JURISPRUDENCE

LEGAL THEORY

Angles for approaching jurisprudence

1. Descriptive

"what is”
deals with facts and empirical evidence
What is the nature of law that functions. What is the nature of law right now - it is a set
of rules. This kind of understanding is descriptive.

2. Normative

“what ought to be”;

questions values, norms, and rules;
this would never have a universal acceptable answer (grey area) because there’s no
empirical evidence supporting it;
how do you deduce this thing is ideal or not;
distinction between ideal and non- ideal
Ex: Natural Law School - there is an end we have to achieve. All laws are made for
achieving that ideal situation. John says there are certain ideals we have to achieve.
Therefore, every law which helps achieve these goods is a valid law.

3. Critical

No one meta- narrative

For one to deduct facts from theory or theory from facts, you need to apply your ability
to reason. Critical Theory says your reason will never be objective, it will be : by bias,
which is why there will never be one grant narrative.

Normative and Descriptive need not necessarily be mutually exclusive - Ronald Dwarkin
There cannot just be one narrative because everybody’s reasons will be colored by who they
are and people can never be objective.

Law as a Science: flexibility vs. rigidity, universality

If laws are more fluctuating or flexible beyond a point, it defeats the purpose of law as
in people would be unsure and the entire purpose of law is to guide people in a certain
way.
By treating law as a science - problematic because law need to be flexible at some
 points.
Inductive Reasoning: movement from specific to general statement
Deductive Reasoning: Movement from general to specific statement

Law as physical fact vs normative rule

Physical Fact Normative Rule

Exist or don’t exist Created by people on the basis of

their understanding of life

Law of gravity Which actions are acceptable/ not

acceptable

Are normative rules different from

morals?

What makes a legal system a good legal system? (Characteristics of a legal system)

Certainty of Law, and

Regularity of Law

How to define law

Explanation: Elucidating the meaning
Criteria of validity of law: what is the criteria for validity of law

1. Behavioural: a law can best be defines in the sense in which we reach to law per se or
how a law exists in society. Analysis of how law effects behavior
2. Socio- psychological: HLA Hart - Gunman’s example
3. Deontic approach: if either of these are applied the law will be valid

i. Proper Procedure - If the laws are made in a specific manner they will be correct laws
ii. Ethical Standards - If the laws adhere to certain ethical standards acceptable to a certain
society. Eg: Constitutional Morality
iii. Proper Compliance - If the implementation of laws is correctly done they will be valid laws

General scheme for the criteria of validity of law

1. Regularity
2. Certainty
Nature of Law
Law is a system of normative rules - established.

1. Ethics vs. Law

Similarity: both talk about what ought to be; notion of obligation; notion of duty.
Ethics come into law when we consider adultery being a ground for divorce, ideas of
obscenity.
Difference: law leaves limited scope for questioning. Moral duty v. Legal Obligations

2. Religion vs. Law

Similarity: We take a subversive position to both religion and law, we are always
subjected to it; Authority not questioned, actions questioned.
Difference: religion does not leave scope for reasoning or rationalization while law
relies on reason and cause

A Law will be valid only if it is done properly, through a designed system.

Not every moral sentiment can be legislated upon
Kant Believes there are 2 conducts in life

1. External - Legal
2. Internal - Moral

NATURAL LAW SCHOOL

Talks about Moral Theory and Legal Theory

It is still evolving
Questions raised in NLS:

1. What is Law?

2. What is Moral?

There is a confusion in NLS on 3 levels based on defining what is natural:

1. Natural is something which is derived form human nature

 2. Something which is an outcome of human reason and observation - cause and effect
(figure out nature’s scheme of working and figure out our role in this
3. A mix of both. Observation will eke out of a reaction

Classical Natural Law School

Emerged in an age where many factors were based on assumptions

Thinkers- Plato, Aristotle, Acquinas, Grotius
NLS deals with law, morals and reasons. All the theses by these thinkers focus on the
overlap between law and morals

Overlap Thesis:
Overlap between law and morals. Thereby, our morals could be guidelines for framing our
laws.
Approaches have changed over the years yet the overlap remains constant
Two debates which have helped evolved this thesis:

1. Hart - Fuller (Internal morality of law)

Focus on the debate was a decision of a post war West German court. Under the
Third Reich the wife of a German in 1944, wishing to be rid of him, denounced him to
the Gestapo for insulting remarks he had made about Hitler’s conduct of the war. He
was tried and sentenced to death, though his sentence was converted to service as a
soldier on the Russian front. In 1949 the wife was prosecuted for procuring her
husband’s loss of liberty. Her defence was that he has committed an offence under a
Nazi stature of 1934. The court nevertheless convicted her on the ground that the
stature under which the husband has been punished offended the ’sound conscience
and sense of justice of all decent human beings'
Hart argued that the decision of the court, and similar cases pursuant to it, was wrong
, as the Nazi law of 1934 was a valid law since it fulfilled the requirements of the ‘rule
of recognition’.
Fuller contended that since Nazi ‘law’ deviated so far from morality, it failed to quality
as law, and therefore supported the court’s decision.
Both Hart and Fuller would have preferred the enactment of retroactive legislation
under which the woman could have been prosecuted

2. Hart - Devlin (1959)

Talked about sexual offenses

A report was submitted which wanted to decriminalize homosexuality and legalise
prostitution
Devlin claimed that society has a right to protect itself. If morally, society believed that
these acts are wrong, Devlin wants to use law as a medium to protect it.
Laws could be framed in order to serve as a means of survival of society. Only make
 laws society is comfortable with.
Hart says rule of recognition helps in framing laws. (Hart believes law is a system of
rules)
Society’s right to protect itself is not absolute and flows from what is deemed
acceptable in a certain context
It is not the opinion of all the people in the society, but for the interest of all people
involved in the society.
Law is not just an instrument to protect culture but one to solve disputes and settle
conflict.

Basic tenet of NLS:

There are objective moral principles which can be discovered by reason and these
principles constitute natural law.
Objective Moral Principles are those which would be objectively agreeable to
everyone.
Can be derived by applying reason to our nature

How to decide what are morals/ values - Different approaches taken by NLS to describe
overlap between law and morals and to study law

1. Scientific Approach:

Describes the nature of things, how they behave

2. Teleological Approach:

Aristotle (end oriented approach to figure out how all our laws will ensure reaching our
end goal).
Believed everyone has a natural function
Talked about two forces (i) Static, and (ii) Change
Man does not merely survive, there will be a natural function - Natural thoughts and
reasons as to what is to be achieved and why - to find our natural function
Established a telos or end through thinking and rationalising
Means to achieve will be framed via laws after deciding telos
What gives us natural function? Either there is a God, which closes further discussion
Or other thinkers brought in the concept of ‘free will’. That all of us are rational human
beings with a desire(s) and the free will to decide what is good for ourselves
Criticisms:
Need not necessarily be all encompassing. Clashes with everyone else’s free will
Do we even have free will? Does it even exists
 Counter: They said it's God’s will. Thus the questions cannot be answered

3. Self Evident

Common sense, universally known, like murder is bad

Becomes open to criticism where content matters. Like, in killing a person, if one says
that murder is bad then how could one justify capital punishment

Hugo Grotius
Talked about taking out the picture of the God we created
Natural Law was willed by God, but was willed by him because it is that which is
rationally good. It is not good because he merely happens to have willed it

St. Thomas Aquinas

The Middle Ages - theology of the Catholic Church
Influenced greatly by St. Augustine
Connection between means and ends. Man chooses for himself the ends (common
good) which he wants and devises means (laws) of achieving them.
The establishment of certain ends and the means of achievement originated in the
reason of some superhuman legislator. This is eternal law. An is free and rational and
capable of acting contrary to eternal law. That law has to be promulgated to him
through reason. That is Natural Law. Natural law is nothing else but a participation of
the eternal law in a rational creature
The problem that NLS faces is that it applies principles of law universally and this is
where critical legal studies fail as they cannot give an alternative to current thinkers
Talks about Universality and Immutability
Further talks about 'Higher Laws’ and the ability to reason due to which we discover
things.

Categories of Law:

1. Lex eterna - Eternal Law - Divine reason only known to God

2. Lex naturalis - Natural Law - Participation of eternal law in natural creatures
(discoverable by reason by rational creatures
3. Lex divina - Divine Law - the law in scriptures
4. Lex Humana - Humanly posited Law - human made law for the achievement of
common good. Will only be valid if it derives from or depends on law naturalis.
 Unjust laws are a perversion of law and do not bind conscience - these laws are seen
as defective so one is not morally bound to them
Unjust law is no law at all because lex eterna can never be unjust.
This is where NLS gets divided and the question is answered in opposites

Aristotle
In NLS, Aristotle was one of the most early crusaders
He stated that reasons always going to prevail over legal right where legal right is right
or wrong. This concept of right of legality would be a part of reason. But reason in
such a case would be holistic and layered. Then the different in reason would be
solved by understanding the nature of things. Understanding this ‘one’ or ‘universal’
nature of things would solve the problem between reasons but this is open to vast
criticism
Further External Natural law and nature of things is quite different as universal morality
is derived from nature which may be made by the metaphysical or vice versa
Nature of thing is universal and not changeable so has only a specific function and this
can be extended to human beings when Aristotle says that their function is to do ’the
good’. That is one can also pay attention to the requirements and contact and where
eternal natural law says otherwise, then Aristotle has a problem as it does not take the
context into consideration

Social Contract
There are two ways to justify social contract:

1. Consent Theory - states that all of us are equals and all equal individuals need to give
consent for state formation. This can be seen in all theories propounded by social
contract thinkers. This is based on the assumption of our ability to reason that all of us
are equal and need dispute solving
2. Theory of Justice - Given by Rawls states. That one should have an original position
that where one does not know anything about its earthly position then one needs to
decide on the distribution and management of resources. That needs to be decided
under a veil of ignorance. This strengthens social contract theory, as they provide
certain natural rights that are available for everyone

Hobbes
State of nature is war like. Natural law teaches us the need for self preservation.
He speaks about formation of state due to individuals coming together (for purely
selfish reasons) to surrender our natural freedom in order to create an orderly society
and therefore states that the social contract would give the right to self preservation
and survival
 First law of nature is peace
Second is that we mutually divest ourselves to certain rights (such as the right to take
another person’s life) so as to achieve peace
The mutual transferring of rights s a contract and is the basis of moral duty
Such mutual agreements need to be honoured - Hobbes’ third law of nature

Locke
Locke comes in and states that all are inherently good.
Therefore, he considers the state of nature as the golden age and sys that the right to
property is not being protected in the state of nature. He further states that one has a
right to revolt against the government.

Rousseau
States that there are two types of will:

1. General Will - which is popular sovereignty. Distinguished from ‘will of all’ which is
only a collection of individual wills
2. Political Will

Law is going to be a law as long as it has the popular majority backing it

Man must be forced to be free - individuals surrender their free will to create popular
sovereignty.
Even Rousseau bases on the concept of equality of all and everyone as reasonable
Rousseau states that ’the state’ derives its sovereignty from popular sovereignty
which is derived form people’s individual sovereignty

Kant
States. That morality can only arise from freedom.
Therefore, law which gives us morals to follow is law whereas any other law is no law
at all.
Further he states that morality makes freedom possible. He states that all humans do
not follow human law (morality) as they do not have holy will. So morality and freedom
are same which needs to be subject of every law (which needs to be in conformity
with freedom and morality)
Further, Kant states that there is autonomy (individual freedom) vs. heteronomy
(someone else deciding morality to impose on you)
Heteronomy also includes the holy will and God’s will as that is someone else’s notion
of morality which emerges from freedom
 Kant later gets critiqued that there cannot be universally applicable law in both private
and public spheres where different laws are applicable
For holy will, for Kant, there is a categorical imperative where he states that the
consequence of that action. So for him thinking without selfish interest is holy will.
Kant nowhere talks about survival as a basic assumption/ goal but rather states that
freedom (which he uses interchangeably with morality) is what one gas to protect. So
Kant may advocate someone dying to protect freedom.

DECLINE OF NATURAL LAW THEORY:

After Kant, NLS declined due to:

1. Rise of Legal Positivism

2. Non-cognitivism in ethics - David Hume

In moral reasoning there can be no rational solutions

We cannot objectively know what is right or wrong
Hume remarked that moralists seek to derive an ought from an is: we cannot conclude
that the law should assume a particular form merely because a certain state of affairs
exists in nature

Fuller -
Two purposes for any legal system to exist:
(i) The purposive human enterprise of subjecting human conduct to the governance of rules

Substantive purpose of a legal system - substantive rules (what a legal system should
look like)
When we look at a legal system, we have to achieve an end. To achieve these ends,
we need means, which are substantive rules
Natural Law School was only focussed on the first one

(ii) Processual Arrangements

Procedural purpose - gets complied with when you follow a procedural standard
If you don’t have them, the state will just exercise its coercive power - It will suppress
you because the processes are not clear.

8 DESIDERATA - 8 kinds of legal excellence (the 8 standards to be followed, derived from the
inner morality of law) - 8 ways to make a law

1. Generality - you have to have rules which are general. You can’t legislate on every
single thing about human conduct.
 2. Promulgation - publish laws
3. Non-retroactivity
4. Clarity
5. Non-contradiction
6. Compliance possibility - you can’t come up with laws which people can’t comply with.
7. Constancy - they have to be fairly constant.
8. Congruence between declared rule and efficient action - if you create a law, make sure
it is implemented.

Criticism: Just because you follow these desiderata, does not mean that you will have morally
correct laws. Ex: Apartheid complied with all desiderata
This made Fuller modify his thesis. Now, he believes: Law is a purposive enterprise,
dependent on its success on the energy and consciousness of the people who follow it.

Important Contributions of Fuller:

Natural Law School - connection between law and morality

Natural Law School should not just look at ends but also the means
Processual Arrangements

John Finnis -
Major Contributions:

1. Bridges the gap between Natural Law School and Analytical Legal Positivism -

How? In the Philosophy of Law, Natural Law is important. Aim of Natural Law is to
achieve Human Goods (certain goals to be achieved by human beings during their
lifetime). Finnis Identified 7 basic goods.
Every legal system should create an atmosphere to protect these seven basic goods.
The laws created by a legal system to achieve these goals are Positive Laws, which is
just one of the aspects of Natural Law. - this is the bridge between NLS and ALP

2. Influenced by Aristotle (Teleological) and Aquinas (God)

Accepts the Teleological approach but rejects God as an entity.

Still talks about the link between law and morality (common between Aristotle and
Aquinas). That link comes about when you create a legal system. (Precondition to a
legal system is you living in a society. So, when you are part of this society the idea of
morality creeps in. Morality does not exist when you are alone in a vacuum.)
Telos for Finnis is achievement of the seven basic goods.

Characteristics of the Seven Basic Goods:

 1. Pre moral - Till the time we have not identified the seven basic goods, we live in a pre-
moral society. Even in the pre- moral phase, we have an idea of morality, which is
actually the seven basic goods
2. Self evident - seven basic goods are self evident. Everybody agrees to the seven basic
goods.

SEVEN BASIC GOODS

1. Life - self preservation and self determination (who you are, what you are, how you
make your choice, your realisation of self to the extent to which you decide what you
want for yourself)
2. Knowledge (for its own sake) - not for your own aim/ goals but only motivated by self
curiosity and quest for answers.
3. Play - you are actively involved in the act of play
4. Aesthetic Experiences - appreciation of beauty. You are not an active participant, you
are a spectator to the beauty of nature (distinction between play and aesthetic
experiences)
5. Sociability - friendship
6. Practical Reasonableness - make choices based on rationality while making choices.
Finnis gives 9 requirements for practical reasonableness.
7. Religion - your quest to understand what is beyond human beings. Spirituality - not
just a belief in God.

9 Requirements for Practical Reasonableness:

1. Pursuit of Goods
2. Coherent plan of life - we have to have an understanding on the ends we have to
achieve. Consequentialist.
3. No arbitrary preference among values - values are the seven goods. There shouldn’t
be any bias while choosing between different goods.
4. No arbitrary preference among persons - Ex: doctrine of reasonable classification.
5. Detachment and Commitment - you have to open minded enough to detach yourself
from things (ex: detaching yourself from religion to respect other people’s choices).
Commitment is the commitment to achieve the goods.
6. Limited relevance of consequences - he does not want you to be utilitarian. He wants
you to keep consequences in mind but only up to a limit. It is not always the ends that
are important, but the means as well.
7. Respect for every basic value in every act - when we act, we have to act in
accordance with respect to these seven basic goods.
8. Requirement of common good - you do not have to be selfish in making choices, you
have to make choices based on common good as well
9. Following your own conscience - don’t force yourself to do something you do not
want to do.
POSITIVIST SCHOOL

Reasons for the shift from what 'ought to be' to what ‘is’ (18th century):

1. Sovereignty - Both Bentham and Austin were very interested in the sovereign as the
legitimate authority to issue laws.
2. Nation States - Role of Church

David Hume -

Started critiquing Natural Law School.

Said that normative rules cannot be treated as objective facts. Morality is not
something Law must concern itself with - Separation Theory.
Instead, we must look at utility (greatest happiness of greatest number) and how we
can derive utility. He is the one who inspired Bentham to think about utility theory.

Jeremy Bentham -

Role of courts is different from that of the judiciary. Legislation comes before, courts
punish when action actually happens. Bentham was not really interested in the role of
courts.
Dog example - you wait for dog to do something bad THEN punish him. Same with
humans.

Utility Theory:

Telos: Greatest Happiness of the Greatest Number

Two forces in human life - pleasure vs. pain. For quantifying utility in the sense of
pleasure and pain, we look at intense happiness. To calculate this, we have the
Calculus of Felicity.
Consequentialist Approach. If consequences leads to happiness of the greatest
number, the law is valid
In this process, notion of morality gets sidelined. The sovereign applies the calculus of
facility to provide valid laws - this is what the sovereign is guided by.

Sovereignty:
 Characterisation of sovereignty: Divided and Partial

John Austin -

Law is the command of sovereign, backed by sanction.

Student of Bentham. Largely influenced by him. Austin takes whatever Bentham said
forward.
Command Theory
Imperative Theory - Power hierarchy. Law always flows from superior to inferior.

3 Imp notions for Austin’s definition of Positivism:

1. Command:

Law is a command.
Criticism for this characterization of law as hierarchal (command will be given
from superior to inferior) - law focusses more on equality (human rights, etc)
Criticism: command is always prohibitionary rather than something giving permission.
His understanding is more for criminal laws rather than civil laws.

2. Sovereign:

Sovereignty is always going to be illimitable and indivisible.

That means one will have a determinate sovereign (it will be one person or a body of
persons who exercises this sovereignty).

3. Sanctions:

Coercion - penalty for not doing what you’re supposed to do.

Criticism: Enforcement is very important. Austin does not talk about it. Not all
legislations have sanction and are purely regulatory.
Criticism: Voluntary obedience - Crimes still happen.

Nature of Laws: Criminal

Role of Judiciary: (Same as Bentham)

Role of courts is different from that of the judiciary. Legislation comes before, courts
punish when action actually happens. Bentham was not really interested in the role of
courts.
Prior Command: Role of Judiciary should be less. Dictate what law IS first. Notion of
 rights and judiciary protecting rights does not sit well with Austin
Dog example - you wait for dog to do something bad THEN punish him. Same with
humans.
Habitual Obedience: you obey because you’re scared of punishment, however we
majorly obey command of sovereign because we’re habituated to this obedience. This
psychological factor is a fact; it is not a legal character or element which makes us
follow laws, it is something outside of law that is the important factor.

Classification of Laws:

1. Laws properly so- called: have all three imp elements

2. Laws improperly so- called: one of the constituting elements is absent like laws
without sanction, or social laws,
3. Morality: Exi sts other than the above two. International Law is not a law, but rather it
is international morality, or positive morality (as in, it is written down). There are no
sanctions (not legally bound), no sovereign, no command - so it is not a law but just
positive morality. You have agreed to certain conditions written down that will dictate
how you will conduct yourself.

(First two are proper laws, third is not. So, international law is basically stupid)

From classical Analytical Legal Positivism to Modern ALP.

1. Seperation thesis (law and morals)

2. Pedigree thesis (conditions of validity of law- manner, form, source)
3. Discretion thesis (judges make the law)

According to the pedigree thesis one would look at a manner, form and source of the law. an
example would be delegated legislations that are made up by a person/ tribunal with
delegated power.
the discretion enjoyed by the judge is very high and ultimate as the court while deciding a
case they come up with a new rule and this can be seen in the judges as a company.

Hans Kelson:
He believes that NLS confuses law with morality
I.e they call morality as law while deriving rights from nature.
and ALP confuses law with fact
he also derives from Hume while criticising ALP's thought process. ALP assumes all
premises as is, but concludes ought. this is a conclusion which cannot be reached with the
current premises and therefore is a fallacy.

Kelson's 'Pure Theory of Law'

law is a pure science. he states that social sciences are not useful to study law or form
law such as psychology, history etc. this 'isolation of law' is further sustained when he
says the Normative Jurisprudence and Sociology of law go hand in hand. Normative
 Jurisprudence deals with validity of law while the sociology of law deals with the
efficacy of law.
Kelson deriving from Kant calls laws as norms and therefore 'becomes a normative
proposition which believes in the existence of a valid norm.' he further states there
needs to be presupposition of validity of certain laws such as originating laws as the
constitution. (Basic norm)
he further states that its a pyramid which on top of it has a basic norm and the top
down approach has every norm (law) derive its validity from the basic norm. this
basic norm may differ from legal system to legal system.
for Kelson, basic norm is non-positivist as its validity is pre-supposed.
kelson talks about efficacy of the legal system he says effectiveness of every legal
system is based upon the Grundnorm. Effectiveness of a legal system is the condition
for the validity of a grundnorm. Kelsen is at the view that legal systems become
effective when it works according to a Grundnorm. Its effectiveness proves when it will
be adopted by all legal systems.
Kelson also believes in the role of sanctions and states that it shall be official which
Freeman interprets as a structure to pass laws which are legally binding as they are
official, norms, laws. the norm 'X' is what one ought to do when not done is treated by
sanction 'Y.'
Kelson gets criticised:

1. Basic norm/ Grundnorm: Nelson nowhere states on how to reach such basic norm:
ideally it should be universal but cannot practically.
2. His idea of sanctions gets criticised as he studies only obligations but not duty based
laws. (throws away concept of state to replace it with legal system)
3. Narrow scope of law and sanctions
4. The concept of purity is not pure at all as it can never take place in a practical
manifestation.

HLA Hart:
For Hart, law is a set of rules. Criticising Austin, he says one cannot determine who is
the sovereign.

You derive rules from human social practices (patterned behaviour) which become social
rules. Even rules of morality are part of a social rule but then Hart says that every social rule is
not a legal rule.
Criticising Austin with gunman example he says the gunman have authority backed by
sanction, but does not get to be sovereign.
he states that primary rules are generally 'duty imposing laws/rules.' There is a problem with
these as they are
(i) uncertain and
(ii) static: always duty imposing. there might be clashes among different duties.
(iii) ineffective: as they do not evolve with the society, they may be counter productive to each
other.
other.
Hart comes up with a solution that there are secondary rules which solve this problem and
give authority to the rules in general.
(i) uncertainty solved by rule of recognition
(ii) static solved by rule of change (amendment)
(iii) inefficient solved by rule of adjudication
Internal law is also categorised as critical reflective recognition and this secondary rule of
recognition is the most important in nature.
It is the rule of recognition which is what provides validity of law. this is the most important
aspect of the secondary rule for Hart.
Hart says that every different legal system will have a different rule of recognition.
There is a criticism of rule of recognition. if the officers have a different contention of law then
it will not be accepted, this is the major line of thought in tribal jurisprudence.

For Hart, the judges have a role to play regarding interpretation of the open texture of law in
which the 'closed core' is what is interpreted as it is but when that closed core is questioned
then the judges have a role to play.