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Jurisprudence Notes
Jurisprudence Notes
01 July 2013
11:21
Read this in a whisper. Read this like a secret youve been hiding from yourself.
Read this because you, like the hidden soul beside you, love to be loved, hate
because you are hated, care because you cant help but try to mean more.
Dream
Because it is within dreams that we fear, that we wonder about the past, that we
find the thoughts of our souls and the stutter of our hearts as we look into an
uncertain future.
Shakespeare was wrong... All the worlds a dream. Not a stage. Never an act.
When do you draw the line then, dear reader? Answer me with a whisper from
your soul. Between reality and dreams? Dreams and reality? Realistic
dreams? A dreamlike reality?
Process of human knowledge (oookaaaaay? o.O)
Learning, unlearning, relearning.
Form and content of knowledge.
Ability to argue against what you read.
Focus on: analytical or positivism, classical, naturalism, realism.
Must abide by law, no matter how ludicrous it is.
Truth cannot be challenged.
Facts can be challenged. It is the state of a thing which is not disputed. When disputed, it ceases being
a fact.
State: what constitutes the state, how the state functions. The content or 'meta' part.
Meta implies the philosophy of going beyond what naked eyes see.
Concept of Semantics. (The study of language)
The meaning of law in Social Science and in Applied Science
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2nd July
02 July 2013
11:43
Nature of law
When law is analyzed philosophically, it ceases to be just rules and becomes
a system.
The word law is used for both normative as well as descriptive purposes. The
laws of physics are descriptive in nature. The laws of social sciences are
normative in nature.
(continuing about social science law) Because they deal with human
behavior.
Philosophy as a branch is divided into: logic, ethic and physics
So philosophy of law involves the study of logic and ethics.
The term 'war on terror' is an incorrect term. War is between two states.
There was a reason for the use of the above term. The use of the term 'war'
grants advantages to the parties involved. (e.g. in India the use of article 352
would empower the government to curtail certain civil liberties of the
citizens)
What should be the standard behavior for humans in a system?
Normative order: when you are bound to do something. This requires an
institution to enforce the normative order as well as an institution to
adjudicate whether the order has been violated.
If the adherence to a normative order is left to choice, then it becomes a
question of morality.
Laws reflect the society that you want to create.
Normative now means binding obligations.
Can laws be immoral? Are laws inviolate? Or can they be categorized as
good or bad? If the latter is true, then what determines the goodness or
badness?
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4th July
ODG I give up. Why is he discussing physics? GAAH!
Great. Space theory. Cosmos cosmos woo!
04 July 2013
10:32
Nature of Law
Philosophy of law reading:
Two approaches: Plato and Raz. (approaches to understanding the nature of law)
Plato's theory: for things to exist there is a requirement of abstract. Things do not exist only
in space and time or in mind. It can exist beyond this. This makes is abstract. (like the
number three? Eeeeeeh? o.O so it exists in abstract. So values exist in the abstract possibly
as actual physical entities as opposed to mere concepts in reality)
(Basically, the number or value three is a concept in reality, but in abstract it may have
independent existence without having to rely on objects to lend it meaning) .
Must understand the nature and content of law.
People who disagree say that the nature of law can only be what can be visualized or
actually seen. So it is a system or an organized system. Law is the product of a legal system
as opposed to law existing as an abstract concept independently which results in a legal
system developed to implement it. (Oooh, I get it...but it sounds like the chicken and egg
argument >.>)
Nature of law cannot be simplified because it cannot be universally applicable.
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5th July
05 July 2013
11:42
There are laws made by opinion in society and not because of the political superiors
making laws for the inferiors. This is customary law. So the term laws is incorrect because
they have not been made by a political superior like a sovereign.
Overlap between 1 and 2 is solved by calling 1 law strictly so called. The province of
jurisprudence is law strictly so called.
Law means the existence of political unity.
Law must be the result of a command. So customs, which are the result of opinions, cannot
be termed as law. So international law is also not law, as there is no international sovereign
which lays down the law.
Analysis:
1) Command
2) Sovereign
3) Concept of duty
4) Sanction
What is command?
READ the chapter in which he has explained the phenomenon of command
This school is also called imperative school because it treats law as a command.
Can there be a command issued by the sovereign which is not a law?
Article 368 uses the word Bill for the amendment of the constitution. How do states ratify
this? Do they also have to pass a bill? The word used for states is resolution. They do not
have to pass a bill.
Is the word 'law' used in 13(2) broad enough to include law as under 368 as well 246 and
248 (residuary power of the legislature).
No, there is a distinction.
Austin also says that a law which repeals a previous law is not a command, but it will still
be a law.
The obligation must carry evil consequences which will take place if the obligation is not
carried out. This makes it a duty. Thus there is a difference between obligation and duty.
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6th July
18 July 2013
10:28
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8th July
08 July 2013
11:41
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9th July
09 July 2013
11:49
Presentations
Analytical school of thought.
He wanted to determine exactly what jurisprudence is.
Two categories: law properly so called, law improperly so called
Law proper: divine law and law made by man for man
The relationship between the man who makes the law and the others is that
of suprerior and inferior (political.)_
Improper law: morality or opinion and analogy.
Morality and law sometimes overlap. Important to distinguish this overlap.
So another category: law strictly so called and customary law.
Law is a command. It is determined by the position of the person making
the command. Concept of duty and obligation. The evil is also known as
sanction. Command from one rational being to another, there should be an
evil consequence if it is not followed, it must be expressed. Certain laws are
not commands.
Imperfect laws: law without sanction. Commands without sanction.
Command is the significance of the desire of the sovereign. It arises from
position rather than style.
Command can be general or particular, and results in an obligation.
Position by itself is enough to constitute command.
Style requires the support of position to constitute command.
Law means that there must exist a political unity. An intelligent
communication of law. Thus cannot have laws among animals.
Sanction is used to enforce obedience. Rewards cannot be used for
enforcement.
Position is recognized by the habitual obedience of the populace.
Class begins!
READ lecture VI: p.g. 50.
How do you determine whether a society is politically organized?
The habitual obedience must be seen in a political relationship (rather than
that seen in social relations as seen between parents and child)
The test to determine political organization is that the bulk of the populace
would be in habitual obedience to the sovereign. Austen defines law as a
legal system. Nature of laws may vary but the legal system remains the
same.
Superior means a person who is a sovereign. A sovereign is present in a
politically constituted society. This is denoted by the majority of the
populace giving habitual obedience to a person or a group of people. This
person or group must not be in habitual obedience to anyone else. Yes, in
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11th July
11 July 2013
10:40
Lecture VI
Analyzed the meaning of political society.
Difference between polity and society.
Polity: bulk of the society gives habitual obedience to a determinant.
(Understand the coherence of the argument. Analyze the argument)
He uses the term 'rational being' to exclude animals from this definition.
How did organized society come into force? Hobbs said that Legislature is
not the one who creates the law. It is the one because of which the law
continues to be in force.
Analyzes law made by superior to inferior. Superior means sovereign.
Sovereign is present in a political society.
The constitution of India constitutes a political society. The outcome of a
political society makes it organized. This relationship which results in
organization makes it political. The outcome of a political relationship is a
legal relationship.
So the constitution of a country is not a social document. It establishes a
political relationship.
Plato said that the maximum population for a city state should be 5060 for
efficient governance.
Political society can only be formed when it is an organized society.
Wow. Spectacular analogies -_The purpose behind the constitution of India was not to create a political
outfit. It was to delete anomalies in the old society of India.
The constitution of India was a tool to achieve a goal. But this goal was
social, not political.
Why is international law not considered law according to Austen?
Because during his period, international law could not be termed as a
command.
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12th July
12 July 2013
11:47
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15th July
15 July 2013
11:45
Said that Austen considers only primary rules. But there are secondary
rules too. Certain laws have an indirect effect. (E.g. Keshavananda Bharti
Case restricts the parliament, but the eventual effects trickle down to the
citizens who are protected by basic structure)
Modern society requires the existence of primary and secondary rules.
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16th July
16 July 2013
11:52
Kelson says that even in Criminal law, the sanction is not sanction. Criminal law is of
two parts: defining the act, and then granting the power to the judiciary.
IMP: On this view what is ordinarily thought of(possibly page 36)
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18th July
18 July 2013
10:32
Lays down a very simplistic human society model. One sovereign, Rex 1. After a
few years, people are in the habit of habitual obedience to him. If he dies, the
son Rex 2 claims to become the new king. Would he have habitual obedience?
Are the laws effected by Rex 1 still effective?
Habit is a factual situation.
Habit does not create succession. Succession is the product of rule.
Normatavity is not created by habit, but by rule.
Rule and Habit are similar in the sense of both being external, both need the
occurrence of practice.
Rule, however, also has an internal aspect. So the breaking of a rule is met
with opposition, often self opposition. Because the individual is aware that the
rule ought not to be broken. This is the internal aspect. Pressurization of
society.
Succession: legitimate expectation that the son succeeds to the throne. This is
possible only in the case of a rule.
In 1944 England, a woman was hanged for fortune telling. In response to an
act known as the 'Witchcraft Act' 1765. (wow. -_- /slowclap)
So previous laws are not obeyed subsequently always.
READ: Chapter 4.
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1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
Why So Serious?
A-Yo
Sherlock
Dream Girl
Ring Ding Dong
Stranger
1000 years always by your side
Stand By Me
Fire
Lucifer
Hello
Replay
19th July
19 July 2013
11:46
Look at notes from the reading of Chapter IV. The notes in the Ulf book! (haha
EXO reference xD)
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23rd July
26 July 2013
17:47
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25th July
26 July 2013
19:00
Prediction theory-the basis for the difference between being obliged and
having an obligation. External observer says that this cause allows him to
predict the behavior of the internal community.
The concept of 'being obliged can be applied in a simplistic society. The
requirement of law is based on the principle of sanction. Deliberate
disobedience of an obligation makes it cease to be law (wait...I think he's
talking about the proportion of evil to the harm of doing the obligation)
(Okay off we go into Lala Land :P)
Sanction is the justification for following the law. It is not the cause of law.
External observer-can tell what the rule is, even though the rule is not
applicable to him/her.
Internal aspect is a form of social pressure. Sanction is thus a result of such
internal behavior. It is the justification for following the law.
Shift to modern society.
Says that primary rules were present in a primitive society.
Problem of uncertainty- no information about exactly what sanction
violation of a law would lead to.
This is resolved by the rule of recognition. To understand where information
needed by the individual can be obtained.
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26th July
26 July 2013
19:41
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29th July
14 August 2013
18:24
International Law
Is the meaning of law the same?
Form of law-system
Content of law-obligation
How do you determine when a state is created?
So the fact that International Law is called law does not automatically make
it law. It must fit within the concept of law.
Concept of law:
1) Must have a system
2) System must contain obligations
Rule of recognition: sources of law.
So when talking about systems you would naturally look for organs such as
the legislature, executive and judiciary. So does the absence of these mean
that it is not law?
Is it right to expect elements of municipal law in international law?
Sanction is an exception. It is meant for deviants.
(This is going SO off topic. Uncharted waters! xD)
Sovereign has different meanings when considered from the point of view of
municipal laws and when considered from the point of view of international
law.
Theory of interdependence is replacing the concept of sovereignty in the
sphere of international law.
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30th July
14 August 2013
18:35
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2nd August
11 September 2013
18:27
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6th August
11 September 2013
18:59
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8th August
11 September 2013
19:19
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12th August
14 August 2013
19:20
'is/ought'
Someone's subjectivity becomes someone else's objectivity-> as act leads to
creation of norm
Reaction-> the uncertain 'ought' becomes the objective reaction of the
subjectivity of the wish.
All objectivity is a reaction to subjectivity.
Each norm is validated by a higher norm. this deals with validity of law and
not legality of law. What validates the ultimate norm?
Creation of society lead to the formation of the grundnorm
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13th August
13 August 2013
11:45
Social Order
The norm must exist in space and time. The norm is personal and material.
Social order is a normative order which determines the behavior between
humans. Social order is the constitution. It is not about the validity of the act,
which is determined by a norm. It is about the validity of a norm.
Norms are bound by space: implies the territorial limitations of norms. Also
refers to the concept of actus reas as required by criminal law. Are laws which
have never been acted upon still laws? The norm is in existence, but the
conditionalities for following the norm have not been met.
Application aspect of law determines the temporal aspect of law (talking about
retrospective and prospective laws).
The Personal and Material aspect forms the core of the validity.
Human behavior results in the creation of norms. This is personal aspect of
validity. How does norm interplay with human behavior-Positive (directs or
forbids directly) and Negative (has no direct directions-neither forbidden not
allowed)
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16th August
11 September 2013
19:26
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19th August
19 August 2013
11:46
The distinction between moral norms and legal norms will be explained by the concept of
sanction.
What does he mean by the term order?
Law: time-when
Spatial-where
Personal-whether applicable on the individual or not
Material-various aspects of human behavior. What behavior should be encouraged or
discouraged.
Individual norms taken together to indicate human behavior result in an order.
What is sanction?
Two types:
1) Approval and disapproval
2) Evil as coercion
Social order:
1) Moral order
2) Legal order
Should determine which aspect of human behavior should be regulated by coercive element
which would term it a legal order.
It is possible to have a situation where something is permitted and another situation where
the same thing will be permissible. (E.g. homicide is forbidden, but is permissible in special
exceptional circumstances such as self defense, etc.)
Sanction:
1) Reward
2) Punishment-forms a coercive order. It must have an evil in it, and must be organized.
Sanctions are also included in moral orders in the form of approval or disapproval.
However, this is not organized, unlike the case of a legal sanction which is organized. Thus,
it cannot be called punishment.
Monopoly of violence
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22nd August
22 August 2013
10:46
For Kelson, law is a phenomenon which is concerned with human behavior. The first area
where this is seen is where a human's behavior is the objective reaction to someone else's
subjective wish. This creates a standard behavior called norm. one of the outcomes of this
creation of norm is the formation of a social order.
Distinguish the normative order from the social or legal order.
When a social order evolves, it becomes a state.
Normative orders must have a spatial and temporal limits.
Social order
Normative order is related to human behavior. So when two or more human behaviors are
conjoined, then it is termed social order. This social order matures into a State over a
period of time. Thus, social orders are the primitive concepts of the idea of state.
Over time social order morphed into three types:
1) Moral order-have sanctions, but these are not forcefully enforced
2) Religious order
3) Legal order-sanction which is a coercive act and carries punishment inflicted against
the will of the sanctioned individual. Self imposed punishment is an exception to this
rule
Relation between authorization and permission creates a state from a social order. It
creates an institution.
In order to ensure the effectiveness of sanctions, two conditions must be met:
1) Individuals within a state must give up the use of violence among themselves,
reserving the state's right to use such force.
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READ
Page 193: Chapter 5/ 6
Grundnorm theory as the basic norm
theory
23rd August
23 August 2013
11:52
Basic Norm
When you say something is valid, you mean it is binding. Does the creation of the concept
of authority presuppose the existence of something? Based on the major premise and minor
premise. Habitual obedience is not enough to establish authority. His authority will also be
based on the basic norm of the system.
Religion is premised on belief or presupposition.
Presence of the two types of norm systems differentiates the content of the norm from the
validity of the norm.
Centralization of the use of force leads to the development of institutions in society. These
institutions give rise to the notion of authority.
The 'is' does not explain the 'ought'. Actual behavior does not state whether it is ideal
behavior.
The 'ought' statement (major premise) coupled with the 'is' statement (minor premise) gives
the normative order. You cannot explain the normative the order in the absence of either of
the two premises.
The 'is' statement will be a derivative of the 'ought' statement
'ought' raises the question of validity.
'is' raises the question of legality of the act.
The distinction between 'knowing' and 'willing'.
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29th August
29 August 2013
10:45
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2nd September
02 September 2013
11:45
DWORKIN
Model of Rule-I
Are the primary and secondary rules enough to encompass all situations under law? Then
what happens to the application of principles?
This requires a distinction between the rule and the principle. This is because a rule has
the concept of being obligated and being obliged. How do we distinguish rule from
principle?:
1) A rule is an all or nothing identity. It must be applied or rejected in its entirety.
A principle has an dimension
2) Rules may have an exception attached to it. This means that you have to apply the
rule and only then can you avail the exception.
Principles have an dimension. This means that you will decide whether to apply the
principle or not based on the case. You can determine which principle can be used in
the particular situation.
READ: the discretion part.
Jurisprudence Page 32
3rd September
03 September 2013
11:52
This article criticizes the concept propounded by Hart that law consists of
only rules. It also requires principles. He is a realist, which implies that he
believes that the law is made by the judges rather than legislature.
He raises the question of whether judges end up legislating when passing
judgment.
Law is of two kinds:
1) Institutionalized-passed by the legislature
2) Non institutionalized-this refers to customary practices
Rule of recognition gets its binding value from social acceptance. Then why
can this not be used for principles as well.
If a rule is applicable in a situation and is not applied, then the rule will be
invalidated.
Discretion
Three kinds:
1) Weak discretion-use of judgment
2) Weak discretion-final authority to make a decision.
3) Strong discretion
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9th September
11 September 2013
22:08
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10th September
10 September 2013
11:59
Hard Cases
Concrete right: when rights conflict with public policy. They can be used to
determine what weightage ought to be given to what. These can be
institutional and must be legal principles and not abstract principles.
For hard cases, use principles that are institutional rights.
Common law principle cannot be applied without limit.
Ingredients of a Hard Case:
1) Law suit
2) Cannot be brought under rule of law laid down in advance
3) Judge has the discretion to decide either way
When a statute is passed, a policy is transformed into a principle. (check this
though)
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12th September
12 September 2013
10:42
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13th September
13 September 2013
11:45
The preconditions of this article is the presence of a hard case, with no clear cut rules.
Right thesis-judges search for preexisting rights. This is different from the act of legislating.
Duty of principle-the search for preexisting rights to be used to decide a hard
case.
Judiciary and Legislature are both included in the political domain. So the difference
between policy and principle is political rather than legal.
Judges are also political authorities as they decide on matters of polity.
Judges are not free from their own personal morality and political considerations when
using principles. So is it right to say that judges rely only on principles and not policies?
Two kinds of principles of application:
1) Intuitive-this might have the problem of bias.
2) Institutional
Can argue that judge's morality is curtailed by precedents. But these are in
turn the result of judge's morality.
This problem can be solved by the use of political rights, which depend on
political considerations.
But this has problems too.
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16th September
16 September 2013
11:47
Jurisprudence Page 38
17th September
17 September 2013
11:53
Policies achieve goals. Rights do not have a comprehensive scheme and thus
they do not have to achieve a goal.
So person arguing on the basis of a policy will be asked what goal he wants
to achieve.
Rights are enforced when there are clogs in the legitimate right to expect. So
according to Dworkin, the judge looks at history to determine what was the
pre-existing legitimate expectation.
Principle is an individuated aspect of a goal.
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26th September
26 September 2013
10:49
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27th September
27 September 2013
11:51
Dworkin's Hercules
Criticism of Hart's Theory that judges legislate when deciding Hard cases: known as open
texture of law or open cases.
Abstract rights and concrete rights must be institutional rights. What is meant by the term
institution?
The constitution is the point where people decided to live together. It is the political
representation of the people's aspiration. Certain morals that these people associate
themselves with. This is the justification for the presence of the constitution. It gives Hercules
an idea of the customs that have percolated over a period of time.
READ: Fulher: First 2 chapters (Book: Morality of Law)
Jurisprudence Page 41
30th September
30 September 2013
11:47
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1st October
01 October 2013
11:58
Jurisprudence Page 43
3rd October
03 October 2013
10:48
Spelucean Explorers
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7th October
07 October 2013
11:35
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8th October
08 October 2013
10:43
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8th November
08 November 2013
11:38
KANT
Book: The Moral Law
He has propounded the theory of moral law and has emphasized reasoning (also called
knowledge). The content of morality is based in reasoning or rationality or causality (see below
for the reason why).
The conduct is taken into consideration when deciding morality.
Act divided into:
1) Instinct
2) Rationality
The distinction between acts derived from the above two makes the distinction between animal
and human.
The causality of the action of a human is rationality.
So are instinctive acts natural or are rational acts natural?
Instinct: urge and immediate reaction. No intermediate thought or reasoning.
So specified that it is the study of a rational being. So if a living organism acts purely on
instinct, it cannot be called a rational being.
Is rationality granted by nature?
When a man thinks and reasons, is it natural or unnatural?
This has given birth to the theory of knowledge.
Knowledge is of two kinds:
1) A priori-already known and is transferred to us
2) A posturari-gained through experience
Is the limitation of human reasoning the boundary of knowledge?
Study of rationality gives rise to the concept of morality.
Rationality considers whether the act to be performed will be a good act or a bad act.
How to decide whether an act is good or bad?
His idea is that the best virtue a human has is good 'will (implying good intentions).
So a human weighs the consequences of his act to determine the goodness or badness.
Sometimes the happiness derived from the act may decide the goodness or badness. But does
this determine morality?
Good will is will which results in good in all circumstances and not that which is good in only
narrow circumstances or qualified good.
Good divided into:
1) Qualified-because of personal interest. It is a good act, but it may not be a moral act.
2) Absolute- good under all circumstances without any qualifications. This is determined by
the three principles of Kant:
a) The motive of duty-it must be carried out with this motive. A human action is morally
good not because of immediate inclination (causes which move you may not affect others)
or even self interest but because it is done for the sake of duty. It is a result of duty.
b) Concept of duty-an action done from duty has its moral worth not from the results it
attains or seeks to attain but from a formal principle or maxim-the principle of doing
one's duty whatever that may be. In order for a duty to exist, there should be a principle
Jurisprudence Page 47
one's duty whatever that may be. In order for a duty to exist, there should be a principle
c) Duty is the necessity to act out of reverence for law.
If morality is subjective, then there is no possibility of an absolute good. Thus morality is not
subjective, but the tests to determine morality is subjective. Meaning that whether the act is
good or bad is judged by its effect. But the reasons which lead to the commission of the act is
subjective.
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11th November-IMP
11 November 2013
11:45
How to study
Syllabus-all the authors in class. What has been covered in class.
Kant-library notes
Fuller-module-first two chapters
Acquines-module
Kant
The concept of knowledge is dependent on the concept of human thinking,
which is called rationality.
What is the meaning of the term rationality?
He claims that it is the concept of 'good will'. Certain conduct is performed
because the derivation of happiness out of it is desired.
Thus, the understanding of what amounts to good becomes the study of
morality.
If the act is prompted by good will, then it will be good, irrespective of the
outcome or consequences of such act. It will be morally good. However, note
that all good acts may not be morally good. Morally good acts are not
prompter out of self interest/self inclination. This means that acts taken out
of sympathy are good, but not morally good.
1) Moral acts are performed not for self inclination, but for the sake of
duty.
2) A moral act is moral because it gives effect to a maxim-that of doing
one's duty
3) Duty is the necessity to act out of reverence of law.
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12th November
12 November 2013
11:50
FULLER
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14th November
14 November 2013
10:50
Fuller is concerned with the morality of law. What are the specific reasons for laws to be
made?
The reasons for which the law is made signifies morality of law.
People giving duty must first understood what 'perfect good'.
Eventually, the pointer of difference between MoA and MoD must be removed.
Jurisprudence Page 51
15th November
15 November 2013
10:09
Chapter 2: Rex.
Codification of laws.
Law should be generalized in a manner which includes everyone under its ambit.
Problem with the king deciding all cases: they are decided according to the personal beliefs
of the king. There is no systematic understanding of the law.
The difference between Rex and judges: judges are trained in the law. They are objective.
They are aware of the need to concentrate on law rather than the litigant.
It also talks about the hardship of drafting a code to describe the conduct of humans in a
legal system.
Generalization, pattern, clarity-three problems faced by Rex.
Along with generalization (making it applicable to everyone) it should have a pattern. There
should be a uniform method of deciding cases. Thus, mere generalization is not enough.
The second requirement is that of pattern. This can be best established if judgments are
recorded, so that a pattern in the decisions can be noted. Generalization gives you how
everybody's conduct ought to be and patterns shows how law is evolving and in what
context it is evolving.
The third requirement: clarity. Generalization and patterns are not enough. It is also
important to understand what conduct is to be followed under law. Unfortunately, most
laws do not have this requirement. Laws are loosely worded.
Hoffield
15 marks. Application question
This article is about jural relationship
All about understanding jural relationships.
Problem identified: the use of the word right. This word is misused extensively. It is used to
cover all jural relations: immunity, power, privilege, etc. This is wrong, it should not be
used for all cases. Twitter v Atkinson (?) case
Then how to define right?
Jural relationships establish locus for cases.
Right is claim. If there is claim, then there can never be a no claim. If there is a claim, then
someone else must have an obligation. This someone else will create a jural relationship
with you.
Claims: situations which are protected by law.
Jurisprudence Page 52
18th November-SYLLABUS
18 November 2013
11:47
Syllabus
What he has taught.
Positivism-Austin, Hart, Kelson and Dworkin
Natural Law: Fuller and Kant (Acquinas)
Hoffield
Justice (well done micheo sikhia >.>)
Only what has been discussed in class will be covered
Study Material
Read the original source.
Skip the parts not covered in class.
Follow the sources used in class.
How to study OTL
READ :P
Marks for originality and understanding the concept. For something which
makes sense and is analytical.
Analysis-explaining and simplifying to its simplest form (oh that makes
things so much better >.>)
Unfolding assumptions.
What to write
Make sense :P
Answer length is not relevant. (Hallelujah! :D)
Just make sure you answer the question asked.
HOFFIELD
Why: because other authors oversimplify the word 'right'
It gets confused to mean all possible jural relationships.
Jural relationships or legal relationships determine the behavior, character,
interest and other incorporeal things. These cause a conflict with corporeal
things. (eh? )
At the very outset, it seems necessary to emphasize the importance of
differentiating the purely legal relations from the physical and mental
fact that call such relations into being. Obvious though that these
suggestions seem, it is seen in legal arguments and judicial opinions,
an unfortunate tendency to confuse the difference between legal and
non-legal relations. Even in ancient law (Greek and Roman, it was
difficult to construe transfer of -non corporeal objects such as the
benefit of a contract. To them, the only thing that could be transferred
were corporeal objects.
The physical relation influences the legal relationship. It determines the
manifestation of fact. Physical fact.
So differentiate the legal relationship from the physical and mental fact.
The outcome of your interest in an object is property. Interest is a mental
fact and the existence of the object is a physical fact. This gives rise to your
jural relationship.
The interest changes the outcome of the jural relationship (see different
Jurisprudence Page 53
The interest changes the outcome of the jural relationship (see different
relations with property: mortgage, ownership, etc.)
So what is a fact?: operational and evidential
Operational: affirmative and negative.
These are facts which establish the existence of the jural relationship
There must be a fact to establish both a corporeal as well as an incorporeal
jural relationship.
An evidential fact is one which on being ascertained affords a logical basis
(though not conclusive) of determining other fact.
Jurisprudence Page 54
19th November
19 November 2013
11:50
Right
No Right
Privilege
Duty
Power
Disability
Immunity
Liability
If a person has a jural relation, he cannot have the opposite of the jural
relation in the same set of operative facts. Opposites are concerned with
the person claiming the original jural relation. Correlatives are concerned
with others present in the same fact.
Privilege is the negation of duty. Implies you do not have a duty to not to
do the act.
Disability-no ability to change legal relationship.
Power-correlative-liability.
Basically the consequences of changing the legal relationship must endow
another with liability.
Immunity-correlative-disability
Disabled from bringing action against a person who has immunity.
Jurisprudence Page 55