law is
result of development of
b.

CONCLUSION: - democracy not a best from- since no other peaceful alternative. In

the same way, no peaceful alternative of majoritarianism.

Date: 25-08-21

1. ANALYTICAL SCHOOL- legal positivism- analyses law as laid down by superior

authority - shaped in later part of 18th and early 19th century- Austin and Jeremy
Bentham- Adolphus, Hart as well- they are not totally in agreement with each other-
but the prevalent concept in theories of these jurists was common- that is analyzing
law and what law is and not what law ought to be.
a. Austin- expository approach – divided law into general and particular – law and
morality totally different- assess law behind the logic of it – criticize: approach based
on unitary polity i.e., parliamentary system, where sovereignty lies in parliament.
Unlike, India where sovereignty lies in people of India. Also, law not only limits to
command of sovereign.

b. Bentham- rejected natural law and propounded utilitarianism- pain and pleasure -
combined law as it is and law ought to be- latter is censorial approach and former
expository approach- law a command and recognized sovereign- law as a social
instrument tries to decrease pain and increase pleasure, such a law is good law and
have a utility.

c. Kelson- pure theory of law- knowledge of law and not what law ought to be- law is a
science, normative and not natural- - theory of law is formal way of ordering change
 in a specific system (Example: HR, a human has right to dignity and can’t be
infringed by anybody; theories need to be reconciled with reality) – relation of legal
theories to a particular system of law is that of possibility of actual law.

2. SOCIOLOGICAL SCHOOL- proponent AUGUST COMTE- used the word

“sociology”- law is product of positive social science- growing- society is subject to
organic advance like any other living organism- to facilitate growth you put up
various factors into practice
This school was first theoretical attempt to demonstrate law and society, and
emphasized that diversity of society have effect on every legal issue.
Individual and social interest to be balanced- two relation to be examined for such
balance -SOCIAL RELATION (broader) and LEGAL RELATION (narrower)
This school- law necessary only when social relations fail.

a. Montesquieu-view- society influences the legal process-acknowledges significance of

history to be studied to determine societal composition -advocated features of country
should be determined by law
b. Roscoe Pound- social engineering- lawyer as engineers to bring structure which will
provide oath of growth- balance btw competing interest in which applied science is
used to harmonize conflicts-(history of society is history of class struggle- class
struggle basis of social conflicts and foundation of socio-economic development- law
is a means and not an end; end is revolutionary transformation is the society once
transformation is achieved law becomes irrelevant- three doctrines –dialectical,
historical and economical/industrial. )

3. REALIST SCHOOL- no certainty about law because it depends upon collections of

fact to be decided by courts. - example: judgements on sec.377-Realist doesn’t favor
former conceptual logic- a formal legislative strategy rather than
Law-purpose is to regulate behavior - Opposed- emphasis given to legal
terminology, they said see term with respect to the effect of it - Scandinavian
thought is more speculative and American relates more to psychological behavior
of lawyers and judges.

LAW- CATEGORIES
1. IMPERATIVE LAW- mandated by state- through use of physical force- thus,
described by jurists as an instrument of oppression
2. NATURAL LAW- just, - reasonable and eternal in nature.
3. CONVENTIONAL LAW- rules and regulations- reached by agreement by parties-
applies to them who agrees to them- treaties, conventions, rules of a club or society-
obey such rule by virtue of being member of it- sanction to obey such laws
4. CUSTOMARY LAWS- practice got force due to its continuous exercise
5. TECHNICAL LAWS- laws made for the purpose of attaining some particular purpose
or attaining some special aspects.
6. INTERNATIONAL LAWS- largely customary- applies to comity of nations- derived
from treaties or conventions btw nations
 JUSTICE (AND INJUSTICE)
1. Humans constant need of getting justice.
2. Dynamic- different at different time and place.
3. It gives equal share to all- more specifically equitable share- Bentham observed that
everybody should count for one, not for more than one- “OM”: all for one. One for all
4. Also, a geometrical expression- proportionate equality- equals to equals and unequal
share to unequals.
Example- a person is not liable to pay same tax as anil Ambani- inequality among
unequal’s- REASONABLE CLASSIFICATION.

5. IMPLICATIONS OF JUSTICE- a) whether justice requires state or just state of

affairs? - latter one- Justice more connected to morality than law. b) whether justice
have affection or lose or ill-will? - No.

6. Democracy and Justice- democracy is not pre-requisite of justice, and justice can
prevail without a democratic system.

DATE: 30-08-21
7. 4 cardinal principles- prudence, justice, and;
Also, purusharth- dharma, moksha

8. PLATO- gives importance to idea justice- in his philosophy- linked with morality and
righteousness. - properly include whole duty of man- it covers whole field of
individual conduct so far as it covers relations with others- justice is quality of soul, in
virtue of which man set aside the irrational desire to taste every pleasure and to get
selfish satisfaction of every object. – to accommodate the desire of others and general
benefits- purpose of man is general well- being- his philosophy is ending with man
and not other creatures and right of man is superior than other creatures. Unlike,
Indian philosophy of- “VASUDHAY KUTUMBHAKAM”- includes each and every
creature having its own space. -Plato-at his time, 320 BC- democracy in Athens was
at verge of ruin. (May read the work of Plato- THE REPUBLIC, political selfishness
agitated him and their needless, futile policies) {COMPARE THE DEMOCRACY
OF STATES IF ANY CHANGE HAPPENED FROM POLITICAL
SELFFISHNESS}- self-satisfaction, selfish political motive leaded to excessive
individualism and Athens was divided into two camps of rich and poor. Thus, leads to
gap- Karl Marx describes camps as class, former exploiters and latter exploited. –
Plato attacked state and such selfishness from POV of construing an ideal state where
justice is supreme- EARLIEST, ROOTS OF RULE OF LAW could be find here. -
justice is fundamental of well-ordered society. Plato said- every society will get the
leadership it deserves; coz people choose or elects him. Thus, leadership is your own
reflection. REMEDY: country must be ruled by a person which he described as,
PHILOSPHER KING. He identified that forces pull back, one of them is family and
should keep his distance from institution of marriage.
9. ARISTOTLE- differentiates btw universal justice (corresponds as a whole- at macro
level, Eg: - reservation) and particular justice (in concepts- wrt individuals claims to
resources which comes in conflict of interest of state then justice is to be resorted to-
not always necessary to sacrifice an individual claims or society to overpower an
individual), a person not falling in unreserved category might feel injustice is being
done with him- this is at a particular- THEROY OF INDIVIDUAL CLAIM)- state
should focus on universal justice, but shouldn’t ignore particular justice as well.
Whether to understand justice at universal or particular level? - both are equally
important. – THEORY OF INDIVIDUAL CLAIMS- justice is matter as of how
individuals are treated, minority rights came from, equitable is an aspect of justice,
Impartiality is another aspect of justice and is connected with application of rules. –
theories of bias come- personal bias, pecuniary bias and bias as to SM. Justice
requires deviation and alteration of rules only for advancing justice and not against it
or defeating it. – justice requires agency- two faces of justice: a) conservative-
existing norms and practices; b) ideal- requires norms to change and gives reason for
such change- and new doctrines are developed. example: - permanent service
commission case, constitutional compensation, development of Art. 21.
Another distinction a) distributive: justice as remedial principle- multilateral-
claims of no. of person of what is being distributed. Example: A poor stole a
bread; b) corrective justice: when somebody interferes with your right- then,
corrective justice is required i.e., person will be punished and justice is done by a
corrective action.

Justice two aspects- procedural and substantive. Maneka Gandhi case- law and
procedure (justice not only be done but must be seem to be done) both to be just,
fair and equitable.

Another: - a) comparative-
b) non- comparative- person filing writ allowed to sit in an exam

10. scope of justice and theories of justice- in next class.

DATE:01-09-21
THEORIES OF JUSTICE

1. UTILITARINISM
THEORY OF MORALITY
- Life of human being sticks between two maters i.e., pleasure and pain
- says- decision are right if ultimately make people happy. Also, all can’t be happy
from a decision and thus, focus on happiness of greatest no. of society.
- Traditional theory of philosophers- by Bentham and followed my J.S. Mill
- Attaches itself with positive action when seen in light of work (healthy
environment of work)
- 4 fundamentals
 Pleasure or happiness which have intrinsic value
 If any action promotes happiness, those are right
 Everyone’s happiness should be counted equally.
 Bentham- book- in 1789 these says two masters tells us what we out to do
 J.S. mill- two books- in
 And another after a century ago, - it says –the creed which accepts the foundation of
morality or greatest happiness principle, hold the actions of such creed right. In
proportion, as they tend to promote Happiness? - wrong! In proportion as they tend to
create reverse of happiness. By happiness means tender pleasure and absence of pain
by unhappiness pain and privation of pleasure.

POLITICAL ECONOMY AND UTILITARIANISM – while examining

relevance of this theory three questions were posed, which are as follows: -
 What constitutes amount greatest amount of good?
 How do you can define happiness?
 How justice is accommodated?
 Utilitarianism is concerned making most ethical actions possible. – it is based upon
two approaches, they are: - a) RULE BASED APPROACH; and
b) ETHICS BASED APPROACH

LIMITATIONS: a) In business, this theory is challenging and difficult to maintain the

corporate culture, more so in capitalist culture. As, capitalist focusses on at the expenses
of others. Thus, utilitarianism model is not easy to work in capitalist.
b) This theory tends to create black and white shade of morality and no
acknowledgements of grey area and such black and white doesn’t exists in reality.

UTILITARIANISM AND JUSTICE: When this theory came justice was connected
with theology and amin advantages of this theory was that it helped in de-attaching
justice with theology

2. PURE THEORY OF LAW

- Kelson considers justice as social happiness (as it comes from satisfaction of a person)
guaranteed by social order
- Just order of society difficult for modern society- because modern society knows too
much because of pluralism-much aware of their rights.

3. THEORY OF JUSTICE as fairness - JOHN RAWLS

- Concerned more with political libertinism
- Reformulation of utilitarianism theory
- Two principle: a) Maximization of liberty and;
 b) Equality for all- both in basic liberty of social life and distribution of
all forms of common goods, with an exception of all- also includes equal opportunity
and removing inequality based on birth and wealth.
- Difference in utilitarianism and John Rawls theory: -
 Utilitarianism doesn’t recognize inequality, but only two masters i.e., pain and
pleasure; on the other hand, John Rawls recognizes it and
 Utilitarianism defines liberty and political rights it doesn’t; John Rawls recognizes
first principle as maximization of liberty rather than equal maximization of liberty.
(This means there are some fundamental principles can’t be sacrificed even because
of larger good of society- fundamental rights)
 Rawls concept of benefit- benefit defined in terms of primary goods, opportunity,
liberty, self-respect, can be said to be more individual centric and is different from
utilitarianism which concept of benefit is larger good of society.
- Distributive justice to be given liberal interpretation so as to protect interest of people
from technicalities of law and such technicalities can be reduced.
- Immanuel Kant- says about just order of society- where there is primacy
- John Rawls (a modern thinker) is trying to balance the need of wealth in society and
speaks about maximization of liberty unlike Bentham (concept of liberty was not much
grown) who focusses on maximization of happiness.
- Differences in theories in because in approach of society differs and socio- economic
condition.
DATE: 06-09-21

CONTINUE OF JOHN RAWLS

4. LIBERTERIAN THEORY
 Ability to choose
 No interference

i. John Hopper- thinker

 every person owner of his own life and no one else is owner of anyone else’s life
 only when

DATE: 08-09-21
CONTINUED….

LIBERTERIAN THEORY
 Emphasis on individual liberty
 Further, it considers humans as rational chooser. Therefore, theory says that man must
be free to choose and pursue life w/o interference from others
 Every person owner of his own life and no one else is owner of anyone else’s life. -
your life is disposal of your own.
 Choice to act as he wants unless not prejudicing liberty(similar) of other human being.
 All the civil and personal liberties. – no one can stop you from exercising them.
 Helped in development of our civil and political rights.
 Unrestricted and uncontrolled right to acquire property. – no limits on extent and this
supports the capitalist ideology of owing the property – include right to acquire, right
to acquire w/o coercive means(then you are interfering in similar right of another
person) and right to means of production (control, channelize, what to produce, how
much to produce) – EMPHASISES, property is an essential element of liberty. As,
human is a rational chooser, and so as a rational indicator human being will strive to
acquire, and own the property.
 If you want to acquire the right, you should have the ability (it is your financial
resources). – right to constitutional remedies, and right to access to justice (as seeking
justice is not easy and cheap) – access justice to means to access or in other sense,
who have the means money power and only discover their rights and liberties [PIL-
for those who cannot move machinery of court due SOCIO- ECONOMIC
BACKWARDNESS, any public-spirited person can move court on behalf of them].
 Ownership is the interest in property which keeps the human race to go ahead.
 TWO WAYS OF ACQUIRING PROPERTY: according to this theory,
 Act of  Acquiring unowned properties
transfer
By owner or group of Acquired not thought ownership or by coercive
owners methods.
From consideration Acquired by claiming it by your mixing your labor with
the thing (cultivate the land, develop the land, fence it,
make it fertile) and it becomes yours as you create some
interest in the property.
Transfer of the interest in Practice your interest for the continuous and long time
the property. and you acquire rights to the exclusion of all others.
Just and legit transfer-
unless by malice
Cannot transfer more than
the interest he/she holds on
property.

 In Globalized World, this approach creates some problems- as various scholars took
diverse views- over the period of time - John Locke, Fedrick Hayek (rightist) and Hill
Steiner, Peter Valentine(leftist)
 Elizabeth candy Stanton and Mary Well Stonecroft developed and advocated feminist
libertarian theories.
 This theory – says there should be unregulated private capitalist economy- any kind of
regulation or tax is considered as loot by state. – do not accept any regulatory
mechanism (no equal wages act, equal remuneration act)
 In a state, the welfare system, social security law, anti- discriminatory system there
should be no regulation and a person should have right to choose who to hate, employ
or help and state should not dictate me to discriminate or not.
 This theory on global level, face problem wrt unowned properties (territorial waters,
island, artic regions, space) can you create proprietary rights in them or can you
explore the high seas (nobody water or everyone’s waters)?
 FAILED – to understand the inter-connectedness of the individual to a society.
 Utilitarianism fails to recognize individualism and libertarian fails to recognize inter-
connectedness. – both approaches are wrong.
 But, in modern society this theory has many theoretical implications.

NEXT TOPIC: - SOCIAL CONTRACT THEORY

Justice- independent of law

- needs a medium- law is medium- also, an enforcement mechanism.
- when administered through law it becomes weak.( an old man of 75yrs committing
murder will get lesser punishment and other of 25 yrs may be given more punishment- leading
to unjust)- thus, this medium limits justice.
- justice could only be administered by law. Therefore, law is important.

Law- need to be administered- by framework- STATE

- THINKERS- compelled to think how state originated.

SOCIAL CONTRACT THEORY

 Political theory
 Of Socrates- suffering injustice is better than doing injustice.
 Views a person's moral and obligations- wrt to society and political organisation- state.
 Human a social animal- can't live isolated life-
 People gave a group of individuals power to administer on their behalf- these individuals
developed into an institution called state.
 In social contract- legal relations has been established between government and people - state
and its subjects.
 As a state, you should have mandated and support of people.
 Hobbes and Rousseau are pioneers of this theory.

THOMAS HOBBES
 https://iep.utm.edu/soc-cont/#SH2a (each and every word from here)

DATE :16-09-21

STATE
 A politically organised society.
 It should be a body- organised politically.
 Politically organised- means-
 Association or Society- constitutes population- need not to be in a particular place and could
be scattered- with an element of administration and not government, but when governing
certain authority is to be exercised.- such exercising authority is mandated by people- for
effective exercise of authority population should be in a particular territory.
 But, the most important element is SOVERGEINITY which qualifies a body as state.
 These 4 are traditional element.
 In modern element 5th element is international recognition.

DEFINITIONS: -
 Originated from a Latin word called statute, position, body of person, in old English came
from astate.
 Could be traced from Greek.
 Plato defined ideal state in his book REPUBLIC.
 A political and legally recognised body- primarily, responsible for law and order- supreme of
all other authorities within the territory- Independent from outside powers- Monopoly to
exercise coercive power.

EVOLUTIONARY THEORY
 State is result of historical growth or gradual evolution.
 Organic theory of state.
 It says- Not creation of any formal deliberate agreement - as social contract theory says.
 Says- Came into existence out of instinct- man convinced he is incomplete unless living in
harmony with other people.
 Kinship and blood relations formed families- families made society- and society became
organised.
 Man in the nature, is governed by fear. Fear if his own security- fear from natural forces.
 From fear comes worship. That's why people started worshipping forces emerged and god
emerged with its worship and thus, religion came.- therefore, from common habits state came
and to sustain state Power came.
 State came w/o any agreement or matter of mandate.

MARXIAN THEORY
 Came from the exploitation
 Who can exploit whom?
 Organised person is powerful and will exploit.
 State is the most powerful dominant class of society. Thus, become dominant economically-
created state as a medium to exploit more.

INDIVIDUALISTIC THEORY
 Approaches state from individual POV.
 Individual a rational being- and being rational has a purpose.
 Without having a purpose- you won't become organised.
 Individual is best judge of his right and liberties
 State
 State to have limited power, Harold Laski- in such theory, state is undermined and individual
POV in overmined.

GANDHI- state should come to a grassroot level- the coercive nature of state must be minimal,
only when absolute necessary.
CRITICISED- as anarchist
 CONCLUSION: - different scholars- different Approaches towards state. But, statehood
represents set of institution, body of attitude , behaviour .

STATE (POV OF SOVEREGINTY)

SOVEREIGNITY- Power of being supreme- character of state neither dependent on any

power nor subject to any outside powers.
 Power of a particular class within a society over other class.
 Latin term- supremus- supreme
 Unquestionable power and right to demand allegiance from its subjects or whoever comes in
the territory of that state.
 Disobedience of laws is disobedience of sovereignty of state and leads t infliction of
punishment.
 Two angles- both should be presented
INTERANAL EXTERNAL
 When  When exercised
within its wrt other state.
territory

 Over-ridding power on individuals and organisations.

DEFINITION
Two components
 Supreme power- capacity and right to exercise authority over subjects- up to any level to
secure obedience and allegiance, till the last instance. - NATIONAL SOVEREIGNTY
 Exercising power maybe legitimate- power which people can digest without surprise.- which
is accepted by public at large- POPULAR SOVEREGNITY.
 Jean Bodin- Supremacy on citizens and subjects, not restrained by law.
 Hugo Grotius- supreme political power, vested in whom whose actions is not subjected to any
other and can't be overridden.

Conclusion- 6 points
 Element of state
 relates to Absoluteness of law
 Absolute and unlimited in character

HISTORY
From 13th century, Bodin links political rules to concept of sovereignty.
 Final highest decision making body. Thus, who has no lord above.
 My power is not limited by any power or authority - then, I am sovereign
 Political sovergnity and legal sovergnity.
 Popular sovergnity- Russo- people's affairs- it is people who have general will.

DATE : 20-09-21
GLOBALISATION
  Former ICJ justice.
 It has affected sovergnity in three ways:
A) rise of international trade and market- diluting the sovergnity

IMPACT ON SOVEREIGNTY

<<Globalization and Sovereignty.pdf>>

NEXT CLASS- theories of sovereignty and globalisation

DATE: 13-09-21
DATE : 22-09-21
TYPES OF SOVEREGINITY
1. REAL OR TITULAR SOVEREIGN :- only title authority- powers exercised by somebody
else.- only represents
2. DEJURE :- In internal disturbances, cases e see two types of govt.
- legal government
3. DEFACTO - a govt. came up by revolution- by military coup or political

THEORIES OF SOVERGENITY
MONOISM PLURALISTIC
Eloquent protest to
monoism
Shared with govt. and
post of
ABSOLUTE, DETERMINATE AND INDIVISIBLE
CONTRIBUTOR:- john Austin and Jean Bodin ( sovergnity is highest
power
Of the state and not subject to any power and it is itself master and
maker of the law.
It maybe resided in one person or body of persons. Thus, determinate
and incapable of any limitation and have absolute claim to seek and
secure obedience of all.
JEAN BODIN:- it is just subject to law of god and law of nature. Transform the state is to
be to what state is to be.
THOMAS HOBBES:- social contract theory.
Jeremy Bentham further developed this theory

For Austin there is no general will.

CRITICISM: Absolutism not right

Individualism not

POSITIVE: brought legal character to sovereign( as disobedience with

sovereign was penalized)
came the theory of just ND unjust law
Both intellectually and politically revolt of this theory