Jurisprudence Notes Complete
Jurisprudence Notes Complete
Jurisprudence Notes Complete
Approaches: source based, procedure based, content based (moral quality) and objective based
School of thoughts: positivism, natural law school, historical law school and realism
(Judges/Courts)
John Austin [province of the jurisprudence determined, Lecture 1 and 6]: he was the first
law
not as political
as political superior
positive morality superiors for non
for political inferiors
political superiors
Customs are not counted under positive law because the human being who started that custom is
Sovereign:
Determinate human superior [someone who can be identified at any given point of time.
Indivisible
Unlimited.
the people are indeterminate group, therefore people cannot be considered sovereign. As one
of parliament are changing but can be determined at any point of time. It may be small or
large.
Apart from parliament, any king or monarch is a sovereign. Even autocrats are sovereign.
Positive mark: it means most of the people are obeying most of the commands. Certain
commands may be disobeyed. Apart from this, there may be some dissenters who may not be
obeying any command but if they are very small in no., it won’t affect the sovereign. Bulk of the
people should obey the command and bulk is much more than the simple majority. This is called
the positive mark. It must have this quality to make the bulk obey laws and commands.
Negative mark: Sovereign should not regulate, direct or in any way be affected by any other
Indivisible: there should be only 1 sovereign. In the cases where 2 sovereigns are present, there
Unlimited: the rule making power of the sovereign should not be defined and limited or
Therefore, the command of this sovereign would be law. A command (Expression of a wish in a
imperative form, one must follow them) is a significance of desire. But a command is
distinguished from other significations of desire. A party to whom it is directed is liable to evil
from the sovereign in case he does not comply with the desire.
Sanction is an evil consequence of not following the command. People are obliged to do or
forbear the command. Such evil consequence should not be a natural consequence. It should be
coming from a sovereign. Judiciary can never ask government to ask government to make a law.
Evil consequence should emerge from the State and not the societal behavior. E.g. beaten up by
Parliament has unlimited law making power as the judiciary may declare a law void at a future
Law making power is always limited by the constitution, therefore the theory of Austin is not
Supreme Court judgments can always be abrogated by the Parliament, therefore Judiciary cannot
Tacit command is an indirect command, like Judiciary makes a case law and Parliament stays
What gives law quality to a legislation from Austin’s view? The source, the authority, the
London charter: it emerged the allied forces who are occupying Germany. It also is a law from
the point of view of Austin. London charter made ex post facto criminal legislation, therefore
obedience of that cannot be traced to past events. Therefore, London Charter was unjust but still
was a law.
Prediction of future of nations where tussle for power is going on: yes, prediction can be done.
Either one power will eliminate other or the nation would be divided.
Does Austin’s theory help us understand why people obey law?? Fear, self interest, clarity in the
system, as a habit, proper system, reverence, because we are the creators of these laws i.e. idea
of freedom (I create the law and I follow). Austin’s theory makes no distinction between these
ingredients and it does not mattered with why people obey law. How to distinguish between
good and bad rulers. In Austin’s theory, only obedience is meant for. Qualitative distinction
Why a sovereign is a legitimate sovereign?? As he is powerful and can compel people to follow
laws. The only factor which makes sovereign a legitimate sovereign is he being powerful and
having the ability to make people compel to follow laws. Idea of legitimacy is linked with idea of
power. But this leads to similar situation as found in state of nature i.e. might is right. His theory
does not create any distinction between state of nature and state of civil society. He also talks
about one powerful power and no transfer of society from state of nature to civil society.
In Austin’s theory, it is not necessary that the people may have chosen their ruler. Any authority
Austin’s theory does not help us understand how a sovereign is legitimately replaced by another
anyone successfully bypasses such process, such authority would not be considered as legitimate
sovereign. He links the idea of sovereignty with power. Which makes no distinction between
. it is morally neutral theory,. He do not passes any moral judgemednt and is not concerned with
what should be done and how things should be changed. Austin’s theoty is also a descriptive
theory as it is very scientific in nature and is not concerned with quality of law and ruler.
Austin’s theory tells us what is law and not what ought to be a law. Positivism deals with the
former part and he is neutral and do not prescribe any regulations and provide descriptive theory.
Whereas the later part is prescriptive and he participates in the events by suggesting different
Does austin’s theory describes the law comprehensively? Austin has omitted certain things such
as: 1. Customs, the realities is all the legal systems do consider customs as laws. 2.source of the
power of sovereign….constitutions provide the law making power in limited sense, he has
completely omitted the whole concept of constitution. 3. He is only concerned with laws which
are backed by sanctions. He is not concerned with the laws without sactions e.g. preambles,
declaratory laws, definition clauses, repealing section and the legislations which are beneficial
and welfare legislations. Following of certain directions may lead to certain incentives but not
following may not lead to any evil are not concerned as law in Austin’s theory. To justify
Austin’s theory, the meaning of sanction has to be stretched to include incentives even.
Custom are also law as origin of these ideas are not concerned with, only thing required is it the
Assembly case: the trial of this case started without knowing the fact that bhagat singh was also
the person
He was imprisoned for life. During that, he confessed of the Lahore Conspiracy Case. So he was
Austin’s theory is based on command duty model and do not provide any justification for the
legitimacy of law and ruler but only power. Power is the only justification for the justification of
law and ruler. Conviction in law should there, law should be collateral to fear. This is one of the
HLA HART
External aspect: used by magistrates to find the guilt of the person. Comparing action of the
Internal aspect: used by masses to pass their judgment or moral judgment about his fellow
human beings. Internal aspect is conviction for a law and belief in that law. If the society losses
conviction in a law, the law breaker would not be considered as a criminal. In Austin’s theory,
the distinction between both of these is overruled and he was only concerned with external
aspect. The law should be such that every law breaker should be legally guilty and as well as
morally guilty. Law should be used in daily life of the masses and feeling of criminality about a
crime should be present in the masses. Law should also be used by the people as a standard of
moral judgments.
state of nature. Austin’s modal reinforces state of nature by saying that more powerful
becomes the sovereign so that he can make the other oblige to follow the laws.
Since it is a descriptive theory of law, it does not adequately describes the reality of law
Some laws do not fit in the command manner, e.g. repealing law, declaratory law,
definition clause
He does not provide any rule for transition of power, the derivation of legitimacy of the
new ruler is not defined. The only condition provided is that the new ruler possess power
to be a sovereign.
External/internal aspects of law are completely overruled. His modal is useful only for
judges and not for the people. If people do not have conviction in law, its violators
TA: Hart’s concept of international law: if international law is considered as law, a lone
standing liability may arise which would be independent of the domestic laws. law is a
justification for harming people. If international law would be considered as law, it may justify
harming people irrespective of the presence or absence of domestic law. Such lone standing
liability would be required under international law so as to provide a stage for just fights
between state and its citizens, when the citizens are unable to approach the authorities of their
states itself e.g. in the cases of corruption, if the judicial body of a nation is corrupt, the
secondary rules
solutions to
rules of rules of
rules of change the primary
recognition adjudication
rules
how to identify
which primary rules how to change the problems with the
how to adjudicate
should be rules primary rules
considered as law
There is a difference between being obliged to follow and having an obligation to follow.
Gunman example
Being obliged: one is compelled due to external factors and circumstances which are
Austin’s modal makes people obliged to follow and people are not having any obligation.
Internal aspect of law is missing only becomes it makes people obliged to follow.
Critical reflective attitude: how people generally reacts under particular situation.
Conviction in rule comes through the consent in a particular rule, which brings internal
aspects to it.
Non violent civil disobedience against bad law is alright. The ruler is not justified but the
(powerful) to political inferior. Rule is bottom to up modal and its deriving from the
Best way of distribution of resources is that everybody participates in law making. Due to
deficiency of resources, the interest of people clashes and they exert pressure on each
other, which lead to law making by everyone and not choosing one powerful monarch.
As these rules are made by the society, they uses it for social judgment even
The laws made by the mutual consent, such laws make creates obligation to follow.
As rules would be emerging from the society, they would be customary rules and there
may be many rules. which one should be adopted as a uniform method for the whole
society. Here, two customary rules may cocnflict with each other on a same subject
matter.
o How to identify out of so may existing, which is the relevant one and applicatble
on everyone.
o If somebody have broken a rule, who will pass the legal judgment. Merely having
o These rules need to changed time to time. As these are being derived from
society, aand as society keep on changing, who will change such rules. therefore,
and donts and creates obligation. To solve the upper three problems, he states that society
Secondary rules: Rules of recognition, rules of adjudication and rules of change, which
are usually found in the constitution. Legislature derives the rules as they have the power
under the constitution (which is creating power conferring rules and identifies the most
relevant rules for the whole society). Constitution also provided rule changing power to
Legislature like contract law helps in creating the obligation by the consent of the people
and sets the standard, under which the individuals can which with their mutual consent. It
does not compel to do something particular. Such laws are also treated for social
judgment. But all these laws are being validating the constitution.
Secondary rules are not creating any rules, but only confer powers. Primary rules confer
duty.
Purpose of law is to create obligations. Only then we can use law for passing judgment,
both social and judicial. If people do not take law as social standard, the lawbreakers will
be termed as hero.
People exert pressure on each other, social, psychological, economic, which lead to the
development of rules which becomes customary rules as they are compulsory for the
development of society. Such rules are primary in nature and they create obligation. They
Societies which have not solved the three problem associated to the rules, they are called
second set of rules, i.e. secondary rules which are power conferring, in which certain
presons are identified and conferred powers so as to solve the issues of the primary rules.
International law is exhibiting the presence of primary rules, but he issues of primary
rules are not present. Therefore, it is law but due to lack of problem solving mechanism,
From where the law quality comes in primary rules? How do we know that primary rule
To find out the nature of the rule, you look at the reactions of the society in cases of
deviation. If the deviation is critical and exerts pressure and guilt but not creating
violence, such rule may be only social rule. If violence takes place, such rule may be
called as legal rule. Fear of violence gives law quality. Here Austin and Hart gives the
same view.
The procedure of law making also gives the law quality to the secondary rules.
Secondary rules are regulating the primary rules. there might be unclarity in the violation
of the primary rules and the violence by the society in the deviation may even be
In advanced legal system, to determine that any activity is legitimate should be found in
conformity with the existing rules e.g. constitution. In the case of Khap Panchayat, they
were not empowered by the constitution to make rules for the society. [rule of
recognition]. But such laws could be called as social rule, which can be made legal rules
Rule of recognition is a power conferring rule which do not limit the power of the law
making body. They may choose law from the existing rules or may develop new rules.
Rule of recognition will not allow such social rules which are aginast the secondary rules,
2 principles of interpretation:
o If it is found invalid, it
o may not that the entire legislature would be struck down, only the unconstitutional
All governmental systems can fit into the theories of Austin and Hart, be it democrary or
monarchy. If the society itself confers power to the government, it would be the hart’s theory and
if the Government gets the rule making power by using power and without the consent of people,
necessary sanction
Range of application: Austin (Superior inferior) whereas hart provided that it would be
applied on the superior even. The private capacity of the rule makers is different from the
Whether rule of recognition has recognized certain primary rule as a legal rule or not. In
advanced legal system, any rule will be legal rule if it is formed by following the due process.
How to find the legality of the social rules in the absence of secondary rules? violence.
Lawfulness is to be against the secondary rules itself in advanced legal system. In the absence of
constitution, any rules made by the authority governing the state is a legitimate law.
Circularity in his theory: violent reaction of t eh society is an act of enforcement of social rule.
If social rule is enforced violently, is such act of violence is lawful act or not? If violence is in
Therefore, if the fact of violence a justification for its own existence. For hart, it is justification
for itself.
rule level and in the rudimentary legal system. From Austin as well as Hart’s view.
In advanced legal system, the violence is used to enforce law. But from Hart’s point of view,
violence is enforcing as well as creating law. The instance of violence in which the social norm
was converted into law, what is the justification of such violence. This is the problem of
circularity.
People obeying the law under the Austin’s theory is emerging only from violence only.
Hart if hoping that the societies will realize the problem and the secondary rule would be such
which disallows such violence and the societies would be good secondary rules and
constitutions. Only if the constitutions are good, violence will not be the justification of itself.
expression- making child pornography in a comic form and disseminating it is allowed under this
Sweden constitution. Berth Milton, has earned 200 milliom $ thorught the business of
pornography in Sweden.
Constitution of Islamic republic of iran: article 24; Press Law of Iran, Article 6 and 28 – if there
is anything contrary to Islamic principles and public decency in published article, it may result to
developing an adult website. He was punished under Iranian law and was given dealt penalty
lawful sentence?
Why constitutions are valid? Because society accepts it as valid. Constitutions are valid because
they are presumed to be valid. You cannot test the validity of the constitution on the touchstone
given fact. Whatever happening in the conformity of the constitution, it is valid. Content does not
Hart is replacing determinate human superior with the idea of rule of recognition as the source of
law.
Legislations are to be tested on the constitutional procedures. And the constitution are deemed to
be valid.
I am standing still in a moving train? Insider perspective and the outsider perspective.
Constitutions are developed by the society itself, any law made in its conformity is legal by the
society’s internal perspective. The outsider perspective means the perspective which may be
Judging constitutions from internal perspective won’t lead to any conclusion and everything
done in conformity of it would be right for th society. There is a chance of perpetual suppression
of minority. No reforms would take place and it would be very difficult for having change in the
constitution.
Which outsider perspective is the relevant perspective for checking the validity of the
Can law have any content? Is there any connection between law and morality?
If we presume humans desire to live, then the result shall be that law and morality will have an
intersection in the form of natural law. Such natural laws are the foundation of laws and
morality. The connection between law and morality is the natural law.
In the classical approach, it is the application of human reason and to observe the natural growth.
– Plato, Aristotle, St. Thomas, Aquinas. Applying this kind of reasoning, they conclude that
anything with interferes with natural growth and natural law is wrong. Natural tendencies should
not be do away with. Anything done against the order of the nature is wrong. If you observe the
Hart believes that this way is wrong, because what we discover by adopting this method by
applying human reasons is what happens and if what happens is laid down in law, it would
describe what law is. Such laws are descriptive laws whereas human laws are supposed to be
prescriptive. They are supposed to laid down, what should be done and what should not.
If a prescriptive law is broken, it still remains valid. But if a descriptive law is found broken, it
does not no longer remains valid. Even if one exception is found of the descriptive law, it longer
Approximate equality, (we all are living within a certain range, approx equality in
Limited altruism, (a sense of sacrifice for other, human beings are always in a grey zone)
A system of mutual cooperation, we arrive at this system when we feel that we all are
weak at some points. E.g. different countries, a system of mutual cooperation do not
occur as some countries are strong and some are very weak. But when the strong
countries start getting vulnerable, this mutual cooperation starts. This system of mutual
cooperation occurs, only when the humans are bound by the above limitation.
gets collected together and punish the law breaker. Here lies the idea of state. The
Some minimum form of protection for persons, property and promises develops.
of Christianity, principles of Islam and principles of Buddhism. And laws include criminal law,
Traditional natural law view: if it is too iniquitous or bad, then it should not be treated as law.
Hart’s view: bad law is still a law, but is should not be obeyed
Law is getting interpreted is influenced by moral considerations. In this manner, morality enters
Legislators are also considered by moral considerations. E.g. minimum wages Act. A more
fortunate person should not be allowed to oppress the less fortunate people.
HLA Hart believes that law such connection is no valid. No matter how the laws are influenced
by morality, any law made or pronouncement of judge is a law because the constitution allows
the respective bodies to make laws. The outcome shall be the law in every case if it is made in
accordance with the rule of recognition. So he asserts is that law and morality are connected.
If a law is made ignoring the 5 basic truism, what shall be the status of such law?
2. hart’s view: it is law, immoral law is still a law but we do have no obligation to obey the law.
Human beings have no prima facie obligation to obey law. He believes that morality a is a very
important dimension of human life. But if we confuse morality with law, than we are
undermining the force of morality to . morality should be used to judge the quality of a law and
not the legality of the law. Because if immoral law is no law, then there can be no bad law. There
will be either good law or no law. But hart believews that there can be good and both law. And
this bifurcation would be maintained only if morality is not made the integral part of law.
Whenever we see an immoral law, its not sufficient to say its not immoral law. There are many
other factors even. There are layers of morality involves. First stage is the morality of the
legislations. The people are free to disobey such laws but one should not run away from the
Morality of the judgment which was given by a judge on the basis of the immoral law?
2. morality of the person who are breaking the law for it being immoral
You maintain sanctity and necessary complexity, morality should be kept separate from law.
In Nuremburg trial, Hart’s view is that the retrospective application of the law to punish was the
right step. They had to choose between two evils, not punishing them or of punishing them. They
choose the right one. But the point he made that, one should be honest in submitting that they are
making a mistake. If you are feeling any guilt in doing such executions, it may become the habit
There is a connection between law and morality but then even law can have any content.
Test for constitution: if the constitution is solving the problem for 5 truism.
HANS KELSEN
Method of antinomy: it is said that antinomy is a technique which is used by scholars which are
coming from the German Region. Specifically, Emanuel Kant and Hans Kelsen.
The author will tell you some fact and then he would explain such fact by certain explanations,
and such explanations are exhaustive and then he will tell that all the explanations are wrong,
thereby proving that the fact is wrong. Then the author will tell you something something which
is overlooked. The author misleads the reader in telling that the explanations are exhaustive.
Jurisprudential antinomy: there is law which is a fact, some scholars relates law with the idea of
morality, the validity of law is dependent upon morality (morality thesis) (natural law school),
there are even such scholars which asserts that law do not depend on morality but such scholars
depend of certain other fact present in the society, power of sovereign in Austin’s theory and
consent and primary rules in the Hart’s theory (separability thesis). If we say both ideas are
wrong, law is neither related to morality nor on a social fact, then comes the jurisprudential
antinomy.
Why pure theory? Law and legal theory are two different things. Law may be different from one
system to the other, but legal theories are universal in nature. So the purpose of writing a theory
is to explain all types of law and legal system. So that is possible only if one could write a theory
which is not dependent on morality or social fact and on something which is common in all legal
systems. Such commonality should be the basis for the writing the theory and such theory would
be pure in nature. Morality is impure as it differs on time to time and place to place basis. Purity
means to avoid all the variables that are there in the society. Morality and social fact are variable.
Relation between law and morality: nor separable (morality thesis) (natural theory); separable
Relation between law and fact: are separable (normative thesis); non separable (reductive thesis)
Natural law (law and morality are not separable but law and fact are separable.) radbruch and
fuller
Pure theory (law and morality are separable and law and fact are even separable) Hans Kelsen
Empirico-postivist theory (law and morality are separable but law and fact are not separabe).
Kelsen says idea of law as command or rule is wrong. He stated that law is to be seen as norm.
norm is an ought preposition. But such legal ought (prescriptive) proposition is different from
If the phenomenon does not match with the scientific norm, such norm would be false. Legal
norm remains to be true even if there is non-compliance of the norm. legal norm is either valid or
not valid and not true or false. Therefore its validity is not contingent with its compliance.
If we look at Austin, if the suppose that bulk of the society is not obeying the law, such law
would not be a law anymore. Compliance brings law. In Hart, if consent is there, such law is law.
Therefore, all these scholars are related to a social fact. But kelsen says that law has to remain
valid even if there is non compliance. Even if law is immoral, they are still valid.
Norm is a system of hierarchy, and every lower norm derives its validity from the superior laws.
the highest norm is called the basic norm and all the other norms derives their validity from that
basic norm. norms do not derives validity from its compliance but from its compliance. This is
called as the normative structure and every layer of this structure is valid because of the higher
The basic norm merely establishes a certain authority, which may well in turn vest norm creating
power in some other authorities. Basic norm of a positive legal order is nothing but the
fundamental rule according to which the various norms of the order are to be created. Basic norm
is a ultimate rule according to which the norm of this order are established are annulled, recivee
The function of the grundnorm is to provide validity to the other norms. This is a defined version
Validity of the basic norm? because prior to the present document, one will find some prior
document which allows the present constitution to be present. Therefore, constitution is not the
constitution that is the first historically and that was laid down by an individual usurper or by
some kind of assembly. Grundnorm is a presupposition that the historically first constitution was
Basic norm is not created in a legal procedure by a law creating organ. Basic norm is only the
necessary presupposition.
The structure of norm is dynamic and therefore, the norms are not static and they keep on
changing. Act of a judge is also creating a norm and ought proposition. But such norm is not a
A parallel system cannot be established in this structure. There can be only one basic norm.
International law is a grundnorm or not: it is not because if it is considered the grundnorm, the
whole would be under the same legal order. Parallel systems are suggested by the author, one at
the municipal level and one at the international level. But in reality, international norm cannot be
the grundnorm
Change in grundnorm:
Why pure theory: universally applicable in all legal systems, does not changes with its violation,
There are the groups of usurpers who laid down the first laws of the society. Such body was out
Case of Libya: king Idris, gaddafi, national transition council, general national congress, house
of representatives, new general national congress (what are the parameters for determining the
validity).
Case of turkey: Recep Tayyip Erdogan (Current Prez), last year there was an attempted coup
Legitimacy of the trials of coup plotters in Ankara Court in light of the Gaddafi’s event.
Hart believes that when there is a forced changed situation, there might be some intermediate
period where the legitimacy such rule would be uncertain. Such confused stage may last for a
long time even. But eventually, a rule of recognition would be there and a new government could
emerge.
According to Hans Kelsen, a whole legal order is getting changed in the coup situations. All that
changes is the reason for validity of the norms as constitution is changed. The content of norms
is not changed.
There can be two situations: coup succeeds (new legal order emerges)
In coup situations, new legal order emerges as the grundnorm is changed and therefore, all the
other norms, though having same content, have to tested on new grundnorm.
The test of legitimacy is effectivenss as one should be able to control the regime in a effective
manner e.g. having judiciary and police and parliament under control.
When the coup fails, the acts would be tested upon the older grundnorm and the behavior would
be tested on the touchstone of existing grundnorm. If coup succeeds, the acts would be tested on
the new grundnorm. The coup fails because it could not be effective.
From Kelsen’s point of view, Libya is divided into two countries as two grundnorm have
emerged.
Why constitutions are valid only if the legal order established on the basis of this constitution, on
the whole, efficacious. This efficaciousness can be tested on the ability to effectuate the other
lower laws.
How is Kelsen different from Austin. How Kelsen’s theory is different from Positive mark of
Austin.
When the preposition is arrived… it is arrived when the lower norms are effective.
If a successful coup happens, a new basic norm emerges but the other laws may remain same.
but this is even a new legal order. The content of the lower norms remains same, but their
If the coup succeed, their actions cannot be judged on the previous basic norms and therefore
The constitution is valid because the whole structure being validated by the basic norm is
effective.
The basic norms of the different national legal orders are themselves based on a general norm of
the international legal order…from the standpoint of international law, the constitution of a state
is valid only if the legal order established on the bais of this contitutiton is, on the whole,
efficacious.
According to the principle of international law, an actually established authority I the legitimate
government, the coercive order enacted by this government is the legal order, and the community
constituted by this legal order is a state in the sense of international law, in so far as this is, on
From Hart’s perspective, if the ruler is elected by the constitutional procedure, then he is a
legitimate rule.
From Kelsen’s perspective, the ruler would be valid only if he has effective control. The
Change of mindset of the people when new sovereign comes is the presupposition.
Case of Rhodesia: Ian Doughlus Smith was the PM, it was a self governing British colony, it
R v Ndhlovu
The court relied exclusively on all these cases. The effectiveness was measured by the judges,
not on the degree of obediences as it changes on case to case basis, it was measure on the unison
of the main organs of the state. As long as the parliament and the police and the military and the
judiciary and other important organs are together and are not fighting or revolting against each
other, such regimes is effective. If these crucial organs are in unison, people start following the
regime.
He does not any where states the manner in which this effective control should be there.
J W Harris: loyal judge or a legal science judge. Kelsen wants a judge to be a legal science
judge. Loyal judge has loyalty in the constitution under which he was made a judge. So he will
resign after coup or would declare everything as void. Legal science judge has to decide cases
considering the reality of the society and the efficacy of the regime. He observes the
phenomenon and reality and based on those actualities he decides the matters. When a new
regime is a good regime, it is good to be a legal science judge. But in mattes where taking over
the country is wrong and may not be apparently legitimate and therefore it is better to be a loyal
judge and good citizen but not a good judge. Good judge is a legal science judge.
spoken)
legitimate)
recognition goes
defunct)
When do we need to Every day. But, Every day. But, Every day. But,
understand these thing specifically during the specifically during the specifically during the
certain featured.
Who discovers The authorities who The authorities who The authorities who
What is it that the Obedience by the bulk Prior consent of Effectiveness of the
Criticism:
Initially he starts by saying that his theory is pure, when we reaches to the grundnorm, it
This theory is so neutral in describing the phenomenon of the reality that it may justify
any regime. His theory of legal science judge supports this claim. Hans Kelsen believes
that loyalty of the judges should be to the grundnorm and not the constitution. If
Constitution changes, judge should not resign. A legal science judge will say one who
comes to power and who is effectively controlling the people, would be a legitimate ruler.
The goodness or badness of the rule and rule is immaterial. This means that a legal
science judge might not be a good citizen as he accepts something very bad as legitimate.
If one blindly applies this theory, on might legitimize the bad regime.
natural law
Main author of medieval period: St. Thomas who gave the difference between eternal law and
natural law.
Thomas believed that there is eternal law which binds all of us e.g. law of motion (mango seed
Gustav Radbruch: five minutes of legal philosophy (1945); statutory lawlessness and supra
statutory law (1946): An immoral law is not law. Law and morality have no connection and
was a pure positivist. When he witnessed the atrocities of the Nazis and changed his stance. He is
The validity of law cannot be exclusively based upon a factum of power. In positivism, the
validity is based on power. Power justifies the law. Radbruch disbelieves this proposition. The
validity depends upon some intrinsic feature of the law and contents of the law. There are three
thing that the law does: public good (Purposiveness), provide certainty in the system (though it
may be a bad law, but it makes the circumstances certain) and justice (certainty and justice are
same as certainty is the dimension of justice or an aspect of justice). Out of these three, justice is
the highest virtue and certainty is second. There might be legislation which are providing
certainty but not doing justice. E.g. legislations made by Hitler. When certainty and justice are at
clash, he suggests a formula of those times, i.e. if the law is properly made, the positive law
secured by legislature and power, takes precedence even when its content is unjust and fails to
benefits the people, unless the conflict between statute and justice reaches such an intolerable
In order to maintain certainty and to have clarity in the system, legislation which do no public
good or justice is still if it provides certainty irrespective of its content as it is made by due
process of law, but if the injustice done by such legislation reaches to the level of intolerability, it
cannot be called as a law. Then it is justice which should prevail and not the law.
Justice:
Equality
When these above features are absent grossly in a statute, it is referred as statutory lawlessness. It
is impossible to derive a accurate formula for judging this grossly violation of the above feature.
No sharper line can be drawn and it depends upon case to case circumstances.
Supra statutory law means presence of respect for equality, human life and proportionality in
punishment. Statutory law should be controlled on the basis of supra statutory platform.
Some violation of these feature, does not result into lawlessness. Such violation should be
intolerably high and there should be gross violation of these features. The prima facie
assumption is the validity of law if it is made by following the due process of law.
National socialist law would extricate itself from the essential requirement of justice, namely, the
equal treatment of equals. It thereby lacks completely the very nature of law; it is not merely
When there is a tussle between justice and certainty, which should prevail is determined by the
Whether a legislature is so designed that there is no effort at all to do justice, then it is gross
The law of east Germany can survive only for as long as the state authority which brought it into
being in existence.
The requirement of objective justice, which also embraces the need to respect the human rights
recognized by the international community, makes it impossible for a court to accept such
justifications.
Where a statutory provisions was intolerably inconsistent with justice, that provisions should be
Interpretations to the east Germany’s law was not law as they were devoid of the content, i.e.
human rights.
When they approached the European Court of Human Rights under Article 7(1).
Arguments: appellants: the conviction after the unification was not foreseeable, the presumption
is that the country is going to be there in future even and therefore the laws of the country should
apply; never prosecuted in the GDR; border policing regime had essential to preserve the
existence of the GDR; no international body had censured the GDR for violation of its
provisions, even if that was the case, there was a fundamental difference between state’s
responsibility under international law, on the one hand, and the criminal responsibility of an
individual under domestic criminal law, on the other; in maximum jurisdictions, majority to state
access to the border was forbidden or strictly regulated and use of firearms is authorized if such
Defense: anyone could have foreseen that the killing of unarmed fugitives who were not a threat
to anyone might give rise to criminal prosecution under the relevant legal provisions,
Court: it can not be criticized for interpreting the legal provisions in force at the material tie in
the light of the principles government a state subject to the rule of law. GDR’s law were not
relevant, judges are expected to apply the law neutrally and impartially, unjust law is valid law,
authorities implementing such law cannot be held guilty, like in grudge informers case: judges
Naturalist: justice is internal to law, content of law is relevant, unjust law is not a valid law, if
authorities are applying the laws which are devoid of such content are guilty.
L. L. FULLER
Nature of Radbruch’s theory is very subjective, fuller claims that his theory is objective.
Law and morality have an essential connection. He is disturbed by the fact that no one knows
what is morality. He explains morality in the context of law. He states that law is connected to
morality in two ways: morality stands external to law (law is made to achieve certain purpose
and objective, law functions like a tool in the hands of the legislator, purpose independent of the
law could be moral or immoral, the morality of law is different from the purpose for which the
law is made. When the purpose is unlawful, morality is relating to law externally and its immoral
law); morality relates with law internally (independent of the purpose, purpose may be lawful or
unlawful, the word morality means having certain necessary conditions present in the legal
of compliance, consistency through time, congruence between official action and declared rules;
irrespective of the purpose and subject matter, if these points are present, law would be internally
moral, content of law may be bad, but then even if the above points are achieved, it would be
moral). He states that law must be internally moral, these 8 desiderata are the essentials of the
law and if the law is devoid of these 8 desiderata, then the legislature has failed in its duty and
the morality of duty is not achieved. More and more one satisfies these conditions, one makes
better and better laws. These 8 desiderates is one single scale to understand what is law and is it
moral or not.
He believes that from legislature to legislature, there would be maximum satisfaction of these
conditions but some of these conditions would be failed occasionally. But if the contents are
grossly devoid of such desiderates, then the legislature has failed to create a legal system.
If a legal system by and large achieves the maximum conditions, then such legal system is not
the utopian legal system as all the conditions are not fulfilled.
A total failure in any one of these eight directions does not simply result in a bad system of law.
Everything cannot be called as law like small ordinances, and administrative orders as these may
If one violates one condition today, tomorrow the legislature may violate the other conditions as
The stringency with which the eight desiderata as a whole should be applied, as well as their
priority in ranking with regard to the specific law and its purpose.
Natural indicates something which is beyond our control: fuller states that his theory is the
procedural version of the natural law, he is not concerned about the substantive contents of the
laws. he focused on procedural version because substantive law is always disputable, because it
is subjective as to the specific persons and their nature. But procedural law can never be
disputed. He is trying to avoid the controversy of the natural law with regard to the substantive
law.
He does not prescribe any standard for judging the external morality.
How can we claim that eight desiderata ensure morality? Morality means treating people with
respect and concern. When a legal system no matter what the contents of laws are, when the
legal system satisfies these conditions, the result is that people are given ample of opportunities
to organize their life. When these factors are achieved, it shows a particular conception of the
human mind, the conception is that the people are intelligent enough to organize their life when
the rules are told beforehand. No matter what the rules are, if they are told to the people after
satisfaction of these factors, states is treating people as capable of making autonomous choice
and treats people with respect and concern and state action can be called morally good.
One cannot run an immoral purpose with the aid of an internally moral law!
These 8 conditions are psesent, is it possible that the state is satisfying these conditions and still
Creating law
If the ultimate objective of law making is bad, then law would be devoid of internal morality.
Simmonds: if the legislature want to treat citizens with respect, they have to follow these
desiderates.
Prudential reasons: bases of awareness and thoughtfulness. They are primarily guided by self
Moral reasons: guided by the interest of society and other than the individual himself.
Morality of law denotes respect for the citizens.
Presence of these 8 factors ensures self determination and the state indicates respect in a manner
Fuller: morality is realted with law externally as well as internally; internal morality ensures the
presence of rule of law; if the substantive aim of law is evil then it is bound to affect the internal
morality of law; rule of law is linked with the idea of self determination; rule of law ensures
freedom for the citizenry; it exhibits respect for the citizenry; thus rule of law is a moral ides; if
there is rule of law only then there is law; if there is rule of law the rule is morally good.
Kramer’s Position: rule of law does not provide any autonomy and self determination (Gunman
example: the question of autonomy cannot be answered without reference to the substance of the
rule and not only the manner in which the law is laid down, which may be by fulfilling the 8
desiderates); the adherence to rule of law may be due to prudential reasons and not due to any
respect for others (Smoking example). If these are prudential reasons, the regime may be
working for the self interest. If the reason for adhering to rule of law is to show that the regime is
good, this might be a testament to the moral significance of the rule of law. However, that is not
the case. Following rule of law for prudential reasons are the actions which are morally neutral
and not morally good; the reason for an evil regime to stick to rule of law shall be: to give clear
cut directions to citizens, to foster incentives for obedience, to enable officials to coordinate their
activities. All these are prudential reasons; officials in repressive and exploitative regimes have
sold prudential reasons to abide by the rule of law. Even a bad regime would not want that in the
eyes of law, regime should be morally good. If extra judicial punishments are there, then it may
create a situation in the minds of the citizens that even if they do follow law, they might be
oppressed by the state. Therefore, finding no incentives to follow the rule, the citizens may keep
on violating the law. Therefore, it’s in the self interest of a regime to follow rule of law to keep
If one really wants to ensure freedom, only these 8 desiderates are not enough, laws should also
be substantially good. Therefore, what matters is not the procedural morality but morality of
substantial content.
Simmonds: the idea of freedom has many meanings or perhaps many dimensions. The core of
freedom is not being in somebody else’s power. [Slave owner’s example]: if a slave owner does
not prescribe or proscribe the slave’s conduct, can we therefore conclude that slavery is not
inherently incompatible with freedom? Does that mean slavery is not unfreedom?
In rule of law the range of options with a citizen may be limited but those options are determined
by general rules. that makes citizens free from the power of others. They are governed by rules.
rules necessarily impose some limits on the powers of the officials and some limits on the duties
of citizens. Otherwise the systems cannot work. Hence there is liberty (in the sense of freedom
from the powers of others)… intrinsically linked with the idea of rule of law.
Rousseau believes that freedom is not the unlimited license to do anything of one’s choice, in
state of nature there is not freedom as people have different powers and thereby different control
by one animal over animal. In state of nature, the rule making is done by powerful for the
powerless. The essence of freedom is that when one is governed by the rule which is made by
oneself. The idea of freedom is linked with the idea that who is laying down rules for you. No
understanding of freedom, rule of law ensures freedom. This freedom may be less or more in
different countries.
With regard to the point that rule of law is serviceable to both good and bad regimes on the basis
Salute Example: an evil regime need to retain power. It needs to suppress dissent. If the regime is
following rule of law the dissenters may do subtle acts that shall amount to a compliance with
the definition given in law but yet not a real compliance with the law.
Continuous amending the legislation may derive a conclusion that the regime is weak and an evil
regime will never try to show that they are week and therefore, sooner or later, such regime is
bound to violate the rule of law and provide for extra judicial punishments. He believes that rule
of law does not serve evil regimes. Rule of law conditions are antithesis to the effective working
Simmond’s idea of what is law: differentiation between class concept (e.g. bachelor) or
archetype concept (not qualifying with the definition but it is approximately matching the
definition)(e.g. triangle). After certain threshold is cleared, anything could be a law. Anything
above such threshold would determine that how good that law is. Following the 8 desiderates, to
a good extent would make a law, a legal rule. Law is an archetypical concept. Whereas the
Traditional view: they are mere orator of law and not the creator of law.
Separation of power
Realism (how we in reality governed): 1. American realism school of thought: we are governed
by the law which is laid down by the judges. Law making is done by judges in all cases. Justice
Holmes and Jereme Frank: if one want to understand what law is, one has to look it from the
view of a bad man. Such man is not concerned about what is written in the legislature, what he is
concerned about is how the judges is going to interpret the language in his case, the manner in
which the judges interpret the law, it determines the rights, duties and liberties of the such
person. Judges can still deviate from the precedents. In every case, new parties are governed by
new rights and liabilities made by judges. This affirmation to do judges make law is unqualified
and unconditional. The Act made by legislature is not a law; it is a source of law. From such
source, it the judges who extract the laws. The consideration in making law is the policies and
morals and by such contention they asserts that law and morality is not separable.
HLA Hart to defend positivism claimed that words of the stature have open texture. It means that
words have a settled meaning and a shared understanding to a extent and beyond that words do
not have settled meaning. Whereas realism indicates that the judges have the discretion to decide
depending upon how he reads the legislation. Words would have two area, one regarding the
meaning of which there is no dispute which is called the core area and in such area the judge has
no discretion and in the other area is penumbra and which is open to judge’s discretion. Hart
believes that the idea of judicial discretion is not applicable when the words of the legislation
falls within the core area. When the case is of penumbra area, judge can employ two ways:
Mechanical way: by applying ejusdem generis, here the judge has not applied his mind as
to nowhere the judge have included moral considerations. It might be a bad way of
deciding the case, but there is no fusion between law and morality;
Judge may look into moral and policy considerations and considerations like purpose and
intent of the statute, which means judge’s decision is mixed with morality. When we say
that judge’s decision is law and when realists say the law and morality is inseparable,
they commit a major mistake. Because even if the judgment is guided by the morality,
such moral considerations do not independently becomes law. Hart believes that judges
apply the morality because the legal system allows the judges to do so and therefore there
Even if the policy of the state is immoral, one cannot say that there is a fusion between law and
Fuller: all claims of Hart are wrong. He gave the example of ‘no vehicle is allowed in the park.’:
can one enter the park on roller stake, Hart says that such roller stake case falls into penumbra.
But fuller established that every case is a penumbra case and no case can be called as the core
case. He gave the example that, let say an army truck of foreign jurisdiction is captured and have
been put on a pedestal as a memorial in the park. To answer that whether the rule is violated or
not, it is irrelevant to look into the meaning of the word vehicle and the court would be looking
into the purpose of the statute and the statute as a whole and here come the policy consideration.
One cannot consider the meaning of the words in isolation and the whole context gives the true
offence, one person has purchased a ticket and such train is delayed and while sitting on the
platform he sleeps, in a parallel situation, one person brought his bedding and just lay down but
he is awake at the platform without a ticket. Fuller says that if one looks into the entire context of
the statute, it is the second person who is violating the statute and therefore every case have
moral considerations.
Dworkin’s Idea: when Hart concedes to the fact that in penumbra areas, judges uses their
discretion, he believed that if judges have discretion, that means that in the penumbra areas there
is no pre-existing law and rights and therefore in every new case judge will create new law.
Dworkin stated that this will violate rule of law and will lack certainty. If we believe that there is
a penumbra, then every time there is a retrospectively in law because we are supposed to be
He challenges the assertion of Hart as to law making by the judges because he proves that judges
never make law and that law and morality have inseparable connection.
If realists are correct or hart is correct, then it means that when one approach the court and put
forth his case and such person asks the court for interpretation of the statutory law and judges
make law at such moments. Dworkin believed that if this is the situation, one is never governed
by the per-determined law and every law being created by judges have a retrospective
application. Therefore, when fuller first says that law should be prospective and then he says that
lay down prospective law. In this way, he proves the Hart contradicts himself as once he says
that there is a rule of recognition and then he says that there is some penumbra area.
Dworkin provides that when one goes to law, he goes there for enforcement of the pre-
determined and pre-existing right. The court would not create the rights but will enforce the
rights.
The building block of the legal system is principle. Underlined principles of all such laws present
Principles have a dimension of weight and dependent upon different circumstances, different
principles appears weightier and more reliable. Principles have a weight or gravity and which is
not constant, if all depends upon the fact that which principle gives a fair outcome.
He states that Hart’s theory is inadequate because it only deals with primary and secondary rules
and does not deal with the situation where there is absence of any rule. In such cases, Dworkin
propounded that the cases would be decided on the basis of the principles.
Dworkin stated that each case should be decided by principles. Even when the case is decided
only on the basis of rules, it is decided on a principle that ‘when rules are clear, cases should be
A theory of law must account for the existence for principles. Judgments are not based on rule
but on principles.
The nature of principles: principles do not have a fixed hierarchy; from case to case court will
choose one principle over other. Principles have a dimension of weight. They appear to be more
weighty in some circumstances and less reliable or weighty in other cases. They have a shifting
weight.
The judge should understand law as interpretation and integrity. Whenever there are hard cases
where dilemma to choose between different principles is there, here judge should find out all
such existing legal rules which are of the same character. Then discover the underlined moral
justifications of all such rules. What is that theory or principles which do justify the existence of
all such rules. Such underline moral justifications are the principles. Whenever the legislature is
laying down rules, they are advancing moral principles through such rules. Further, pre
interpretive stage (finding all the similar laws); Interpretive stage (finding the moral theory
which the state is advancing); post interpretive stage (judge is only required to advance the
principle which is already existing and case should be decided in such a manner that the
principles should not be nullified: Law as integrity. This is similar to checking precedents).
Difficulty: it is possible that after the first and second stage, a judge is discovering two equally
applicable principles. Dworkin states that here judge should exercise the concept of “fit and
appeal.” Fit: the principles which are accommodating more circumstances or which is the wider
principles or which principle is being followed in more cases. Such moral theory would be
superior moral theory. But if two principles are equally fitting, then the judge should find out that
which principle shall be shown as more morally appealing in the circumstances. Task of judge: It
is not just advancing the moral principles; it is showing the principle in the best possible manner.
Principles would always be moral principles or they would be advancing political theories. In
One has to understand the moral or political reasons of the laws by participating in such
practices. One cannot understand the reasons underlined the laws by merely observing the rules.
a theory of law can never be descriptive. A legal theory can be made only if one participates in
the law making process. The real more principles that a practice is advancing can be understood
properly in the sense of the principle which it is advancing only if one participates in it. A legal
Advantage of doing this: in the vacuum area, when one is advancing principles, one is advancing
something which is pre-existing. Through this process the parties are not taken by surprise by the
judgment. The possibility of the prediction is there. Retrospectively is curbed down. It makes
law prospective in nature. Additionally, law is inevitably intercoined with the moral and political
principles. Meaning therby, theory of law can never by separted from morality and political
principles. It is only these rules, which the judge advances and judges cannot take a drastic
Disadvantages: every legal community will have a different kind of moral and political
principles and therefore the theory of law would differ from legal system to legal system. There
would be no universal legal theory. In a given context, the right answer in one legal system
would be different in two different legal systems. Dworkin’s theory is not a theory of law, but it
is a theory of adjudication and is talking about interpretation of the laws. additionally, as he was
consistently saying that any theory of law lacking of principles is time, in the same time, in
Dwokin;s theory even, in the pre interpretive stage, one has to find out the pre-existing legal
rules and there he accepts that there are certain pre existing rules. For indentifying such rules,
one can apply the concept of rules of recognition. Hart’s apply is to be applied first and then only
Historical school: ‘German romanticism,’ German indicates the entire region near German, this
region have a typical type of understanding as to who we are where it is believed that all the
individuals are collectively one entity. Society is a living entity. When looks at society as a living
organism, it leads to various implications in subjects like art, laws, architecture etc. Historical
It all started with a proposal of Tribot that one should codify Germany’s rules. Before this, it was
governed by customary rules. he said so because in France it was for the first time a code was
created named as Code Napoleon, containing all law of France. He was inspired by the fact that
many other countries like Belgium were coping Code Napoleon. Now, German region was
different due to romanticisms from the rest of Europe. They never considered themselves as the
part of rest of Europe and therefore they believed that if any foreign law is adopted on them, it
will lead to difficulties and he believed that their law should come from inner spirit and common
Seveiny wrote a paper to rebut the proposals of Tribot. He propounded that law in its spirit is
volksgiest. He said that law should be primarily customary and should come from inner
conscience. There can be a codified law but such law should be after a lot of empirical research
where one should discover the spirit of people and in accordance to which law should be made.
Von seviny’s papers was so influential that codification of the laws in Germany was halted the
Any legislation contrary to the common consciousness is bad, irrespective of the quality of such
There might be more than one common consciousness, legislations may be trying to strike
It is even possible that legislations may even lead to emergence of common consciousness. E.g.
sati
There are many areas where there would not be a common consciousness as person may be
having no knowledge of such fields. Therefore such idea of common consciousness have
application to only a limited filed of law like family laws and laws affecting society directly and
have inclusion of such people. but in the fields like custom, import and export, common
Origin lies in utilitarianism, its oldest version is of Jereme Bentham. Every human being is
governed by two things: pleasure and pain. So all the time in doing whatever one is doing, one’s
actions are controlled by feeling of pain and pleasure. One tries to do such actions which tend to
increase out pleasure. One’s activity is guided by the desire of being happy. Therefore, it is just
and right thing to do. It was used by Bentham to evaluate laws and policies. A policy which
enhances the overall happiness of the society is the just policy. It is natural and it should be done.
In this idea, there is a problem of measurement of happiness. In the mid 20th century, this idea
was picked up by the economist of US and they replaced the idea of happiness by the idea of
wealth. Instead of happiness maximization, wealth maximization should be the criterion. They
believed that wealth is the indicator of happiness. In economic analysis, to determine the quality
of the laws, they looks into the fact that whether the laws are increasing or decreasing the wealth.
Calder Hicks Formula, Pareto efficiency test: certain tests to measure wealth is making people
happy.
#R W Dias
Richard Gosman