MODULE 1

1.1 MEANING AND RELEVANCE OF JURISPRUDENCE – GENERAL DISCUSSION

Jurisprudence-Its meaning:
Jurisprudence, in its limited sense, means elucidation of the general principles upon which
actual rules of law are based. It is concerned with rules of external conduct which persons are
constrained to obey. Therefore, etymologically jurisprudence is that science which imparts to
us knowledge about "law". The 'law' of course is a term of various connotations; here we use
the term 'law' in its abstract sense, that is to say, not in the sense of concrete statues but in the
sense of principles underlying law. Thus, for example, there are various branches of law
prevalent in a modern State such as contract, tort, crime, property, trusts, companies, labour
relations, insolvency etc. and in jurisprudence we have to study the basic principles of each of
these branches and we are not concerned with detailed rules of these laws. These have to be
studied in detail when we study those branches of law separately. This may be illustrated
further by the example of law of crimes. Jurisprudence examines the general principles of
penal liability but it does not attempt to detail out the essentials of each offence. In short,
jurisprudence may be considered to be the study and systematic arrangement of the general
principles of law.
In yet another sense, jurisprudence may be regarded as the philosophy of law dealing with the
nature and function of law. This approach to jurisprudence is receiving primacy in modern
times keeping in view the rapid social changes taking place all around the world in recent
decades. This has eventually given rise to what is now termed as the 'functional
jurisprudence'. The thrust being on inter-relationship between law and justice.
The Indian jurisprudence owes its origin to the ancient concept of Dharma which was
considered to be best way to discipline one's mind. The practice of Dharma enabled citizens
to inculcate a sense of discipline in conducting themselves in the society. This eventually
brought about peace and prosperity in the society. However, with the march of time and
progress of Indian society, the concept of law and therefore, of jurisprudence has changed
radically. India is now a Sovereign, Socialist, Secular, Democratic Republic.¹ Democracy
pre- supposes government of the people, by the people and for the people, and, therefore,
citizens are expected to be self-restrained and self-disciplined. They should also be conscious
of their rights and duties. 'Law' plays a significant role in sustaining a stable social order.
India being a welfare State, a new Indian jurisprudence needs to be developed so as to ensure
that law becomes an effective instrument of social change in various facets of Indian life. It
has to play the functional role of harmonizing the conflicting interests of individuals in the
society by maintaining an equilibrium between the freedom of individuals on the one hand
and social welfare on the other
Concept of Law
‘Law’ defines the political organization and structure of society, provides a scheme of
individual relationship within it and contributes to the stability of society by offering an
objective mechanism for the resolution of disputes and conflicts within the community. All
extensive human societies possess law in some form or other. ‘Legal system’ is the totality of
the laws of a State or community.
Broadly speaking, ‘Law’ is a notional pattern of conduct to which actions do or ought to
conform. However, there is no simple definition of law. Every person defines law according
to his own perception of it. Further, law being a social science, it grows and develops with the
society. The concept of law depends largely on the social values, accepted norms and
behavioural patterns of a particular society at a given time.
There are many who would like to achieve an object through the instrumentality of law and
therefore they would like to define law in terms of its purpose. Others might define law in
terms of what it does in the form of actual court decisions. Law has been defined from
different approaches like: (i) its basis in reason, religion, or ethics (natural law approach); (ii)
by its source in custom, precedent or legislation; (iii) by its effects on the life of society; (iv)
by the method of its formal expression or authoritative application, and; (v) by the ends that it
seeks to achieve.
Thus, failure to provide an authoritative definition of law can be ascribed to the fact that
practical application of law does not depend on definition of law.
1.2 NATURAL LAW
Natural law’ is also known as: Moral law. Divine law, Law of God, and, Law of reason.
natural law philosophy found an expression in the Roman legal system through ^ v isio n of
Roman law into three distinct divisions - jus civile, jus gentium and jus naturale- Natural law
is basically a priori method (no need of enquiry or observation), different from a posteriori or
empirical method.
Natural law appeals to the reason of man and there is no element of compulsion in jt ft
embodies the principles of morality and natural justice and as such it differs from positive
law and legal justice. It is law in an ideal state and it differs from man-made law. Us
principles are common to all States (jus gentium) and, thus, it differs from 'jus civile', the
civil law or the law of the land.
The naturalists insist that no social norm can be called law unless it satisfies a criterion of
intrinsic worth, which may be either religion or ethics or morals or social good. Otherwise
there will be no difference between the kind of social norms which a tyrant like Hitler may
lay down and the rest. Therefore, satisfaction of a criterion which goes to the quality of law is
inherent in the idea of law (‘Unjust law is no law’).
According to Salmond, “natural or moral law means the principles of natural rights and
wrongs.” Blackstone observed: “The natural law being co-existing with mankind and
emanating from God Himself, is superior to all other laws. It is binding over all the countries
at all times and no man-made law will be valid if it is contrary to the law of nature.”
Natural law theories may be broadly divided into: Ancient theories. Medieval theories,
Renaissance theories, and. Modem theories. Some of the leading naturalists and their
contribution to the natural law philosophy is as follows:
Aristotle: According to Aristotle, law is either universal or special (written); and, ‘perfect law’
is inherent in the nature of man and is immutable, universal and capable of growth. He
defined natural law as ‘reason unaffected by desires.’ It was Aristotle, and not Plato, who
founded natural law on reason.
Locke: According to John Locke, man entered into a social contract by which he yielded to
the sovereign not all his rights but only the power to preserve order and enforce the law of
nature. The individual retained his inalienable right to life, liberty and estate. The moment
sovereign encroached upon the ‘natural rights’, laws lose their validity and the government
may be overthrown.
Locke pleaded for a constitutionally limited government. The 19th century doctrine of laissez
faire was the result of the individual’s freedom in matters relating to economic activities
which found support in Locke’s theory. Unlike Hobbes who supported State authority, Locke
pleaded for the individual liberty. Locke used natural law as an instrument of change but
Hobbes use it to maintain status quo in the society.
Rousseau: Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated
by Hobbes and Locke, but is merely a hypothetical conception. According to him, people
united to preserve their rights of freedom and equality and for that they surrendered their
rights to the community as a whole - ‘General Will’. Thus, while the individual parts with his
natural rights, he gets in return civil liberties. Therefore, he favoured people’s sovereignty.
His theory is considered to be the forerunner of the modern jurisprudential thought and legal
theory.
Kant: Kant propounded his famous theory of “Categorical Imperative” in his classic work -
‘Critique of Pure Reason’. His theory was derived from Rousseau’s theory of General Will,
and embodies two principles: (i) A man is expected to act in such a way that he is guided by
dictates of his own conscience (human right of self-determination), (ii) ‘Autonomy of will’
implying an action emanating from reason. In essence, “an action is right only if it co-exists
with each and every man’s free will according to the universal law.” This he called as the
principle of ‘Innate Right’.
Kant’s philosophy destroyed the foundation of natural law theories towards the end of 18th
century which suffered a death below at the hands of Bentham in the early 19th century
because of his theory of hedonistic individualism. Bentham called natural law a “simple non-
sense.” David Hume destroyed the theoretical basis of natural law by his analytical
positivism. August Compte denounced natural law theory as false, non-scientific and based
on super-natural beliefs.
Natural Law in the 20th Century
The impact of materialism on the society and the changed socio-political conditions
compelled the 20th century legal thinkers to look for some value-oriented ideology which
could prevent general moral degradation of the people. This led to the revival of natural law
theory but in a modified form. The new approach was concerned with the practical problems
of the society and not with abstract ideas.
Dr. Allen pointed out, “The new natural law is value-loaded and is relativistic and not
absolute, changing and varying and not permanent and everlasting in character. It represents a
revolt against the determinism of historical school on the one hand and artificial finality of
the analytical school on the other hand.” The main exponents of the new revived natural law
were: R. Stammler, Prof. Rawls, Kohler and others.
Stammler: R. Stammler defined law as, “Species of will, others-regarding, self-authoritative
and inviolable.” According to him, law of nature means ‘just law’ which harmonizes the
purposes in the society. The purpose of law is not to protect the will of one but to unfiy the
purpose of all. Principle of respect and principle of community participation are the two
fundamental rights of a just law. With a view to distinguishing the ‘new’ natural law from the
old one , he called the former as ‘ new natural law with variable content’.
prof- Fuvvls: ^ aw*s propounded the two basic principles of justice, namely (i) equality
of .jglit to securing generalized wants including basic liberties, opportunities, power and
minimum means of subsistence, and (ii) social and economic inequalities should be arranged
so as to ensure maximum benefit to the community as a whole.
lon Fuller: Fuller is one of the leading supporters of the modem natural law philosophy. jje
wrote ‘The Law in Quest of Itself’ and ‘The Morality of Law’. He distinguished morality as it
is’ (‘morality of duty’) from ‘morality as it ought to be’ (‘morality of aspiration’). He
believed that law is a purposive system, the purpose being to subject human conduct to the
control and guidance of legal rules.
Fuller maintained that law is a product of sustained purpose and efforts which contains its
own implicit morality - “inner morality”. He believes that “Law represents order simpliciter.”
Thus “good order is law that corresponds to demand of justice or morality or men’s notion of
what ought to be.”
Eight conditions which constitutes the “inner morality” of law are: (i) there must be rules, (ii)
the rules must be published, (iii) rules are to be prospective and retroactive legislation must
not be used abusively, (iv) the rules must be understandable/intelligible, (v) the rules must not
be contradictory, (vi) the rules must not require the conduct beyond the power of the affected
parties, (vii) the rules must not be changed so frequently that the subjects cannot guide their
actions by them, and (viii) there should be congruence between the rules as announced and
their actual enforcement.
Evaluation of natural law - Natural law approach, however, is not a realistic and practical
approach. Naturalists bid to introduce ‘moral element’ into the criterion of identification of
laws has the effect of founding law on value judgments. If each individual is permitted to
determine law according to his own conscience, it will invite chaos and disorder in the
society. Bentham regards natural law as only a phrase of the English language, and natural
rights as “nonsense on stilts”. According to him, the “natural law reasoning” resulted from
confusing laws with moral or legal laws.
Indian legal system and its laws are based on the legal positivists’ tradition, and law is seen in
terms of formal criterion of validity. However, recently the courts have started looking
beyond that. For example, in the area of constitutional amendments, they have developed a
concept of “basic structure” to which all constitutional amendments must conform. Right to
life under Article 21 of the Constitution has been very liberally interpreted to include right to
basic amenities, clean environment, privacy, dignity, etc. The courts are insisting upon the
administration to be just, fair and reasonable in their dealings with the citizens.
There are two ideals of a theory of natural law: A universal order governing all me>i, and, the
inalienable rights of the individuals. Natural law principles have inspired ll,e positive law,
Constitutions, and international law (Charter of UN and Universal declaration of Human
Rights). The natural law theory reflects a perpetual quest for absolute justice. It has found
expression in modern legal systems in the form of socioeconomic justice. The natural law
theory acts as a catalyst to social transformation thus saving the society from stagnation. The
concepts of ‘rule of law’ in England and Indja and ‘due process’ in USA are essentially based
on natural law philosophy.
Hart does not denounce the role of natural law in his positivism. Unlike Austin and Kelsen,
Hart contends that it is necessary for law and morality to have certain element of natural law
as a logical necessity. He asserts that law and morality are complementary and supplementary
to each other. In his view, there are four attributes of morality: (i) Importance (ii) Immunity
from deliberate change (iii) Voluntary character of moral offences, and (iV) Forms of moral
pressure, which separate it from etiquette, custom, etc. The rules of sexual behaviour provide
the best example of morality.
According to Cohen, natural law is in fact a way of looking at things and a humanistic
approach of judges and jurists. According to Dias, the greatest attribute of the natural law
theory is its adaptability to meet new challenges of the transient society. According to Lloyd,
natural law has been devised as a mere law of self-preservation or a law restraining people to
certain behaviour. Even the modem sociological jurists and realists have taken recourse to
natural law to support their ideology.

1.3 BRITISH POSITIVISM: BENTHAM AND AUSTIN

The analytical school is ‘positive’ in its approach to the legal problems in the society. It
concentrates on things as they are, not as they ought to be. The main concern of the
positivists is ‘law that is actually found\positum, and not the ideal law. The most important
legal sources are Legislation, Judicial precedents and Customary law. This school, dominant
in England, lays down the essential elements that go to make up the whole fabric of law e.g.
State sovereignty and the administration of justice. The motto of Analytical school is Ubi
civitas ibi lex i.e. where there is State, there will not be anarchy; State is a necessary 6vil. The
main proponents of this school are: Bentham, Holland, Austin, Salmond, etc.
(a) Bentham's Concept of Law
Jeremy Bentham heralded a new era in the history of legal thought in England. He is
considered to be the founder of positivism in the modern sense of the term. It has been rightly
said that Austin owes much to Bentham and on many points his propositions are merely the
'para-phasing of Bentham's theory Bentham's classic works reveal that truly speaking, he
should be considered to be the father of analytical positivism and not John Austin as it is
commonly believed.
Bentham was the son of a wealthy London Attorney. His genius was of rarest quality. He was
a talented person having the capacity and accumen of a jurist and a logician. Dicey, in his
book 'Law and Public Opinion in 19th Century', has sketched Bentham's ideas about
individualism, law and legal reforms which have affected the growth of English law in the
positive direction. The contribution of Jeremy Bentham to the English law reforms can be
summarised thus- "He determined, in the first place, the principles on which reforms should
be based. Secondly, he determined the method ie. the mode of legislation which reforms
should be carried out in England." Bentham's Expositorial and Censorial Jurisprudence:
Bentham preferred to divide jurisprudence into 'expositorial' and censorial jurisprudence.
Expository or analytical jurisprudence is concerned with law it is without any regard to its
moral or immoral character. Censorial jurisprudence, on the other hand, is concerned with
'science of legislation' that is, what the law ought to be.
The function of 'expositorial' jurisprudence to ascertain what the law is while that of censorial
jurisprudence is to ascertain what the law ought to be.
Jeremy Bentham's Views On 'Law' and Legal Positivism
English law as it existed at the end of the 18th century, when Bentham was still in his youth,
had developed almost in a haphazard way as a result of customs or modes of thought which
prevailed at different period. The laws which were then in existence were not enacted with
any definite guiding principles behind them. The law of England, like that of most countries
of contemporary Europe. had grown out of occasion and emergency. It is for this reason that
it is often said that in England law had in fact grown, rather than been made.
Jeremy Bentham defined law "as an assemblage of signs declarative of a volition conceived
or adopted by the Sovereign in a State, concerning the conduct to be observed in a certain
case by a certain person or class of persons, who in the case in question are or are supposed to
be subject to his power; such volition trusting for its accomplishment to the expectation of
certain events which it is intended such declaration should upon occasion be a means of
bringing to pass, and the prospect of which it is intended should act as a motive upon those
whose conduct is in question".
Bentham was a tireless campaigner of reform and insisted that prior to reform there has to be
a thoroughgoing classification of law as it is. He was a champion of codified law and of
English law reform which in his view was in chaos in those days. He advocated that there
could be no reform in substantive law without reforming its structure through a process of
analysis. Therefore, he distinguished expositorial jurisprudence (ie. what the law is) from
censorial jurisprudence (Le. what the law ought to be).2 Which laid greater emphasis on art
of legislation)
Bentham rejected the theory of Natural Law
Like Thomas Hobbes. Bentham also rejected the natural law theory and co-related law with
sovereignty and utility, He was a critic of natural law philosophy and called it nothing but a
phrase and even went to the extent of calling Blackstonian natural rights as a sheer 'non-sense
upon stilts In his view, nature has placed mankind under two sovereign masters, namely, pain
and pleasure which alone decide as to what man should do or not do. This he termed as
hedonic calculus, which later came to be known as his principle of utility According to
Bentham, only those laws could be upheld which promoted four goals of subsistence,
abundance, equality and security.
As stated earlier, Bentham's concept of law is imperative one ie law is an assemblage of
signs, declarations of volition conceived or adopted by Sovereign in a State. He believed that
every law may be considered in the light of eight different aspects, viz.—
 1. Source of law is the will of the sovereign which may consist of laws made by him or
permitting laws made by former sovereign to continue or may adopt laws to be made
in future by subordinate authorities.
2. Subjects who (may be persons or things). They may be active or passive.
3. Objects (act, situation or forbearance). Each law regulates conduct which may be
positive or negative by imposing duties or granting permission depending on act-
situations.
4. Extent, (Law covers a portion of land on which acts have been done).
5. Aspect (may be directive or sanctional). Command is only one of the aspects of the
will of the sovereign carrying with it force of law.
6. Force or sanction which motivates evidence of law. It is for regulation of conduct of
subjects in society.
7. Remedial State appendages in order to stop or prevent the evil. They are addressed to
Judges with a view to curing the evil or preventing future evil.
8. Expression: Where expression of law is complete in unequivocal terms, the Judge
must adopt literal interpretation. It is only where the expression of law is incomplete
that the Judge may resort to liberal interpretation. Bentham was vehemently against
the judge-made law and therefore, he sought to minimise judicial discretion by trying
to ensure that laws were complete, not only in expression but also in design.

This is the reason why customary laws were not regarded as law because they could never be
complete.

Bentham's Utilitarianism:

Bentham as an individualist believed that the function of law is to emancipate individual from
the bondage and restraint upon his freedom. He supported the economic principle of laissez-
faire which meant minimum interference of the State in the economic activities of
individuals. Bentham propounded the principle of utilitarianism. According to this theory, the
right aim of legislation is the carrying out of the principle of utility. In other words, the proper
end of every law is the promotion of the greatest happiness of the 'greatest number Bentham
defined 'utility' as the property or tendency of a thing to prevent some evil or procure some
good' According to him, the consequences of good and evil are respectively 'pleasure' and
'pain'.
Around 1830, Benthamite utilitarianism had become the most popular creed of English
legislative reforms. Bentham proceeded from the axiom that nature has placed mankind under
governance of two sovereign masters i.e. pleasure and pain. They alone point out to us what
we ought to do and what we should refrain from doing. The good or evil of an action should
be measured by the quality of pain and pleasure resulting from it.
The task of government according to Bentham, was to promote happiness of society by
furthering enjoyment of pleasure and affording security against pain. He was convinced that
if individuals comprising society were happy and contented, the whole body politic would
enjoy happiness and prosperity.
Bentham believed that happiness of the social order is to be understood in the objective sense
and it broadly includes satisfaction of certain needs, such as need to be fed, clothed, housed,
etc. According to him, happiness changes its significance in the same way as the meaning of
happiness also undergoes changes with the changes in societal norms.
As state earlier, Bentham desired to ensure happiness of the community by attaining four
major goals, namely, (1) subsistence, (2) abundance, (3) equality, and (4) security for the
citizens. Therefore, the function of law must be to meet these ends i.e. to provide subsistence,
to produce abundance, to favour equality, and to maintain security. Of these four ends of legal
regulation, security was of foremost importance to him as it was related to protection of
honour, property and status of a person. He pointed out that individual liberty, though a
highly important branch of security, must sometimes yield to consideration of general
security. In his opinion, it is not liberty but security and equality which should form the main
objective of legal regulation.
Bentham never questioned the desirability of economic individualism and property. He firmly
believed that people's right to property must be respected for the welfare of the state. Society
should encourage private enterprise so as to promote opportunities for subsistence and
abundance. Bentham rejected natural rights and recognised no limitations on Parliamentary
sovereignty.
John Stuart Mill agreed with Bentham's view regarding utilitarianism which is also called the
doctrine of hedonism or theory of pain and pleasure. He advocated that doctrine of utility in
terms of pain and pleasure was altruistic rather than egoistic since the ideal was "the
happiness of all concerned." Therefore, justice implies an urge to retaliate for a wrong i...
rebel against injury. Thus, for Bentham, pleasure and pain were the ultimate standards on
which a law was to be judged. It is for this reason that consideration of morality had no place
in Bentham's utilitarian approach. Bentham pleaded for codification of laws and he was
opposed to judge-made Taw
Bentham was a profound thinker, an acute social critic and a staunch law- reformist.
Commenting on Bentham's philosophy, Sir Henry Maine, observed,
"Bentham was in truth neither a jurists nor a moralist in the proper sense of the word. He
theorises not on law but on legislation; when carefully examined, he may be seen to be a
legislator even in morals. No doubt, his language seems sometimes to imply that he is
explaining moral phenomena, but in reality he wishes to alter or re-arrange them according
to a working rule gathered from his reflection on legislation".
Bentham's contribution to legal theory and legislation is so great that his period is known as
the 'Benthamite era' in the legal history of England. He introduced legal positivism and
treated legal theory as a science of investigation which should be approached through
scientific method of experimenting and reasoning.
Bentham views on Justice.-
Bentham agreed with Hans Kelson who said, "absolute justice is an irrational ideal, an
illusion-one of the eternal illusions of mankind". He held justice as primarily a quality of
social order regulating mutual relations of men. A social order is just if it is satisfactory to all
men. Therefore, longing for justice is, in fact, longing for happiness in the society. In other
words, justice is nothing but social happiness guaranteed by a social order and protecting
certain interests socially recognized by the majority as worthy of being protected.
Bentham's perception of justice is based on system of values and each society has its own
different set of values, ie., morals. The individuals living in the society have to conform to the
set values or norms and rationalise his conduct or behaviour accordingly. If they do not, there
would be conflict of interest. If there is no conflict of interest, there would be no need for
justice.
Bentham was a progenitor of modern analytical jurisprudence
Bentham was mainly concerned with the law reforms therefore he distinguished censorial or
evaluative jurisprudence from expository or analytical jurisprudence. According to him,
expository jurisprudence was concerned with law as it is, without any concern of law as it
ought to be. That is, he did not think 'morality' as an essential attribute of law. He expounded
the concept of 'positive law' which commanded citizens to obey the law as it is or face legal
sanctions in the event of its disobedience. Thus completely discarding the superiority of
natural law, he advocated the supremacy of the law made by the Sovereign, in the interest of
general good of the people. It is, therefore, often said that it was Bentham and not Austin who
was the progenitor of analytical jurisprudence.

Criticism Against Bentham:

Bentham's theory of utilitarianism has been subjected to criticism on many counts. According
to Friedmann, it suffers mainly from two weaknesses. Firstly, in an affort to blend
materialism with idealism; Bentham underestimates the need for individual discretion and
flexility in the application of law overestimating the power of the legislator, Secondly, his
theory fails to balance individual interests with the interests of the community Another
criticism advanced against Bentham's hedonistic calculus, ie., theory of utilitarianism is that
pleasure and pain alone cannot be the final test of the adequacy of law.
Austinian Concept of Law
Austin is considered to be the father of English Jurisprudence He confined his study only to
the positive law and applied analytical method for this purpose. By positive law, Austin
meant laws properly so called as distinguished from morals and other laws which he
described as 'laws improperly so called' which lack force or sanction of the State. Austin
described positive law as 'the aggregate of rules set by man as politically superior to men as
politically inferior subjects. He attributes (1) command, (2) sanction (3) duty, and (4)
sovereignty as the four essential attributes of positive law.
It was Austin who for the first time treated jurisprudence as a science of law concerned with
analysis of legal concepts-their exposition, examination and comparison in a scientific
manner in order to determine their scope and extent in a given politically organised society.
Austin distinguishes positive law from positive morality which is devoid of any legal
sanction, He identifies law with command, duty and sanction. According to Justice Holmes,
Austin's distinction between positive law and positive morality seeks to exclude the
considerations of goodness or badness in the realm of law. In Austin's positive law there is no
place for ideal or justness in law.
In his own words, "the existence of law is one thing, its merit and demerit another... A law
which actually exists, is a law, though we happen to dislike it or though it may vary from the
text by which we regulate our approbation or disapprobation." The major thrust in Austinian
positive law was therefore, on separation of law from morals. As a corollary of it, he
distinguished science of jurisprudence from ethics. The former is concerned with positive
laws itrespective of their goodness or badness, Commenting on this point Amos observed that
a positive law, as Austin has shown, must be legally binding though it may be unjust. Austin
thus made his system of law logical, coercive and enforceable as distinct from law as it ought
to be. For him, command was 'the key to the science of jurisprudence."
The triology of command, duty and sanction which are implicit in Austin's HLA conception
of law has invoked criticism from many quarters. Professor H.L.A Hart holds that it creates a
situation where law only obligates subjects and threatens them with physical coercion
unmindful of the legitimate moral-cum- social obligations of the sovereign towards his
subjects, thus compelling the Pushy subjects to obey it meekly even if it is most unjust or
unfair. Salmond also criticised Austin's theory of law which completely divests law from
morality and held that law to be effective must have in it elements of ethics, reasonableness
and justice.
Austin's positive law received criticism by Lon Fuller in United States who propagated a
view that the laws passed in derogation of popular will and needs of society would be short-
lived and cannot muster public support. According to him, the purpose of law is to subject
human conduct to the governance of rules. The law, therefore, cannot be devoid of morality
which includes values, ideals, natural law and notice of justice.
Again, the noted German legal philosopher Gustav Radbruch also criticised Austinian
conception of law which, in his opinion, leads to dictatorship as was the case in Germany
during the Nazi rule. He pointed out that during Hilter's dictatorial regime, his words were
law and the subjects had no rights, liberties, freedoms. They were subjected to secret
regulations and statutes in complete defiance of notions of justice and morality. Radbruch
charactersied Nazi rule as a government of complete lawlessness devoid of any morality or
justice. Therefore, he asserts that a purposive law can never be separated from justice and
morality which are pre-conditions of a good law.
Austin's Imperative Theory of Law
Dr. Allen preferred to call Austin's analytical school as Imperative school. He stated that,
Austin defined law as "a rule laid for the guidance of intelligent beings by an intelligent being
having power over him." He divides law into two parts, namely, (1) Laws set by God for
men; and (2) Human Law, that is laws made by men for men. He says that positive morality
is not law properly so called but it is law by analogy. According to Austin, the study and
analysis of positive law alone is the appropriate subject-matter of jurisprudence. To quote
him, "the subject-matter of jurisprudence is positive law-law simply and strictly so called; or
law set by political superior to political inferiors." The chief characteristics of positive law
are command, duty and sanctions, that is, every law is command, imposing a duty, enforced
by sanction. Thus, he strongly believed that law is the sovereign's command carrying with it
threat of evil which is called sanction, and the party commanded and threatened is under an
obligation (or duty) to obey it. Duty and command are co-relative and fear of sanction
(punishment) is the motive for obedience of such command, i.e., law.
Austin, however, accepts that there are three kinds of laws which, though not commands,
may be included within the purview of law by way of exception. They are:-
1. Declaratory or Explanatory laws.-These are not commands because they are already in
existence and are passed only to explain the law which is already in force.
2. Laws of repeal.-Austin does not treat such laws as commands because they are in fact the
revocation of a command.
3. Laws of imperfect obligation.-They are not treated as command because there is no
sanction attached to them. Austin holds that command to become law, must be accompanied
by duty and sanction for its enforcement.
Criticism of Austin's Imperative Theory of Law
Austinian theory of law and analytical positivism has been criticised by jurist like Bryce,
Olivecrona and others. Bryce characterises Austin's work as full of errors which hardly has
any significance in juristic thought. Austin's theory has been criticised on the following
grounds:
1. Customs overlooked.-Austin's view that 'law is the command of sovereign' is not supported
by historical evolution of law when customs played a significant role in regulating human
conduct. Further, customs still continue to be a potent source of law even after the coming
into existence of the State.
2. Permissive character of law ignored.-Austin's theory does not take notice of laws which are
of a permissive character and confer privileges e.g. the Bonus Act, or the law of Wills etc.
3. No place for Judge-made law.-Judge-made law has no place in Austinian conception of law
although the creative function of judiciary as a law-making agency has been accepted in
modern times all over the world.
4. Austin's theory treats International law as mere morality.--Austin does not treat
international law as 'law' because it lacks sanction. Instead, he regards international law as
mere positive morality? This view of Austin is hardly tenable in the present time in view of
the increasing role of international law in achieving world peace.
5. Command over-emphasised.-The Swedish Jurist Olivecrona has denounced Austin's theory
of law because of its over emphasis on 'command' as an inevitable constituent of law. In
modern progressive democracies law is nothing but an expression of the general will of the
people, Therefore, command aspect of law has lost its significance in the present democratic
set-up where people's welfare is the ultimate goal of the state. It is unrealistic to think that
sovereign in modern times is something separate from the community and is capable of
giving arbitrary commands. The fact is that sovereign is an integral part of the community
and in making of laws, he is guided by public opinion.
6. Inter-relationship between Law and Morality completely ignored.- Perhaps the greatest
shortcoming of the Austin's theory is that it completely ignores the relationship between law
and morality. Law can never be completely divorced from ethics or morality which provide
strength to it. The legal concepts such as 'right', 'wrong, duty, obligation etc. themselves
suggest that there is some ethical or moral element present in them. Commenting on inter-
relationship between law and morality, Dr. Jethro Brown observed, "even the most despotic
legislator cannot think of or act without availing himself of the spirit of his race and time."
7. Sanction alone is not the means to induce obedience.-Austin's view that it is sanction alone
which induces a person to obey law, is not correct. There are many other considerations such
as fear, deterrence, sympathy, reason etc. which may induce a person to obey law. The power
of the state is only the last force to secure obedience of law.
8. Indivisibility of sovereignty criticised.-While bringing out distinction between positive law
and positive morality, Austin opined that the former was set by a political superior called the
sovereign. According to him, the sovereign could not be under a duty because his being under
a duty would impliedly mean that there is another sovereign above him. But Jethro Brown
has contended that the sovereign could well be bound by a duty towards his subjects.
The Austinian view regarding indivisibility of sovereignty has also been criticised by some
writers particularly, Bentham who showed here sovereignty could be divided by conferring
concurrent power of law-making between colonial legislature and British Crown during the
colonial rule in India and elsewhere.
Be that as it may, the credit of heralding a new era in the English legal thought goes to
Austin. The shortcomings of his theory paved way for further improvement on the subject.
Despite criticism against Austin's concept of law, Prof Olivecrona has acknowledged him as
the pioneer of the modern positivism. Austinian approach to legal theory has been
commended for its clarity, consistency and simplicity. Dr. Allen remarked "for a systemetic
exposition of the methods of English jurisprudence, we will have to turn to Austin."
Austin's contribution to law has been greatly admired by the contemporary legal thinkers like
Bentham and J. S. Mill. They denounced natural law philosophy and excluded all ethical
notions in his theory of positive law. Sir Henry Maine observed that, 'no conception of law
and society has ever removed such a mass of undoubted delusions. The merit of Austin's
theory of law lies in its simplicity, consistency and clarity of exposition.
Austin's theory was later improved upon by Holland, Salmond and Gray. Denouncing
Austin's view that sovereign is the sole law-giver, Salmond holds that law consists of rules
recognised and acted upon by law-courts. Gray also held a similar view and remarked that
law is what has been laid down as a rule of conduct by the persons acting as judicial organs of
the State. (Holland, in his Elements of Jurisprudence, accepted command as an inseparable
element of law but defined it as 'a general rule of human action enforced by superior
authority on his subjects'. These modifications in the Austinian theory later gave rise to the
emergence of Vinenna School in subsequent years.
1.4 KELSEN’S CONCEPT OF LAW
Kelson's Theory of Pure Science of Law
Kelson did not favour widening the scope of jurisprudence by co-relating it with all social
sciences and rigorously insisted on separation of law from politics, sociology, metaphysics
and all other extra-legal disciplines. It is quite often said that Kelson's pure theory of law tried
to rescue jurisprudence from vague mysticism and thus it was in a way revival of John
Austin's 19th century analytical jurisprudence. Like Austin, Kelson divested moral, ideal or
ethical elements from law and wished to create a 'pure' science of law devoid of all moral and
sociological considerations. But he rejected Austin's definition of law as a command because
it introduces subjective considerations whereas he wanted legal theory to be objective, He
also discarded the notion of justice as an essential element of law because many laws, though
not just, may still continue as law. He defines science as a system of knowledge or a totality
of congnitions' systematically arranged according to logical principles. Kelson's grundnorm is
analogous to Austin's concept of sovereign without which law cannot be obligatory and
binding. Thus Kelson's pure theory of law is a theory of positive law based on normative
order eliminating all extra legal and non-legal elements from it. He believed that a theory of
law should be uniform.
Kelson's theory of pure science of law which is also known as Theory of Interpretation was a
reaction against vicious ideology which was corrupting the legal theory and the jurisprudence
of a totalitarian state. He nomeneclatured his theory as "Pure Science of law" because science
to be called rational, must stand in a two-fold relation to its object, viz., it determines the
conception of the object and establishes its reality. The former is theoretical while latter is
practical. Kelson claimed that his pure theory was applicable to all places and at all times. It
must be free from ethics, politics, sociology, history, etc. though he did not deny the value of
these branches of knowledge. He only wanted that law should be clear of them.
Law As Normative Science
Kelson defined law as the "depsycholised command". He described law as a 'normative
science' as distinguished from natural sciences which are based on cause and effect such as
law of gravitation. The laws of natural science are capable of being accurately described,
determined and discovered in the form of 'is' (das sein) which is an essential characteristic of
all natural sciences. But the science of law is knowledge of what law ought to be (das-sollen).
It is the 'ought' character which provides normative character to law. For instance, if A
commits a theft he ought to be punished. Like Austin, Kelson also considers sanction as an
essential element of law but he prefers to call it 'norm'. Thus according to Kelson, 'law is a
primary norm which stipulates sanction'. It is called positive law because it is concerned only
with actual and not with ideal law. Dr. Allen has described Kelsenite theory of law as 'a
structural analysis, as exact as possible of positive law-an analysis free of all ethical or
political judgments or values'.
According to Kelson 'norm (sanction) is a rule forbidding or prescribing a certain behaviour
For him, legal order is the hierarchy of norms having sanction and jurisprudence is the study
of these norms which comprise legal order. He distinguishes moral norm with legal norm. For
example, moral norm says that one shall not steal' but since it has no punitive consequence, it
lacks coercive force but if it is to be reduced in form of legal norm, it would say, "if a person
steals, he ought to be punished by the competent organ or State". This ought' in the legal
norm refers to the sanction to be applied for violation of law.
The 'Grundnorm'
Kelson's pure theory of law is based on pyramidical structure of hierarchy of norms which
derive their validity from the basic norm which he termed as 'Grundnorm. Thus Grundnorm
or basic norm determines the content and gives validity to other norms derived from it Kelson
has no answer to the question as to wherefrom the Grundnorm or basic norm derives its
validity, He considers it to be a meta-legal question in which jurist need not intrude.
Commenting on this point, Julius Stone rightly comments that just as Austin's sovereign in a
particular society is a mere starting point for his legal theory, so also basic norm has to be
accepted as a hypothetical starting point or fiction which gives a legal system coherence and
a systematic form. Thus while all norms derive their validity from the basic norm
(Grundnorm), the validty of basic norm cannot be objectively tested, instead, it has got to be
presumed or pre- supposed. Kelson, however, considers Grundnorm as a fiction rather than a
hypothesis.
The Supreme Court of Pakistan in State v. Dosso, had also upheld the Kelsenite theory of
effectiveness and validity of revolutionary government which had come into power by
overthrowing the legitimate Government and destroying the previous Constitution. However,
this decision was subsequently over ruled by the Supreme Court (of Pakistan) in Jilani v.
Government of Punjab 2 which rejected the authority of the revolutionary government by
overthrowing the existing regime. The same history repealed again in Pakistan in 2007 when
the Military General Parvesh Musharraf removed the Nawaz Sharif's popular Government in
2007 by military coupe d'etrat and assumed reigns of Pakistan as its President repudiating the
Constitution to suit his own dictatorial military government. He legitimatised in coupe and
declared an state of emergency in October 1999 and suspended the Constitution and closed
the Prime Minister's office and put Nawaz Sharif in Jail. He asked the Judges of the Supreme
Court to take fresh oath of allegiance to his new military government and remained in office
as President from 2001 to 2008.
The present conflict (March-April 2013) between North and South Korea has also put the
grundnorm of the Government of that country in jeopardy. These instances clearly shows that
Kelsenian grundnorm during the revolutionary change has to be determined by the political
and extra- legal expediency in the context of the prevailing situation and changed conditions.
Kelson recognised that the Grundnorm need not be same in every legal order (State), but it
must be necessarily there. It may be in the form of a written Constitution or the will of the
dictator.
Pyramid of Norms
Kelson considers legal science as a pyramid of norms with Grundnorm (basic norm) at the
apex. The subordinate norms are controlled by norms superior to them in hierarchical order.
The basic norm which is otherwise called Grundnorm is however, independent of any other
norm being at the apex. The process of one norm deriving its power from the norm
immediately superior to it, until it reaches the Grundnorm has been termed by Kelson as
'concretisation' of the legal system. Thus the system of norms proceeds from downwards to
upwards and finally closes at the Grundnorm at the top. The Grundnorm is taken for granted
as a norm creating organ and the creation of it cannot be demonstrated scientifically nor is it
required to be validated by any other norm. For example, a statue or law is valid because it
derives its legal authority from the legislative body, the legislative body in its own turn
derives its authority from a norm i.e. the Constitution. As to the question from where does the
Constitution derives its validity there is no answer and, therefore, it is the Grundnorm
according to Kelsonite conception of pure theory of law. In his view the basic norm is the
result of social, economic, political and other conditions and it is supposed to be valid by
itself.
The legal order as conceived by Kelson receives its unity from the fact that all manifold
norms of which the legal system is composed can be traced back to a final source. This final
source is the basic norm or the Grundnorm which he defined as "the postulated ultimate rule
according to which the norms of this order are established and annulled, receive or lose their
validity".
Kelson characterised law as a technique of social organisation. It is not an end but is a
specified means, as an apparatus of compulsion to which there adheres no political or ethical
value. According to him, "law is not an eternal sacred order, but a compromise of battling
social forces" and, therefore, "the concept of law has no moral connotations whatsoever."
As a necessary consequence of the extra-jural origin of the Grundnorm, it loses its
applicability when a new Government comes into power overthrowing the existing
Government by revolution. In that event the courts are confronted with the problem whether
to continue applying the 'laws' of the overthrown regime even though they are no longer
effective or to apply the laws introduced by the new revolutionary government which are
lacking legitimacy. There is no unanimity of judicial opinion in this regard. It must, however,
be stated that this being a matter beyond the purview of jurisprudence, has to be decided
according to political exigencies of the situation and general acceptance by the people.
Salient Features of Kelson's Theory of Pure Science of Law
The pure theory of Law as propounded by Kelson is founded on certain basic assumptions
which may be summarised as follows:-
1. The theory is aimed at reducing chaos and confusion created by the supporters of natural
law philosophy.
2. Pure theory of law deals with the knowledge of what law is, and it is not concerned about
what law ought to be.
3. The theory considers law as a normative science and not a natural science.
4. Kelson's pure theory of law is a theory of norms not so much concerned with the
effectiveness of the legal norm.
5. It is formal theory confined to a particular system of positive law as actually in operation.
Implications of Kelson's Theory Pure Science of Law
Kelson's pure theory of law covers a wide spectrum of legal concepts such as State,
sovereignty, private and public law, legal personality, rights and duty etc. According to
Kelson law and State are not different but they are in fact one and the same. Likewise, there
is no difference between public and private law. Kelson also denies any legal difference
between natural and juristic personality. For him, all legal personality is artificial and derives
its validity from grundnorm. He does not believe in the existence of individual rights and
asserts that "legal duties" are the essence of law. In his view legal right is merely the duty as
viewed by the person entitled to require its fulfilment.
Criticism of Kelson's Theory
Undoubtedly, the credit of evolving a normative theory of law goes to Hens Kelson. It seeks
to divest law from natural law doctrines and from the element of justice which was a
predominant characteristic feature of the laws introduced by fascist States and totalitarian
governments. However, Kelson's pure theory of law suffers from certain glaring defects.
Firstly, it excludes all references of social facts and felt needs of the society, Thus his pure
theory of law is without any sociological foundation.
Secondly, Kelson's assertion that all the norms excepting the basic norm (Grundnorm) are
pure, has no logical basis. One really fails to understand as to how subsequent norms which
derive their authority from the Grundnorm can be pure when the grundnorm itself is based on
a hypothesis that it is an outcome of the combination of various social and political factors
and circumstances in a given situation. Commenting on this point, Julius Stone has
sarcastically remarked, "we are invited to forget the illegitimacy of the ancestor in admiration
of the pure blood of the progeny".
Thirdly, the theory is found to be based on hypothetical considerations without any
practicability. It is not possible to divest law from the influence of political ideology and
social needs. He does not consider justice and morality as essential attributes of law.
Fourthly, as stated by Friedmann, Kelson's theory provides no solution for the conflicts
arising out of ideological differences. His theory rejects the element of justice as a mere
emotion which is indeed not true. Law cannot be completely divorced from ethics and
morality which gives it a honourable place in the society.
Wolfgang has also criticised Kelson's theory as it totally fails to provide a practical solution
or guidance for resolving legal conflicts between alternative ideologies. One really wonders
as to how law can be completely divorced from ethics or morality and socially accepted
values.
Fifthly, Kelson's account of legal dynamics is inadequate. It ignores the purpose of law. For
example, while considering the validity or otherwise, of a particular enactment, the courts do
take into account the prevailing custom or the motives of the legislature and try to co-relate it
with the social purpose which the Act seeks to achieve. They take into consideration the
competing interests which may not necessarily be purely legal.
Sixthly, Kelson's pure theory of law also suffers from methodological short-comings. He
ignores the fact that the action of the authority enforcing law to be valid, has to be in
accordance with the procedure and therefore, it becomes necessary to probe into the content
of law. Mere use of force would not validate a law. Kelson's normative system being one-
sided remains indifferent to the content of norms.
(Seventhly, Kelson maintained that Grundnorm imparts validity as long as the "total legal
order" remains effective. But this does not hold good when judiciary of a State refuses to
accept the legality of a usurper who assumed power by force and is deposed sooner or latter
because of his legal order cannot be said to be effective. Thus, in Jilani v. Government of
Punjab, the Supreme Court of Pakistan declared the usurpers of State power as illegal as they
were unlawful ab initio notwithstanding effectiveness. This decision amply illustrates that
Kelson drew no distinction between effectiveness of legal order which the subjects are
compelled to obey due to fear and force of the usurper of State power and effectiveness of a
democratically accepted ruler whose legal order they willingly obey. Thus, it would be seen
that Kelson's theory does not apply to revolutionary situations where someone assumes
dictatorial power by usurpation.
Professor Laski also criticized the Kelson's theory of pure science of law as impracticable as
it is not desirable to free law from politics and ideology. He observed that Kelson's theory is
wholly formal which attempts to create an algebra of law. His theory is in fact an over-
reaction to the modern theories of jurisprudence.
Despite these shortcomings, Kelson's contribution to legal theory cannot be ignored. His
main contribution lies in that, he attempted to break away with the traditional natural law
theory on the one hand and legal positivism on the other. He asserted that legal knowledge is
free from foreign elements, such as ethics, psychology, sociology, etc. His normative theory
separates law from morality on the one hand and law and 'fact' on the other. Kelson refused to
separate law from the State and held that law is the 'will of the State.
Kelsen’s pure theory of law owes to Austin’s theory. However, the two differ in many
respects:
(i) For Austin law is a command of the sovereign. For Kelsen, law is not the
command of a personal sovereign but a hypothetical judgement, which visits with
a sanction for the non-observance of the conduct prescribed. Kelsen denies also
the existence of State as an entity distinct from law.
(ii) In the Austinian sense, a sanction has a moral or psychological basis; the
motivation by fear makes people to submit to law. Kelsen rejected the idea of
command, because it introduces a psychological element into a theory of law
which should, in his view, be ’pure’. In the Kelsenian sense, coercive act means
forcible deprivation of liberty. There is no idea of fear involved, because the
norms prescribe.
(iii) Although sanction is an essential element of his law, validity of a rule has nothing
to do with its sanction. In tile Austinian sense, the sanction was something outside
a law imparting validity to it. While, according to Kelsen, a sanction is in-built in
every legal norm.
(iv) Austin’s theory denies to ’custom’ the character of law as it has not been created
by the sovereign. Kelsen, however, is able to accommodate custom within his
concept of law viz. popular practice may generate legal norms.
(v) Austin didn’t regarded international law as a positive law. Kelsen, on the other
hand, accepted the primacy of international law over national law.

Analytical Positivism-Indian Perspective

Analytical positivism of Austin, Kant and Hart which dominated the English legal system for
more than a century was mainly founded on three basic assumptions, namely, (1) Sovereign
or Grundnorm as the law creating authority, (2) emphasis on law 'as it is' and exclusion of
morality; and (3) insistence on sanction which was a coercive force behind enforcement of
laws. Thus analytical positivism presupposes that sovereign or the law-maker is over and
above law and the law is solely based on coercion or force and it has nothing to do with the
concepts of morality, justice or ethics.
The analytical positivism of the English legal system when examined in the light of the
ancient Indian jurisprudence would bring to fore certain. interesting contradiction. In the
Austinian positivism, sovereign being the law- maker, is considered superior to law. On the
contrary, in ancient Indian legal system, law is given the highest place by which the subjects
as well as the ruler were equally bound. Thus the law namely, dharma occupied a prime place
in the Indian legal system and the King or the ruler was to rule according to Dharma. The
dharma consisted in observance of truth, non-violence and rightful code of moral conduct
which holds or sustains men together in harmony and establishes social solidarity. Dharma
consisted of achara (rules of daily routine); vyavahara (rule or decrees or commands of the
King) and prayaschitta (penance). The rules or commands of the King (Vyavahara) were
contained in Vedas, Smritis which described traditions or customs as revealed and recollected
by the Sages (Rishis). They emphasized on sadachar, i.e., conduct of a virtuous man.
Thus it would be seen that law, morality and religion were co-existing concepts unlike
analytical positivism of Austin which completely divested the notions of morality and justice
from law. The King was ordained to enforce law according to Shastras. The element of
"Sanction found expression in the ancient
Indian legal system by way of danda which meant 'punishment'. According to great ancient
law-giver Manu, it is the fear of danda which makes people to follow dharma, But the king
was not free to exercise his prerogative power of punishment arbitrarity in the Austinian
sense. There is reference in the Shantiparea that a king who does not follow the path of
dharma may be punished. He was to take an oath at the time of his coronation as a king that
he would protect the dharma as ordained by Vedas, Upanishadas and Smritis and shall
fearlessly carry out the laws in accordance with dandaniti (penal policy) and never act
capriciously. In short, the king was described as the upholder of dharma. Sovereignty in
ancient India, was diffused in the community as a whole. Thus dharma was the real sovereign
and not the king. The sovereignty of Dharma i.e., law and not that of the King has been
explained in Satapatha Brahmana which contained a passage saying:
"Since law is the King of Kings, far more powerful and rigid that nothing can be mightier
than the law by whose aid.........even the weak may prevail over the strong." The role of a
King was to enforce the law. He could, however, legislate in emergent situations within the
framework of scriptures which imposed duty upon him and formed a part of King's Dharma
(Rajdharma).
Kelsonite theory of Grundnorm, fits into the legal philosophy of Ancient India in sofaras the
Indian jurists also subordinated the authority of the King to Dharma which was above the
King's sovereignty. The scriptures enjoined upon the King, a duty to rule and administer
justice in accordance with the Dharma, which was akin to Grundnorm as it did not derive its
validity from the King.
With Moghul invasions of the medieval period, the ancient Indian legal system fell into
oblivion and was gradually substituted by the Muslim law of Shariah as laid down by Holy
Quran. Though Muslim rulers were bound by Quranic injunctions, in actual practice, many of
them like Allauddin Khilji were most despotic and autocratic and were not bothered about
their religious law. Allauddin Khilji arrogantly asserted, "Law is what I say and not what
Quran says". Certain laws were highly discriminatory and were differently applied for
Muslims and Hindus. By and large, there was hardly any juristic contribution of the Muslim
rulers to the development of Indian legal theory excepting that it de-stablised the ancient legal
system and thus hampered the cause of justice in India.
The advent of British rule in India brought about radical changes in the then existing legal
system. The improvised system was based on British imperialism which sought to impose
English laws and political institutions in India, Macaulay, the Law Member of the Governor
General-in-Council, rejected the ancient Indian legal and political institutions as 'dotages of
Brahminical superstition' and condemned them as 'an apparatus of cruel absurdities'.
Henry Maine, the author of Ancient Law, criticised ancient Indian Jurisprudence as an
idealistic imagination Macaulay gradually introduced the notions of British juristic concepts
through equity, justice and good conscience and brought about codification of laws. These
codified British laws were akin to Austinian concept of positive law having the element of
certainty, definiteness, effective enforcement and sanction. The British King in Parliament
was the supreme sovereign authority to make laws for the governance of India and they were
above law enacted for India. The Indian legislature had no authority to change law. The
subjects were bound to obey these laws. Thus all the characteristics of positive law, namely,
command, duty, sanction, sovereign etc. were present in the legal system introduced by
British rulers in India. It is in this sense that the analytical positivism found its place in the
Indian legal system during the British colonial rule.
The post-independence era in India necessitated a fresh approach to the existing laws which
were hardly suited to the changed socio-economic and political conditions of the country. To
make a beginning in this direction, the Constitution of India was drafted which came into
force on 26th January, 1950. It can be termed as Grundnorm in the Kelsonite sense because
all the statutes and legislative enactments derive their validity from the Constitution of India
whose validity lies in its whole hearted acceptance by the Indian community without any
exception. In fact it is pre-supposed to be valid.
It must, be stated that the positivism in post-independence Indian law differs from Austinian
conception of analytical positivism in the sense that the former seeks to establish harmonious
relationship between 'is' and 'ought', that is, it does not ignore the element of justice or
morality from the law, while there is no place for these elements (ie., morality and justice) in
the latter. The approach of harmonious construction adopted by the Supreme Court in
deciding the cases involving conflict between fundamental rights and directive principles
provide best illustration of fusion of law with justice and morality,3 However, Supreme Court
adopted a rigid positivistic approach in deciding the case of Tilkayat Shri Govindlaji
Maharaja v. State of Rajasthan, wherein it ruled that the firman of a ruler is law by which
subjects were bound legally without any exception. This view is analogous to the Austin's
supremacy of sovereign as law-maker. Similar positivistic stand was taken by the Apex Court
in Re Kerala Education Bill case wherein it declined to look beyond the letter of fundamental
rights and did not think it necessary to take into consideration the sociological imperatives
which impelled the legislature to pass such law. The glimpses of positivism in the Indian law
are also discernible in the draconian enactments of the Parliament to meet the external and
internal dangers to public peace, and integrity and security of India. The security measures
such as Prevention Detention Act, 1950, MISA, TADA¹ and now POTA etc. are examples
which confer extensive powers to the executive to impose restriction on individual's freedom
are some of the illustrations of the State despoticism of the Austinian pattern which upheld
the omnipotence of the sovereign. The Supreme Court adopted a wholly positivistic approach
in the historic Habeas Corpus case2 wherein it was held that fundamental rights: remain
suspended during the Proclamation of Emergency and, therefore, the court cannot go into the
vires of mala fides of the detention order and the writ of habeas carpus is not maintainable so
long as the right to life and personal liberty envisaged by Art. 21 itself remains suspended. In
this case the Supreme Court upheld the arbitrary powers of the State during Emergency in
utter disregard of imperatives of social justice incorporated in the Preamble and chapters on
fundamental rights and the directive principles of state policy enshrined in Parts III and IV of
the Constitution of India. The Court justified the unbriddled power of the executive
disregarding notions of justice, fairplay and morality which was contrary to the spirit of the
Welfare State. The attitude of the Court has, however, changed over the years and now there
is tendency on the part of the judiciary to restrain and restrict the executive from usurping
power and exceeding its permissible limits.3 The influence of Austinian positivism which
was infused in the Indian legal system by the British colonial rulers is now receding gradually
and the law is being looked as an effective instrument of social change for the welfare of the
society. Far from being treated as a command of the sovereign, law has to play a functional
role in the present time to serve the suffering Indian masses. The developing trends in public
interest litigation and judicial activism have further demonstrated the futility of the
positivistic approach to juristic thought in the present context, not only in India but in all
other progressive democratic countries of the world. The realist approach to jurisprudence
emphasising functional aspect of law seems to be more relevant and meaningful in view of
the changed socio-political conditions of India where legal system is to serve the needs of the
people rather than being treated as their commanding master.
Thus, with the adoption of the Constitution in 1950, India became a democratic, secular and
socialist nation wedded to a new legal philosophy embodying within it the humanistic
principles of freedom, liberty, equality and social justice. The positivist approach adopted in
A.K. Gopalan v. State of Madras by the Supreme Court relying on the rigid principle of
'procedure established by law which rejected the view that the word 'law' used in Art. 21
could be interpreted to include within it the principles of natural justice, was found
incompatible with the developing trend of social justice and was, therefore, finally departed
in the historic case of Maneka Gandhi v. Union of India, wherein it was held that procedure
prescribed by law has to be just, fair and reasonable and not oppressive or arbitrary. In other
words, the Court ruled that the American concept of 'due process' i.e. reasonableness and
fairness was implicit in the expression procedure established by law'. This view further found
support in Unni Krishnan v. State of A. P.3 and also in Consumer Education & Research
Centre v. Union of India and the trend today is to interpret the right relating to life and liberty
embodied in Art. 21 in a manner so as to fulfil the cherished goal of social justice and social
change. It may, therefore, be safely concluded that the positivistic approach which was a relic
of colonical jurisprudence hardly has any place in the modern Indian setting.
 MODULE 2
2.1 HART’S CRITICISM OF AUSTIN
John Austin, an English Philosopher Propounded the command theory. According to Austin’s
Command theory, every Legal system has a human sovereign who himself is above the law,
and Issues command in the form of acting or to refrain from acting particular actions to his
subjects. If the subjects disobey the commands, then the Sovereign threatens them with
sanctions.
Critique of the command theory by Hart
HLA Hart, another English positivist, criticized the command theory on three aspects
1. Legal rules remain in force even after sovereign dies or resigns, so their validity
cannot depend on sovereign’s command.
2. Not all laws require the subject from acting or to refrain from acting. There are some
power conferring laws, such as the power to make contracts.
3. Hart says people obey the law, not due to the threat of sanctions, but rational persons
will have the ability to follow the law just because it is law without the need for the
threat of sanctions.
However, Austin and Hart agree on two basic theses
1. Social Fact thesis- what constitutes the law in a particular society is ultimately a
matter of social facts-facts about the mental states and behaviour of certain
Individuals.
2. Separability thesis-there is no necessary connection between law and morality.

2.2 HART’S CONCEPT OF SOCIAL RULES

Rules’ should not be viewed in the Austinian sense as ‘commands’. Hart uses the term in a
very specific sense.
Essence of social habits - Social habits may be exemplified by the phenomenon of members
of a group of friends who visit the theatre every Friday evening. This is an aspect of the
group’s ‘habitual conduct’, and failure by a member to participate in one of the visits will not
be considered as a ‘fault’ which ought to attract criticism.
Essence of social rules- Social rules are of much greater significance in an analysis of what is
meant by ‘law’. When a social rule is broken, criticism will almost invariably result, because
a fault has been committed. Existence of social rules testifies to their acceptance by a social
group as a whole. Awareness of a social rule (eg, as in matters of morality, etiquette, or of
obligation) and support for its significance and acceptance within the group, constitute what
Hart terms ‘the internal aspects’ of the rule
External and internal aspects of rules-
The ‘external aspects’ of a rule refer to the possibility that an observer standing outside the
particular social group could be aware of the existence of the rule. Social habits possess only
an external aspect. Social rules possess both external and internal aspects.
The ‘internal aspects’ of rules are of much importance: they involve ‘a critical, reflective
attitude to certain patterns of behaviour and a common standard’. This attitude should be
reflected in criticism and self-criticism, demands for conformity with standards, and general
acknowledgement that such criticism and demands are justified.
The classification of social rules- Social rules may be considered within the following
categories. Mere social conventions, as exemplified by the rules accepted as describing
appropriate behaviour in, say, a place of public worship. Rules constituting obligations are
considered essential if the character and quality of a community’s life are to be maintained.
An example is the set of general rules forbidding theft. The rules relating to obligations are
what we understand by ‘law’.
Legal rules- Hart differentiates two types of legal rule: primary rules of obligation, which
generally concern requirements to perform, or abstain from, specified types of activity; and
secondary rules, which affect the operations of the primary rules. It is the union of primary
and secondary rules which constitutes ‘the law’.
The primary rules
Primary rules of obligation which, in a sense, indicate what must or must not be done in
pursuance of an obligation, may be discerned in the operation of the criminal law, in
particular. Thus, the Road Traffic Acts of 1988 and 1991 impose a variety of obligations upon
those who drive motor vehicles. The Sexual Offences (Amendment) Act 1992 imposes
obligations with respect to anonymity in connection with allegations of, and criminal
proceedings relating to, certain sexual offences.
Primary rules alone will not suffice- Hart argues that if a society is to operate solely on the
basis of primary rules, certain conditions arising from human nature and the very world in
which we live would have to be satisfied.
The secondary rules
The defects of the primary rules-only system may be remedied, according to Hart, by the
introduction of a system of secondary rules which will act as a supplement to the primary
rules. These secondary rules are ‘parasitic’ on the primary rules and will allow members of
the community, by performing actions or saying things, to introduce new types of primary
rules, modify old rules and control the operations and effects of the primary rules. Hart
suggests that introducing remedies for each of the defects of the primary rules-only system
would constitute ‘a step from the pre-legal order into the legal world’. Together, the remedies
would suffice to transform a system utilising only primary rules into a full legal system.
Although the remedies differ from one another, and from the primary rules, they each concern
those rules and specify ways in which the primary rules might be ascertained correctly,
varied, and the fact of their breach determined authoritatively.
The rule of recognition
This secondary rule is designed to remedy the defect of uncertainty. It specifies particular
features, the presence of which will affirm conclusively that the rule in question ‘is a rule of
the group to be supported by the social pressure it exerts’. The rule may take a variety of
forms—a document, for example.
The rules of change
These secondary rules will remedy the defect of static rules. Rules of this nature may be
exemplified by enactments empowering particular individuals to make changes in their legal
positions by abolishing old rules and introducing new primary rules. The rules of change may
be simple or complex and the powers they confer may be unrestricted or limited.
Additionally, they may specify procedures and individuals who are empowered to legislate.
Examples of the secondary rules of change are to be found in the law of succession, the
making of contracts and the transfer of property: • The Wills Act 1837 empowers an
individual to make changes in his legal position so that his property rights will not be affected
by the general rules relating to the disposition of the property of an intestate.
The rules of adjudication
These particular secondary rules remedy the defect arising from the diffuse social pressures
by which the primary rules are maintained; they empower selected individuals to pass
authoritative judgment where rules are broken. Rules stating who is to decide a dispute (see,
for example, the Courts and Legal Services Act 1990) and the procedures to be followed (see,
for example, the County Courts Act 1984) may be considered as secondary rules of
adjudication. Rules of adjudication may prohibit individuals from adopting practices of self-
help in the punishment of others. Imprisonment, the collection of fines and damages, and
other sanctions of a legal system will be centralised.
2.3 HART’S CONCEPT OF LAW
Hart's Conception of Law According to Hart, law is a system of two types of rules the union
of which provides key to the science of jurisprudence. These rules, he called as 'primary' and
secondary rules. Rejecting Austin's view that law is a command, H.L.A. Hart emphasised that
primary rules are duty-imposing while secondary rules confer power and the union of the two
is the essence of law. The primary rules which impose duty upon individuals are binding
because of the popular acceptance such as rules of kinship, family sentiments etc. These
being unofficial rules, they suffer from three major defects, namely, (1) uncertainty. (2) static
character; and (3) inefficiency. Besides, there is no agency for deciding about these rules.
The secondary rules which are power conferring, enable the legislators to modify their
policies according to the needs of the society. In fact they seek to remedy the defects of the
primary rules and it is out of the union of these two types of rules that law takes its birth.
Bringing out the distinction between primary and secondary rules, Eric Colvin, observed that
under the primary rules, individuals are required to do or abstain from doing certain acts,
whether they wish to do so or not. The secondary rules are in a sense dependent on primary
rules themselves, for they provide that human beings may by doing or saying certain things,
introduce new rules of primary type, extinguish or determine their incidence or control their
operations. Thus the primary rules which impose duties are concerned with actions involving
physical movement or changes whereas the secondary rules which confer public or private
powers provide for operations which lead to creation or variation of duties or obligation.
Rule of Recognition
Professor Hart's positivism explains the existence of law with reference to the rule of
recognition binding force of which depends upon its acceptance. The validity of law is to be
tested on the basis of rule of recognition which is similar to Austin's conception of sovereign
Hart, however, insists that the rule of recognition is not an extra-jural hypothesis like Kelson's
'basic Grundnorm'. According to him, rule of recognition is the sole rule in a legal system
whose binding force depends upon its acceptance. For example, whatever is enacted by
British Queen in Parliament is rule of recognition. Again, the various constitutional laws
which constitute rule of recognition are rules of positive law which are binding on citizens,
officials, legislatures, Courts and various other governmental agencies
Thus, it could be seen that H. L. A. Hart's conception of positivism centered round the
following considerations-
(1) He accepted law as a command as advocated by Bentham and disciple Austin; his
(2) He believed that analysis of legal conceptions are worth pursuing as distinguished from
mere sociological and historical inquiries.
(3) the judicial decisions were to be deduced from pre-determined rules without recourse to
social aims, objectives, policy or morality
(4) Moral judgments cannot be defended by rational argument, evidence proof; and or
(5) The law as it is actually laid town (positum) has to be kept separate from law as it ought
to be.

Hart's Views on Law and Morality

H.L.A. Hart does not denounce the role of natural law in his positivism. Unlike Austin and
Kelson, Hart contends that it is necessary for law and morality to have certain element of
natural law as a logical necessity. Thus morality is implict in Hart's positive law which he
describes as union of primacy and secondary rules. As a member of society, individuals feel
morally. bound to abide by these rules both as a matter of duty and obligation. Hart, therefore,
asserts that law and morality are complementary and supplementary to each other. In his
view, there are four attributes of morality, namely, (1) importance, (2) immunity from
deliberate change, (3) voluntary character of moral offences; and (4) forms of moral pressure
which separate it from etiquette, custom and other social rules. The rules of sexual behaviour
provide the best example of morality.
Criticising Devlin's view that law demands certain standards of behaviour or moral principles
which society should observe and the breach of which should be made punishable as an
offence, Hart observed that a balance has to be drawn between the freedom of individuals to
have intellectual and artistic freedom and the duty of the law to protect society from
depravity and corruption. He accepted that morality is a necessary condition of society and
the law has a function to ensure that morality of society does not disintegrate. But he further
added that "law's function is only the last line of defence; other attempts to preserve the
accepted morality should come from within the society itself e.g., through education, the
mass media, etc. Hart firmly believed that some shared morality is essential to the existence
of any society.
H.L.A. Hart's concept of law has been vehemently criticised by some jurist notably, Ronald
Dworkin and Lon. L. Fuller. Dworkin denounces Hart's view of law as a union of primary
and secondary rules and exclusion of morality from law. He drew a distinction between 'rules'
and 'principles' and pointed out that a legal system cannot be conceived merely as an
aggregate of rules but it has to be based on certain solid principles and policies. These
principles are broad formulations of generalisation whereas rules are detailed precepts having
a distinct and definite effect, they are more specific than principles. Dworkin further
observed, "a principle is standard that is to be observed because it is a requirement of justice
or fairness or some other dimension of morality." For example, no one can take advantage of
his own wrong is a well established principle of law.
Rules, on the other hand, are applicable in an 'all-or-nothing fashion' and their distinguishing
feature is reason. Dworkin points out that judges have the discretion of creating new legal
rules when the existing law is silent on a particular point or does not provide necessary
guidance in a particular case- situation.
A rather different view has been expressed by Professor Joseph Raz in his book on Morality
of Freedom' where he has argued that "people are autonomous moral actors, and autonomy is
given expression primarily through making one's own decisions. Such freedom is valuable
because it advances social ends". Raz, therefore, points out that "the identification of basic
liberties depend on part, on governmental notion of public good". Thus Raz's thesis does not
make the Morality of Freedom depend on people striving for perfection, for individuals may
not always, or ever, think about moral consequences of their decisions, or may consciously
make decisions which do not make for self improvement. Instead, it looks only for a social
commitment to the idea of the moral significance of individual choice. Raz seeks to connect
the idea of the individual to that of society by recognizing that individual freedom of choice
is contingent on social structure.
Lon Fuller has also criticised Hart's theory which holds that there is no law other than the
rules of recognition. He believes that legal system being an instrument to regulate human
conduct, must concern itself with both law as "it is" and "as it ought to be". This, in other
words means that law cannot be completely divorced from the concept of morality. Fuller
maintained that law is a product of sustained purpose and efforts which contains its own
implicit morality He says laws may be of little service and may cause both injustice and
misery if they do not conform to the "internal morality". According to Fuller, eight conditions
which constitute the internal morality of law are
(i) there must be rules,
(ii) the rules must be published.
(iii) retractive legislation must not be used abusively,
(iv) the rules must be understandable,
(v) the rules must not be contradictory,
(vi) the rules must not require the conduct beyond the power of the affected parties,
(vii) the rules must not be changed so frequently that the subjects cannot guide their actions
by them, (viii) there should be congruence between the rules as announced and their actual
enforcement.
As a modern naturalist, Lon Full believed that "law represents order simplicitier". Thus "good
order is law that corresponds to demand of justice or morality or men's notion of what ought
to be". Therefore, both 'is' and 'ought' Distinction between Positive law & Morality seem to
be inseparable or indissolubly fused.
It must be stated that positive law differs from natural law or morality.
The former consists of rules for governance of the outward acts of the mankind while the
latter consists of principles of natural rights or wrongs or principles of justice based on reason
in the widest sense.
The natural law or morality is unwritten law which are being meticulously followed by
mankind as eternal laws being of divine origin and immutable. Positive law, on the other
hand, is made and enforced by the State.
The essence of difference between positivism (positive law) and natural or normative law lies
in that the former is based on factual notion of law as it is while the latter sought to study law
from philosophical, abstract and ideal angle with reference to morality, reason and
conscience, all of which are beyond the human power, control and authority It is with
reference to these norms that the law explains what is good and what is evil and brings out
distinction between right and wrong. Thus, positivist approach rejects a prorari test and
claims be more realistic and scientific in interpreting and applying law in a given society.
There is no place for hypothetical assumptions based on moral considerations in positivist's
approach.
Taylor in his treatise 'The Conception of Morality in Jurisprudence' has stated that morality
emanates from natural law whereas law emerges from absolute obligation, morality exists in
abstract form whereas law exists in concrete form, though both have a separate existence but
they are components of a single phenomenon. Morals are modified and adjusted with changes
in society, whereas law, which is characterised as an inert normativity, needs outside force of
the state to be set in motion. When individual moralities begin to clash due to changing
norms of the society, it calls for enactment of a law to lay down common standards of
behaviour. Therefore, genetically morality and law are complementary.
Expressing similar views, Salmond observed that law made by legislative devices may be
altered by amendment but moral rules cannot be so changed by legislation. Moreover, legal
rules are amenable to adjudication whereas moral rules are not. Yet another distinction
between law and morality is that law is meant to regular external relations between
individuals whereas morality regulates the inner life ie, conscience of man, it is not external.
Friedmann also observed that there cannot be and there never has been-a complete separation
of law and morality. According to him, there is a distinct interaction between law and
morality but this by itself does not permit a law to be rejected on the ground of its morality.2
Morality being the very foundation of every civilized society, cannot be completely divorced
from law. Law as an instrument of justice must imbibe morality to a certain extent in order to
ensure that social fibre of the society does not degenerate.
Reconciling the is/ought controversy and positivist's obsession with "law as it is", R. W. M.
Dias observed that those who assert law as it is, and not as it ought to be, do not deny the
value of the latter, that is moral aspect of law, but only contend that the two should be kept
apart. Positivism flourished in the Benthamite and Austinian period in Britain when social
conditions had become stable and the necessity of projecting a rigid separation between 'what
law is' and what 'law ought to be occasioned only when social conditions were in turmoil.
Thus positivism represents the intellectual reaction against naturalism and need for respect
for law to maintain order in society
2.4 DWORKIN’S CRITICISM OF POSITIVISM
Dworkin’s interaction with legal positivism
As suggested earlier, there’s no articulate conception of Legal Positivism that makes it easy to
evaluate from different perspectives, hence, Dworkin had to inevitably identify some
fundamental grounds of Legal positivism to critique it satisfactorily. In this process, he chose
Hart’s conception of ‘Legal Positivism’ as his target. This is not only because he was
concerned with the defects in Hart’s theory, but also because, according to him, Hart’s theory
presented the most sophisticated view on Legal positivism. Hence, it becomes imperative for
us to understand Hart’s conception of Legal positivism first.
Hart’s conception of Legal positivism, essentially traces itself, in the form of criticism to
Austin’s classical version of Legal Positivism. Austin’s theory of law identifies various rules
that govern human conduct. He recognizes that some laws are set for humans by God, which
are not morally acceptable but binding for humans, this is ‘divine law’. Other laws are made
by humans for each other, these are called ‘positive laws.’
All other standards, etiquettes, custom, or international traditions, as a source of law are not
proper laws according to him. He maintains that ‘a law’ is a command traceable to a
sovereign and is backed by retribution in case of non-compliance. In this sense, most of the
standards, etiquettes, etc. which he calls ‘positive morality’ are not ‘laws’ since, firstly, they
are informally recognized without any authority, and secondly, their violation does not
necessarily attract punishment.
Hart emphatically rejects this notion of law, but he does not discard positivism for his
understanding of the law. In his conception, laws are distinguishable in terms of ‘primary’
and ‘secondary’ rules of law. ‘Primary’ law represents those rules that impose obligations on
the subjects, in other words, these laws are similar to Austin’s idea of ‘positive laws’.
However, Austin’s conception does not recognize ‘secondary rules’ which, according to Hart,
are rules about rules.
For instance, laws like the Indian Penal Code (IPC), etc. impose an obligation upon
individuals to regulate their behaviour in social context accordingly. However, one of the
closest examples for secondary rules thus becomes the Code of Criminal Procedure (CrPC),
which confers powers upon authorities to formulate, amend, ascertain its compliance. As an
implication, this means the set of primary laws and secondary laws loosely forms the core of
the concept of law. Hart emphasizes that the combination of primary and secondary rules is
not sufficient to characterize it as a legal system. Thus, he conceptualizes an ultimate ‘rule of
recognition’ which exists as a matter of official practice, and authorizes the deliberate
creation of legal rules. For instance, the Constitution of India ultimately forms the
cornerstone of legitimacy for all laws ever formed through parliamentary procedures.
Thus, Hart’s conception does not recognize an ultimate sovereign as a source for validating
laws. Rather, he presents the ‘rule of recognition’ as an ultimate criterion to draw legitimacy
from, in a legal system. Hart further maintains that the validity of these rules is not dependent
on their general acceptability in people, like in the case of other social rules. Here, Hart’s
positivism takes shape. Since, it implies that for legal rules to acquire the validity of the law,
they do not require popular or moral legitimation from the people. Hence, Hart, although
rejects that laws are commands, yet accepts that there is no relationship between morals and
laws.

Dworkin and legal positivism as an approach

Dworkin in his critique begins by reinstating what the fundamental tenets of legal positivism
are:
The principle of pedigree
Dworkin observes that according to legal positivists, the law of the community is a set of
special rules which are identified by their pedigree, in other words, the manner in which they
were conceived or developed. Rules, not fulfilling this criterion of specific pedigree, are
‘spurious legal rules.’
The extent of the law
These specific legal rules, that fulfil the criteria of pedigree, may sometimes not cover a
particular case or situation, in such circumstances, the decision reached by the judge is not
equivalent to ‘applying the law’, rather it is equivalent to reaching beyond the law to take
reference from some other standards to decide the case.
Legal obligations
Obligation to act or omit to act in certain ways, can only be sourced from the specific legal
rules. If a judge’s decree requires a person to act in a certain way, it does not mean he is
fulfilling his legal obligation as to that issue.
Dworkin, however, humbly accepts that these ideas are just a ‘skeleton’ or fundamentals of
Legal Positivism. Accordingly, different theorists incorporate different understandings of
Legal Positivism around this skeleton.
Dworkin’s observations from Hart’s positivism
Dworkin, in his criticism of Legal Positivism, distinguishes between Austin’s and Hart’s
conception of Legal Positivism. He recognizes that Hart’s conception is more complex than
Austin’s in many ways, firstly, Austin distinguishes the rules in terms of ‘primary’ and
‘secondary’ rules, and secondly, that Hart includes a broader understanding of rules, and
rejects the basis of command as provided by Austin. Thirdly, Hart’s criteria for the validity of
legal rules, that is ‘rule of recognition’ was more sophisticated than Austin’s conception of
rules as a command. This is because the legitimacy granted to the legal rules by a rule of
recognition is conceivable more legitimate than a naked command given by a sovereign.
Dworkin and the distinction between principles and policies
Dworkin distinguishes principles and policies. A ‘policy’, according to him, is a standard
which formulates a goal to be attained, mostly, in the form of an improvement in some
economic, political, or social factor. These goals may be negative as well, in the sense that
they seek to protect some factors from adverse changes. However, ‘principles’, on the other
hand, are standards that are to be complied with because it is a requirement of justice or some
other aspect of morality to do so.
Dworkin and the distinction between rules and principles
To critique Hart’s model, Dworkin distinguishes principles from rules. For that purpose, he
uses the case of Riggs v. Palmer, wherein a murderer claimed that he was entitled to inherit
the property of his victim, his grandfather. The rules governing testamentary succession did
not deal with such facts. However, the court went ahead to say that rules were subject to the
fundamental maxims in common law like ‘no man can benefit from his own wrong’, hence
the court did not grant the murderer the right to his grandfather’s property.
Dworkin provides another case of Henningsen v. Bloomfield Motors, wherein the Court was
faced with the question, whether an automobile manufacturer can limit his liability in case the
automobile is found defective? The court observed that Henningson should be made good for
his medical expenses by the manufacturer because it is the requirement of consumer and
public interest, even if the statute did not say anything about this situation.
Dworkin argues that in both cases, the courts relied on principles instead of rules to decide
the disputes. He argues, that there is a logical distinction between rules and principles, which
can be made out as follows:
 Rules are applied in all or nothing fashion, in the sense that, a rule comes with a
mandate that the case must be decided in accordance with it, any deviation is not
possible, however, a principle may not necessarily impact the conclusion of a case.
 Valid rules cannot come into conflict with each other. If they conflict in a particular
case then, they are not valid. Legal principles, however, may conflict but may not
necessarily lose their persuasiveness.
 Accordingly, in case of conflict between principles, a judge weighs their legitimacy as
to the situation, this means that ‘principles’ have a dimension of their relative
weightage in a situation, which in case of rules, is not possible.
 The rules can either be valid or invalid. In case of conflict between two rules, either
the conflict is settled by the use of some other rules or by use of some other important
principles. But ultimately, rules are characterized conclusively as valid or invalid.
Following this distinction, Dworkin draws two major arguments against Legal Positivism,
firstly, that it ignores the impact of principles in decisions of even those cases where rules are
clear. Secondly, it exaggerates the role of judicial discretion in cases in which the rules are
not clear.
Dworkin also argues that the positivist doctrine of judicial discretion is that if a case is not
within the purview of an established rule, the judge must exercise his discretion only in the
light of the sources of rules as specified by rule of recognition, is not tenable since judges do
decide cases while relying on moral or social policy considerations. Thus, where the express
law is not an answer, the judge must step outside the law. This is to say that, in cases, where a
rule cannot mechanically apply, a judge is not necessarily bound to reach a certain conclusion
in light of principles.
Dworkin and the types of disagreements
Dworkin, in his later work, Law’s Empire, distinguishes two kinds of disagreements legal
practitioners can have as to a law, firstly, the empirical disagreement, which means that in
certain cases, although the lawyers can agree that a criterion granting legitimacy to a rule is
legally valid, there may arise a contention as to the rule’s satisfying the criteria. For instance,
two lawyers may agree that the Supreme Court’s decision is binding on subordinate courts,
but they contend that the legal question involved in the case was explicitly dealt with by the
Supreme Court. Such disagreements are empirical, thus there’s no difficulty for positivism.
However, secondly, he observes the theoretical disagreements, which means that in certain
circumstances, the lawyers may agree as to the fact of rule’s creation, but disagree whether
those facts are sufficient to give the rule the status of legal authority. For instance, the cases
involving the constitutionality of the legislation passed by the Parliament. There’s no
contention as to its legitimate creation but there’s contention as to its moral and policy
considerations. Thus, these kinds of theoretical disagreements pose a challenge to Legal
Positivism as they concern the criteria of legal validity itself, which according to Hart’s Legal
Positivism, is restricted to rule of recognition.
Dworkin on ‘all law is enacted law’
Another criticism provided by Dworkin to Hart’s model of Legal Positivism says that Hart
purports that all law is a product of deliberation by people, and such laws are aimed to change
the community through the general obedience that follows the creation of such rule. Dworkin
argues that Hart has ignored the idea that legal rights may exist even in the absence of any
explicit legislation.
Dworkin and the social rule theory
Dworkin observes that Hart’s theory maintains that every duty, including a judge’s duty to
apply the law, presupposes the existence of social rules that legitimizes those duties. He says,
according to Hart, those social rules come into existence because of some practice-conditions.
When these practice-conditions are met by a certain kind of behaviour from the people in
certain situations it forms a social rule, and thus imposes a duty. For instance, he says,
members of a group of churchgoers remove their hats when they enter the church when
someone asks why they do so?
The answer comes that this is ‘the rule’ that requires them to do so, in case someone deviates
from such rules, then he has to face criticism and punishment. For Hart, Dworkin says, this
example means that the group ‘has’ the ‘social rule’ that needs to be followed. Dworkin here
contends that the so-called social rule theory is refutable. He contends that sometimes a
normative rule, based on the existence of a certain normative state of affairs can also lead to
the duties of an individual. This cannot be done by a social rule that only accounts for a
certain factual state of affairs.
2.5 DWORKIN OF ADJUDICATION
A THEORY of adjudication remains one of the more elusive goals of modem jurisprudence.
Who should resolve a legal dispute and how should they resolve it? In Taking Rights Ronald
Dworkin attacks the positivist thesis of H. L. A. Hart’ that in hard cascs judges exercise a
quasi-legislative discretion in deciding for one party or the other. Dworkin rejects this as
descriptively false. He also finds it normatively unsatisfactory because undemocratic (since it
involves lawmaking by judges) and unfair (because those laws are applied ex post fucto to
the litigants). Dworkin’s theory of adjudication is that in all cases judges weigh and apply
competing rights. Even in hard cases, one party has a right to win. His theory of adjudication
is tied to a theory of what law is. For Dworkin, law embraces moral and political as well as
strictly legal rightss Dworkin develops a third theory of law. Law is neither merely the rights
and duties created by legislation, custom and precedent; nor is law merely the edicts of
natural law or morality. Rather, law is the body of rights given expression to in legislation,
custom and precedent, plus the political and moral rights that arc implied by the political
theory that best explains and justifies the existing legislation, custom and precedent. The task
of a super-human judge, Hercules, is to construct a political and moral theory that best
explains and justifies the existing legal material, that ruling theory being the best guide to the
rights Hercules must apply to reach the correct decision’ in a hard case. Dworkin has
produced a sophisticated version of the “ Open Sesame ” theory of adjudication.
Dworkin argues that his theory is not defeated by complaints about judicial law-making or
retroactivity. Hercules decides hard common law cases on grounds of principle (weighing
rights), not policy. Hence he is not a quasi-legislator, and the principles are not applied ex
post f acto. ’ My concern is with Dworkin’s claim that the rights thesis “provides a more
satisfactory explanation of how judges use precedent in hard cases than the explanation
provided by any theory that gives a more prominent place to policy.” He asserts a link
between principled adjudication and the doctrine of precedent.
Dworkin explains that the doctrine of precedent gives a judicial decision two types of force. It
has enactment force (its effect on future cases covered by its exact words) and gravitational
force (its influence on later cases that fall outside the language of its opinion).” The language
of a judicial decision does not explain its gravitational force. Nor do arguments of reliance,
convenience, or accumulated wisdom. Gravitational force is justified by “the fairness of
treating like cases alike.” lo Because precedent is based on fairness, a judicial decision has
gravitational force only if it was decided on grounds of principle. If an earlier decision is
seem as justified by an argument of policy, then it only has enactment force.