RISE OF JURISPRUDENTIAL MATERIAL

 WWII was a serious cause for authors to ask fundamental questions.

 Adolf Hitler came into power through constitutional and democratic process.
 In the process of consolidating powers, he passed laws and legislations. Allowed under the
Constitution.
 Laws designed to eliminate competition and ensure his power such as:
 March 1933- Enabling Act: Allowed his orders to become law within 24 hours of his
signature (ordinance; although it is temporary in India). No scrutinising body.
 March 1933- The Malicious Practices Act: Illegal to criticise the regime and its leaders.
Privacy of human beings interfered with as they were not allowed to speak ill of him even
inside their house. Punishment could extend to death penalty.
 April 1933: Nazi officials put in charge of all local governments in the provinces.
 May 1933: Trade unions abolished, their funds taken and their leaders put in prison.
 July 1933: Illegal to form a new political party. Nazi party was the only party.
 The Treachery Act 1934
 Law for protection of the Nation (Applicable to Jews):
 Changes in the names.
 Confiscation of possessions.
 Exclusion from public service.
 Prohibition of economic and professional activity.
 Banned from public areas.
 Prohibited from marrying.
 Can the legislations passed by Nazi party be called laws?
 What infuses the law-quality in a legislation?
 Is the constitution, giving the power to pass legislations, itself valid?
 Two fold test to determine whether a legislation is law or not ?
1) Made by appropriate authority
2) Made for the overall benefit
 Agreement for the prosecution and punishment of the Major War Criminals of the European Axis
and the Charter of the International Military Tribunal (8th August, 1945):
 Creation of Nuremberg Tribunal
 Crimes and punishments and the procedure of trials set out (mechanism of tribunal).
 Trials:
 Charges:
1. Conspiracy to wage aggressive wars
2. Crime against peace
3. War crimes
4. Crimes against humanity
 Defence: “Only following order”, “An order is an order”; Independent opinion was not
allowed in the military and that if opinion had been taken from every soldier, many wars in
the world probably would not have happened.
 London Charter of 1945:
 Article 6: Acts that are crimes within the tribunal’s jurisdiction -:
a) Crimes against peace
b) War crimes
c) Crimes against humanity: even if committed in consonance with domestic legislations
and law.
 Article 7: (for higher ranking officials) Official positions of defendants shall not be
considered as freeing them from responsibility or mitigating punishment.
  Article 8: (for lower ranking officials) The fact that the defendant acted pursuant to the order
of his government or a superior shall not free him from responsibility but maybe considered
in mitigating punishments.
 Article 9: Tribunal may declare any group or organization as a criminal organization.
 Article 10: In any such case the criminal nature of the group or organization is considered
proved and shall not be questioned.
 Article 19: Tribunal not bound by technical rules of evidence (expeditious and non-technical
procedure; to avoid arbitrariness)
 Article 26: Judgement shall be final and not subject to review.
 Article 27: Right to impose death penalty
WHAT BRINGS LAW QUALITY IN A LEGISLATION?
 One side
 Quality comes in legislations because they are made by people who are entrusted with the
law making tasks.
 Quality comes when procedure is followed
 If something is created by the right source and also in the right manner i.e. following the right
procedure, it is law.
 Other side
 Quality comes due to the content. There must be more than the technical aspects.
 The reason behind creation of this source or procedure; the constitution is considered as an
outcome of the social contract. Constitution if considered as a manifestation of the will of the
people, then the social contract is entered into by the people to make their status quo better.
 Law quality comes not only from procedure, but it must make the lives of people better when
enacted. Otherwise it is not in line with the purpose with which the constitutional / social
contract was created. i.e. something created for destruction and murder cannot be called law.
(Continuing the story)
 London Charter for punishment of war criminals, created the Nuremberg Tribunal and the
substantive and procedural law it has to follow.
 The defendants were charged with several offences; Their defence was ‘we were just following
orders’.
 Can this defence be accepted?
 The discussion went on one side like it cannot be accepted because there was mens rea, as the people
–chose- to join Hitler and whatever they did, was partly with consent. On the other side, it was that
the people didn’t really have a choice at all. They envisioned maybe a better world under Hitler.
 There were Articles in the London charter saying the defendants cannot take the defence that they
were merely following orders etc.
 Should we include morality and justness from determining the validity of a law?
 In order to judge the validity of something, we do not have to look at what it is going to achieve.
Validity has to be tested on other parameters. Whether something is intrinsically good or bad, is not
to be seen in context of law.
-Or-
 Justness is so intrinsically linked with law, that it can be a parameter to judge its validity. -How?-
 If you say a law can still be valid even if its immoral, then think if you were a judge, you found a law
to be unjust, would you apply it? So if you include morality and justness in laws, there will be a
practical difficulty in their implementation.
 Is it practically possible to include morality as a scale of judgment? This is difficult.
 DO we have an obligation to obey immoral laws? Does a judge have an obligation to follow a law
that he sees as immoral?
  DO we have a right to revolt against the gov?

 Law is not required to be intrinsically just and fair.

 Relation of Law with Justice/Morality: Whether Justice/Morality is external to law or internal to
law?
 Is law created by sovereign or sovereign created by law?

HOW TO IDENTIFY LAW?

 Possible Approaches:
1. Source Based Approach (emphasis on who is making the so called law)
2. Procedure based approach (emphasis on how the so called law is made)
3. Content based approach (emphasis on the moral quality of the so called law)
4. Objective based approach (emphasis on the substantive aim of the so called law)
 Schools of Thought (Classification of Opinions)
1. Positivism
2. Naturalism
3. Historical
4. Realism
Positivist School of Thought- JOHN AUSTIN (1790-1859)
 A rule made by intelligent being.
 Book: “Province of Jurisprudence Determined”; wrote between early 19th century and mid-
19th century, therefore had not witnessed any of the world wars, conception about law was not
very clear at that time, Bible was considered a source of law.
 Properly so called laws and improperly so called laws.
 Improperly: metaphorical and analogous.
 Metaphorical: when we use the word law for describing the behaviour of inanimate
world indicates some kind of regulated behaviour but it isn’t the behaviour of
humans, but that of inanimate beings; Example: law of planetary motion.
 Analogous: when there is something developing out of analogy. When something
starts or somebody does something and other people start imitating that person. Such
customs are not actually law but constitute improper use of the word. The whole
branch of international law falls under this too as the bulk of int’l law is customary in
nature. According to Austin, instances of such a use of the term law are the
expressions- ‘the law of honour’, ‘the law set by fashion’ and ‘international law’.
 Properly: Laws set by God for his human creatures (Divine Law) and Laws set by men for
men. When some human beings make laws for other human beings, it can be done in 2 ways:
(1) not as political superiors but in their private capacity (2) in the capacity of being a
political superior (Positive Law). Austin does not justify why laws made by god for men are
properly so called laws.

LAWS

Properly so called Improperly so called

Made by Men for Made by God By Analogy By Metaphor

Men for Men
 Not as Political Superiors Laws of Fashion/ Behaviour of
Not for Political Inferiors International law inanimate world

Positive
Morality

As Political Superiors Positive Law

for Political Inferiors


 Law is a general command of a sovereign backed by a sanction. – John Austin

 Whenever discussing Austin, Law means laws made by men for me as political superiors i.e.
positive law. Positive law is the only matter of jurisprudence. Positive words are used to
show that these are created by human source whereas laws made by god are not created.
Positive morality and law are attributable to human sources.
 Difference between law and morality is the source, law can come only from a particular
source i.e. political superiors. Anything and everything coming from a political superiors is
law. Morality does not come from political superiors. Anything made by other than political
superiors are positive morality. Difference between law and morality does not lie in content,
it lies in source. There are no grounds of qualitative connotation for law or morality, it is only
source. Positivist are all those whose answer to question is based upon the source, Austin is a
positivist.
 Ingredients that create law:
1. Sovereign – source of law
2. Command – format of law
3. Sanction – motive behind the law
 SOVEREIGN
 Sovereign: “The superiority is styled sovereignty. If a determinate human superior,
not in a habit of obedience to a like superior, receive habitual obedience from the bulk
of a given society, that determinate superior is sovereign in that society.” – John
Austin
 Features of Sovereign:
1. Determinate human superior
2. Receive habitual obedience from the bulk (positive mark)
3. Does not likewise obey any other superior (negative mark)
4. Indivisible
5. Unlimited
(1.) This eliminates ideas like Constitution as a sovereign. For him since Constitution isn’t a
human being, it cannot be sovereign. Also, other non-human systems considered sacred like
Bible etc. can be eliminated. Also, determinate: clearly identifiable. This might be one single
person or a group. In case latter, it should be clearly identifiable. This also eliminates the idea
that sovereign lies in the people as a whole. Need to identify clearly who it is. He doesn’t exclude
any form of government like monarchy, etc., in this definition. You can clearly point out the king
or queen. It includes aristocracy, democracy etc. In democracy, the people in the Parliament are
clearly identifiable. It is not necessary that sovereign is elected representative.
(2.) Positive mark of sovereignty; bulk is much more than majority and is less than 100%; a big
portion obeying the determinate human superior. If some among the bulk disobey the law, it does
not affect the sovereignty. Austin takes into account reality of legal/political system. Dissenters
exist but these things do not mitigate the law made. Habit of obedience – occasional breaches of
the law like over speeding cannot give a conclusion that people aren’t in the obedience of law.
This satisfies the positive mark of the sovereign.
(3.) Negative mark of sovereignty- it means the sovereign should not be obeying any other
authority just like people are obeying him. Example of G.G. of Pre-independence India (satisfies
first 2 conditions but not this one as GG had to obey the orders of the queen of Britain). He is not
sovereign. Are European nations sovereign
If in a democracy people by mass agitation make the government to form laws, it cannot be said
that such democracy does not possess the negative mark, as people are not forcibly compelling
the sovereign.
(4.) Indivisible – Sovereignty can be delegated but cannot be delegated. The central authority
must have an overriding power over the states. If the central sovereign does not have this the
states can be called multiple sovereign states. Linked with 2 nd and 3rd. If dissenters are more and
if habitual obedience is diverted in two directions, the territory gets split into two. Sovereign is
indivisible but can delegate power.
(5.) Unlimited – Can make any type of law. There must not be any restriction. Sovereign has
unlimited law making power, it is highest supreme authority and is not bound by anything else.
Our parliament does not have a unlimited law making power, it is subject to judicial review.
 COMMAND
 Every law or rule is a command. Or rather laws or rules, properly so called, are a
species of commands.
 A command is a signification of desire or an expression of a wish in an imperative
form asking you to forbear or to do something. The party to whom it is declared is
liable to evil from the other, in case he complies not with the desire. There has to be
expression in written or spoken form. Imperative form means no discretion is left to
the people, people do not have the option to follow or not follow. The law carries with
itself a compulsion. There must be an expression of wish, mere thought cannot satisfy
the condition.
 A command is a signification of desire. But a command is distinguished from other
significations of desire by this peculiarity: that the party to whom it is directed is liable
to evil from the other, in case he comply not with the desire.
 By every command, the party to whom it is directed is obliged to do or forbear.
 Problem - Every sovereign must re-issue the commands or laws.
 SANCTION
 “The evil is frequently called a sanction.” Sanction is an evil consequence which must
come from the sovereign.
 Being liable to evil from you if I comply not with a wish which you signify, I am
bound or obliged by your command, or I lie under a duty to obey it. The sanction must
come from sovereign, it must not be a natural consequence of an act. For example if a
sovereign says ‘Do not put your hands in fire’, it does not carry a sanction. The natural
consequence of getting a burnt hand is not sanction.
 Central Questions:
1. What gives ‘law quality’ to a legislation from Austin’s point of view?
The three factors, sovereignty, command and sanction, make something a law. The
essence of these 3 factors is “power”.
 2. What shall be the status of legislations passed by Hitler from Austin’s point of
view?
Obedience need not be wilful. All the elements are satisfied and therefore Hitler’s
legislations were legitimate and thus were laws.
3. What shall be the status of London Charter from Austin’s point of view?
Cannot be called law as it wasn’t created by a sovereign.
Command: Law is the guidance given by one intelligent human being to another
for intelligent behaviour. But LC does this retrospectively. It is only a device to
punish people.
4. If Austin was one among the judges at the Nuremberg trials, how would he deliver
the judgement?
Transition of Power
And no heed will be paid to human rights or individual rights.
 Austin’s theory helps in understanding why nations are split into two or more nations?
 We can predict if there will be an ongoing war. Both factions have sufficient
power from a sect of people. They don’t have the support of the bulk of the
people. But there can be different outcomes to these predictions. Parallel
authority or parallel power.
 Either one overpowers the other (Turkey) or the struggle continues indefinitely
till the split. There cannot be two sovereigns.
1. Shall we be able to explain with the help of Austin’s theory why the erstwhile
USSR was split into many small nation states in 1991? Or why India was divided
in 1947?
2. Shall we be able to predict, with some certainty, using Austin’s theory the future
of countries where there is a large control of terrorist organizations (For eg.:
Afghanistan, Syria, etc.)
 Can we explain the relationship of Britain with EU with the help of Austin’s theory?
 The decisions of the European Parliament are directly binding on the member
countries. A sovereign does not accept the authority of another sovereign. So
the sovereignty of the individual governments conflicts with that of the EU
parliament. Austin would've said that the law of the EU parliament is only
positive morality and not positive law. Either that or that these countries are
not sovereign.
 Does Austin’s theory help us understand why people obey law?
 Austin’s theory is not only limited to a democracy. It could be because of a
general fear or due to reverence, or their moral conviction or social solidarity.
 Austin does not make a qualitative distinction between sovereigns say, Kim
Jong Un and Nelson Mandela. This is a criticized aspect. A sovereign is
legitimate as per Austin because he is powerful.
 Austin’s theory does not differentiate between obeying a democratic ruler or a
dictator. Fear is not the sole reason for obeying laws. The theory can be
criticized on this aspect. Other reasons – ideological alignment, economics
aspects etc. People obeying the sovereign does not mean people consent to it.
Consent of people is irrelevant in Austin’s idea of law.
 Does Austin’s theory help us understand why a sovereign is a legitimate sovereign?
 He is legitimate because he is powerful.
 Mandela's legislations do not have to be tested upon morality or justness,
because he was elected due to the mass reverence he received from people.
 If legitimacy were to be linked with power, then we are no diff from the state
of nature. Austin is reinforcing 'might is right'. Might may come from fear or
reverence, but what matters is might.
  We formed the civil society so that the problems in the state of nature are
overcome. SO we've to scrutinize the legislations.
 Does Austin’s theory help us understand how a sovereign is legitimately replaced by
another sovereign? Yes, it does, but the manner is not acceptable.
 Yes. Succession through sovereignty. From Austin's POV, power is the
underlying factor. If the new one can overcome the old one, then it is
legitimate. This power can be gained by reverence of people or by
overthrowing. His suggestions are not suited to the civil society. Sovereign
cannot predict his successor in Austin’s theory.
 There is a pre-determined rule for the next sovereign then he is legitimate
sovereign. But even if there is pre-determined ruler, he can also be called
legitimate sovereign provided he can extract the habitual obedience. He can
justify military dictatorship.
 Is Austin’s theory of law descriptive or prescriptive?
 Descriptive. It describes a phenomenon. Austin tells what a law is and does
not prescribe what ought to be laws. Positivism is descriptive. Austin
describes how societies functions.
 Austin’s theory explain criminal laws in a better way than civil laws because
of the fear of sanction attached with it.
 Is he explaining what is law or is he prescribing what ought to be the law?
 “IS”. No moral convictions regarding what it should be.
 Does it describe the laws adequately?
 No. Constitutional limits on law making power are not law as per Austin.
 Judicial review of laws passed by legislature, not allowed as per Austin.
 International law - dualism- Vishakha guidelines from CEDAW
 Can definitions be called laws? Section 2 of most Acts is definition. These are
not laws as per Austin.
 More focus on criminal laws.
 The definition clauses etc. are not laws.
 It is not necessarily a command such as descriptive laws, declaratory laws,
definitional clauses, laws limiting powers of the government, etc. If it is
descriptive it must describe the entire bulk of law which Austin’s theory fails
to do.
 Austin’s theory is based on objectivity and clarity & the demerit of the theory
is that it can be used to justify illegitimate government. It sacrifices the idea of
justness or morality for objectivity.
 1927: The Indian Statutory Commission (Simon Commission), a group of 7 British Members
of Parliament, sent to India to study constitutional reforms in British India.
 30.10.1928: An all parties procession led by Lala Lajpat Rai, who died as a result of lathi
charge which was believed to be ordered by Mr. Scott, the Superintendent of Police.
 17.12.1928: Bhagat Singh killed Saunders by shooting him, mistaking him to be Mr. Scott.
 Bhagat Singh made a confessional statement
 On the basis of this Lahore Conspiracy case
 Sections 300, 121 (waging war against the GoI), 121A (conspiracy to wage war,
imprisonment for life), 122 (Collection of men, arms or ammunition [preparation],
imprisonment for life), 123 (Concealing).
 Verdict: sentenced to death by hanging.
 Was Bhagat Singh a criminal?
 Was the government legitimate?
 Was IPC law?
 Is Ajmal Kasab a criminal?
  Austin's model can be used for passing legal judgments. What about moral judgments?
 This is only useful for passing legal judgments. Since societies consent is not
involved in law-making as per Austin, the law is right. But that law cannot be used by
the society to build social and moral judgments. For the latter, you'll have to
assimilate some sort of societal consent into it.
 Since Austin says legitimacy is linked with power. Since it excludes society from the
law-making process, it cannot be used for moral judgments.
 In Austin's model, you are obliged to follow the command, but you don't feel an
obligation to follow it. Bhagat Singh was obliged to follow law, but he did not feel
obligated to follow law, therefore if he broke the law, he committed no moral wrong,
but he committed an illegal wrong.
 The word criminal is a moral connotation. The word law breaker is neutral. Austin’s
theory of law gives only one quality i.e. external aspect of law (illegal wrong), it does
not talk about morality. The external aspect is used by judges. Morality or internal
aspect of law is used by society, society is interested in determining the moral guilt of
a person.
 Problems in Command duty model
1) External internal aspect of law
Standard of legal/ Social judgment
Being obliged to follow/ having an obligation to follow.
2) Succession of sovereignty
3) Status of declaratory laws, repealing laws, definitions etc.
4) Limits on law making powers in modern constitutions.

THE GRUDGE INFORMERS CASE (Morality of Law by Lon Fuller)

 5 possible view under the particular circumstances. Leaves it for the readers to decide which of the 5
ways must be chosen.
 Purple shirt regime: political group which later became a political party who won election later.
 Election wasn’t free and fair. Oppressive rule by the purple shirts.
 Underground movement mounting up against the purple shirts as they were being harassed by people
with false identification paper.
 Secret and retrospective statutes passed.
 With time Purple shirts overthrown by democratic government.
 Recommendations of Deputies
 DEPUTY 1
 Positivist way: not look at quality/content of law which is the case here.
 Law is law, even if immoral/unjust, if made by competent authority, it must be treated
as valid.
 Nothing can be done as the acts reported were unlawful and sentence imposed were
according to the law of the land.
 Difference between ourselves and purple shirts is not about the government being
unlawful but it was the difference in ideologies. Fundamental difference between the
two philosophies: We permit and tolerate differences in viewpoint while they attempt
to impose their monolithic code on everyone
 No need of interference by government as, if we now seek to unscramble the act, the
statute void shall be doing what we condemn.
 Fallout of this: After the purple shirt regime is over and the new regime comes into
action: nothing can be done about the grudge informers, policemen, judges, etc.
 DEPUTY 2
  Absurd to call P.S. lawful govt. System so bad that it cannot be called a system at all.
Society was living without a legal system.
 A legal system presupposes laws that are known or can be known to those who would
be subject to them. It presupposes some uniformity of action, absence of lawless
power.
 Their acts cannot be called right or wrong if we consider that there was no legal
system
 State of nature was prevalent: no one can be punished for anything that was done.
 Legal system presupposes some uniformity of action and that like cases will be given
like treatment.
 Grudge informers did nothing unlawful and could not be punished. It was a state of
nature, a War of every man against every other man. Instead of a government of laws,
we had war of all against all. Act of the grudge informer were just one phase of that
war.
 No need of judicial conception in that phase
 What grudge informers did was neither lawful nor contrary to law for they lived not
under the regime of law but under one of anarchy and terror
 First (everything lawful) and second (no law at all) approach giving same results.
 DEPUTY 3
 Conclusion of first 2 confusing. It was not war of all against all at all. Normal human
life went on under the P.S. regime- marriages were conducted, goods were sold, wills
were drafted and executed. This life was attended by the usual dislocations-
automobile accidents, bankruptcies, unattended wills, defamatory misprints in
newspapers. Much of this normal life and most of these equally normal dislocations of
it were unaffected by the P.S ideology. The legal questions arising in this area were
handled by the courts just as they were formerly handled and as they are handled
today.
 It would create chaotic situation if we declare everything that had happened as
unlawful.
 Does not support not doing anything.
 It cannot be said that there was no law-marriages, births etc must all be considered
legitimate.
 Purple shirt party had some legal basis
 Party was unlawful in most of the cases; for eg. Grudge Informers Case.
 Wrong if everything is called unlawful.
 The P.S. philosophy intruded itself and perverted the administration of justice from its
normal aim and uses we must interfere with.
 People took advantage of law that was not fair to do away with their grudges.
 Need for intervention is there but the procedure cannot be recommended.
 Segregation between good and bad laws.
 The laws facilitating smooth functioning of the society must be given recognition
 Actions under good law should be protected and acts under bad law need to be
punished.
 DEPUTY 4
 Objected the idea of picking and choosing among the acts of the deposed regime. He
considered such an act as purple shirtism itself.
 Making a retrospective criminal legislation and declare certain acts of certain people
as unlawful and punish them. This was followed in the case of Nuremberg trials. It
should be a one-time legislation and not a habit.
 Only way to deal with the problem is to deal it with duly enacted law.
 Liking and disliking certain laws is purple shirtism itself.
  Need of special statute governing the problem.
 Process of studying the whole problem of the grudge informer: Finding relevant facts
and Draft a comprehensive law dealing with it.
 Identifying real offenders and Giving a definite legal meaning to “grudge”
 No twisting of old laws and furthermore provide penalties but not treating every
informer as murderer simply because his act led to their death.
[Ex post facto law again, what about uniformity]
 DEPUTY 5
 Found irony in what 4th deputy said- Speaks of putting end to the abuses of Purple
Shirtism, yet it proposes to do this by resorting to one of the most hated devices of the
P.S. regime, the ex post facto criminal statute.
 Based upon purpose of criminal law- revenge.
 Instinct of revenge: basic instinct in human beings; natural instinct.
 In state of nature revenge maybe disproportional, consistency of revenge maybe
absent, no time limit to what extent revenge can be taken.
 When we emerge from state of nature, the right to take revenge is lost. Now state will
take revenge on the people’s behalf as it will be consistent, uniform, etc.
 Criticises 4th deputy for retrospective application of law.
 Criminal law gives an instinct of revenge and which is correct application of law by
the purple shirts.
 Let the people handle the way they are handling the situation. Leave them alone and
instruct the public prosecutor to do the same, soon there will not be any problem.
 Eventually it is all about revenge; informers, judges and police did something wrong
and the society wants to take revenge. Let us not do anything about it and leave it to
the choice of people. People after sometime will be satisfied.
 In the process, certain innocent ones maybe injured but such a harm is necessary for
the greater good.
 CONCLUSION DRAWN BY MINISTER OF JUSTICE
 Favours 4th deputy’s recommendation.
 Guiding principle is natural justice.

HLA Hart’s The Concept of Law

 Hart says the purpose of law is not to create guidance but to make obligations. Hart says law is to be
understood as a rule not as a command as rule can create obligations but not command. In command
there is not other option than obeying. There is a difference between obliged and obligation, and
Austin’s model talks about only obliged. Hart’s model is based on rules, which emerges from society
by societal consent. It is a bottom to top model. To determine whether rules are made by society we
look into customs. Example – Sabrimala issue, it is an accepted rule by society that women should
not enter into the temple. Legally it is not wrong, but morally wrong according to Hart’s model. The
purpose of law is not to compel people but to make obligations and make them believe that this is the
right thing to do i.e. to get people’s conviction, which is possible only when law emerges from
society. State of nature- no legal system  Rudimentary system – a system governed by rules 
Advanced legal system –
 3 problems with rudimentary –
1. The problem of identification – identify one out of multiples variations of the rule, which will be
applicable on all. Example – 3 weeks credit in North India for merchants, 2 weeks in South India.
If merchants are dealing between north and south, which rule would apply ?
2. The problem of adjudication -
 3. The problem of change – no society is static. Societies are dynamic in nature, be it population,
technology etc.
 Hart says that every new authority would be legitimate because of the pre-existing rule in the society.
This rule will tell whether the new sovereign is legitimate or not. Thus the problem in Austin’s
model about the succession of sovereignty is solved.
 Two types of rules
1) Primary – human beings are required to do or abstain from certain actions, whether they wish to
or not. Duty conferring rules, they emerge from society, create obligations, created by consent.
2) Secondary – they provide that human beings may by doing or saying certain things introduce
new rules of the primary type, extinguish or modify old ones, or in various wats determine their
incidence or control their operations. Secondary rules solve the problem of the primary rules.
They confer power.
 Austin’s theory involves visualising law as something which is backed by a sovereign and command,
which can be used only by judges, has only external aspect, no internal aspect.
 Hart proposes that we should consider law as a rule and not a command.
 “There is difference between the assertion that someone was obliged to do something and the
assertion that he had an obligation to do it”.
 “The root cause of failure is that the elements out of which the theory was constructed, viz. the idea
of orders, obedience, habits, and threats, do not include, and cannot by their combination yield, the
idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law”.
 “A social rule has an ‘internal aspect’, in addition to the ‘external aspect’”.
 “There should be a critical reflective attitude to certain patterns of behaviour as a common standard,
and this should display itself in criticism…. demands for conformity, and in acknowledgement that
such criticism and demands are justified... these are crucial features which distinguish social rules
from group habits.”
 “Where there is such a rule, deviations are generally regarded as lapses or faults open to criticism,
and threatened deviations meet with pressure for conformity, though the forms
Such rules may be wholly customary in origin.
 “No rules, and so no rights or titles and hence no right or title to succeed just the facts that orders
were given and were habitually obeyed mere habits of obedience to orders given by one legislator
cannot confer on the new legislator any right to succeed and give orders in his place
 Under rules of one type (primary rules), people are required to do or abstain from certain actions,
whether they wish to or not.
 Rules of the other type (secondary rules) introduce new rules of the primary type, extinguish or
modify old ones, or in various ways determine their incidence or control their operations.
 Rules of the first type impose duties while the rules of the second type confer powers.
 Remedy for the uncertainty of the regime of the primary rules in the introduction of what we shall
call a “rule of recognition”. Wherever such a rule of recognition is accepted both private persons
and officials are provided with authoritative criteria for identifying primary rules of obligation. The
criteria for determining the law are multiple and commonly include a written constitution.
 The notion of a supreme criterion does not import any notion of legally unlimited legislative power...
the legislative competence of the ordinary legislature is limited by a constitution which contains no
amending power, or places some clauses outside the scope of that power.
 A constitution which effectively restricts the legislative powers of the supreme legislator in the
system imposes not the legal duties but legal disabilities. Limits here implies not the presence of duty
but absence of legal power. They vitally concern the courts, since they use such a rule as the criterion
of the validity of the purported legislative enactments coming before them.
 Even though people enact constitution, why is it not a primary rule? because it is power conferring.
 Difference between social and legal rules. Taking off your shoes before entering into a temple or
removing your hat before entering into a church is it a social or legal rule ? there may be no
 centrally organized system of punishments for breach of the rules; social pressure stop short of
physical sanctions. May be limited to verbal manifestations of disapproval or of appeals to the
individual’s respect for the rule. We may be inclined to classify the rules as part of the morality.
Conversely, when physical sanctions are prominent or usual among the forms of pressure, even
though these are neither closely defined nor administered by officials but are left to the community at
large, we shall be inclined to classify the rules as a primitive or rudimentary form of law.

SECONDARY RULES Power conferring

Rules of Adjudication
Rule of Recognition Solutions
Rules of Change
LEGAL

SYSTEM How to Change? Problems

How to Identify?
How to Adjudicate?

PRIMARY RULES
Duty Conferring

 Law as defined by Austin would not promote creation of obligations.

 He thought superiority meant being in a position where you can guide people. Law for him
equals giving guidance.
 Hart says if law is understood from the point of view of Austin, there would be no difference
between a terrorist and a ruler. People should be obliged to follow the law as per him.
 Law emerges from the society, and not granted by a human superior.
 Now these laws are to be understood in the form of customs and not judicial decisions.
 Law emerges from people.
 Functions to create duty confirming rules.
 Austin: obedience was what he expected while Hart promoted creation of obligation, consent
being an important factor.
 Consent creates responsibilities.
 Since primary laws are customary in nature, there will obviously be certain inconsistencies.
 PROBLEMS:
 To identify such rules that could be made available to everyone. [who will do this
now]
 How to deal with violations?
 Society might feel the rules will have to changed.
 Some authority to change and identify the rules is needed.
 How to identify this authority?
 We are thinking about a rule that shall confer power on some people. This conferring of
power cannot happen unless there is consensus.
 Secondary Rules:
 People with different customs and beliefs and thus we face 3 problems. Secondary rules solve
these problems. Secondary rule gives power to people to pass laws and legislations.
Generally, Constitutions are manifestations of secondary rules.
 Rule of Recognition: who will do it?
 Rule of Adjudication: what will you do?
 Rule of Change: change after the adjudication is done.
 Constitution acts as a wall between transforming the customs into rules. Constitution
basically comprises secondary rules.
 Question arises regarding whether Primary rules can distinguish between a moral/social rule and
legal rule. From where does law quality come in primary rules?
 Such rules maybe wholly customary in origin.
 Secondary rules help in determining which among the primary rules are legal rules or
moral/social rules.
 Conversely when physical sanctions are prominent or usual among the forms of pressure,
even though these are neither closely defined nor administered by officials but are left to the
community at large, we shall be inclined to classify the rules as a primitive or rudimentary
form of law… The rules supported by this serious pressure are thought important because
they are believed to be necessary to the maintenance of social life or some highly prized
feature of it…rules so obviously essential… are thought of in term of either obligation or
perhaps more often ‘duty’… these rules may, while benefiting others, conflict with what the
person who owes the duty may wish to do.
 In a pre-legal system, everyone has authority over everyone else and thus arise the 3 issues.
Therefore, a need is felt to have a central, uniform and consistent system. Authority has to be
conferred on a body of people.

 Example of Mohammed Nazibullah Ahmedzai.

 One way to determine the justness of a law is to see whether it is equally applicable to all.
 How primary rules become legal rules or acquire law quality?  Gravity of response of the society
makes the difference. Violent response in case of non-conformity.
 The violent reactions of the society are not only an act of enforcement of a social rule but at the same
time it is an act converting the rule from merely a ‘social’ rule to a ‘legal’ rule.
 Whether violence in enforcing a social rule is a lawful act or not.  if the violence is in accordance
with law, it is lawful.
 Here there is no pre-existing law giving validity to the violent actions. It is the act of violence itself
which is conferring law quality to a social rule.

WHY ARE CONSTITUTIONS VALID?

 To say that a general rule is valid is to recognise it as passing all the tests provided by the rule of
recognition and so as a rule of the system, there is no rule providing criteria for the assessment of its
own legal validity… No such question can arise as to the validity of the very rule of recognition
which provides the criteria, it can neither be valid nor invalid but is simply accepted as appropriate
for use in this way... Its existence is a matter of fact. (- Hart)
DISTINGUISHING BETWEEN A LEGAL SYSTEM AND AN ORGANIZED NETWORK OF
CRIMINALS
 Can we identify a legal system by merely looking at it?
1. The origin of rules, and
 2. The interrelation of rules of various types and various levels?
 From practical or procedural point of view it is okay but there are defects when we look at it
qualitatively.
CAN LAW HAVE ANY CONTENT?
Hart presumes that all human beings have a desire to live. For this, there has to be some minimum basic
quality in the laws that we make. Suppose there is a law like “every person in the street walking this way
will be killed”. This is against the presumption. Hence the minimum quality. This is called natural law
content. So there must be some qualitative dimension in the law. This is present in both law and morality.
This min content is called min content of natural law.
IS THERE ANY CONNECTION BETWEEN LAW AND MORALITY?
 If we agree on the presumption that in general men do desire to live.
 Some minimum content of natural law is required to be present in both – law as well as morality.
 Thus minimum content of natural laws in the interconnection between law and morality.
HOW TO DISCOVER NATURAL LAW AND WHAT SHALL BE THE NATURAL LAW?
 Method adopted by scholars like Plato, Aristotle, St Thomas Aquinas:
Use of “human reason”- observe the natural growth and you will know the natural law. They try to
super impose idea of order of nature on humans.
 Hart believes this is wrong method as what one is discovering by observing is only “descriptive
laws” and not “prescriptive laws”.
 We need to have prescriptive laws that remain valid even if broken. Descriptive laws are not like
that.
5 NATURAL FACTS THAT’S COMMON:
 Human vulnerability – there are times when we are vulnerable to many external dangers. Human
existence is contingent upon many things that exist in nature.
 Approximate equality – on a large scale, human beings are all equal to each other. Hence the AE.
 Limited Altruism – by nature, all of us have some sense of wanting to sacrifice for another. It is
not unlimited.
 Limited resources – first resource is your body, time etc. These are limited.
 Limited understanding and limited strength of will – we can never understand completely the
working of the universe.

NATURAL FACTS (Law of Nature)

Human Vulnerability

Approximate Equality

Limited Altruism

Limited Resources

Limited Understanding and Strength of Will

The natural necessity of having:

A system of multiple cooperation (sufficient protection for person, property and

promises unless we coop and decide among each other to not do harm to other
 THE DEVELOPMENT OF LEGAL AND MORAL
PRINCIPLES

INTERCONNECTION
LAWS LIKE HUMAN VULNERABILITY MORALS LIKE
 Criminal Law  APPROXIMATE  Principles of Christianity:
EQUALITY Thou shall not kill, Love
 Property Law thy neighbour, etc
 LIMITED ALTRUISM  Principles of Islam: Don’t
 Business Laws let your focus in this life
 LIMITED RESOURCES be to amass worldly gain
 Personal Laws, etc. and God will love you;
 LIMITED Person cannot be a
UNDERSTANDING complete believer, unless
AND STRENGHTH OF he loves for his brother
WILL what he loves for himself;
Part of a person’s good
observance of Islam is to
leave aside what does not
concern him, etc.
 Principles of Buddhism:
Noble 8-fld path of Right
Intention, Right Speech,
Right Action, Right
Livelihood, etc.

Because of these limitations, we form a system of cooperation. That system includes a system of sanctions.
 A system of mutual cooperation – unless we coop and decide among each other to not do harm to
other members of soc, our basic goal to live and sustain will not be met.
 A system of sanctions.
 Some minimum protection for persons, property and promises.
These systems that develop due the demand, are of various types. They are not only legal systems. They can
also be moral systems. Legal and moral principles emerge.
Therefore, legal and moral rules converge to give meaning to the 5 basic common principles. Law and
morals arise from the same basic needs for human survival – they emerge from the same route – a desire to
have cooperation.
Once the legal system is developed, the connection between law and morals cease to exist. For determining
the validity of law, morality cannot play a role. Even if the law appears to be immoral, it does not matter and
what we are concerned with is the requirement of the system of law. We do not have to take care of
requirements outside the system.
After the development of legal SYSTEMS, what is the role of morality then? The role of morality is like a
yardstick to judge the quality of a system and not validity. Function of morality is to test the quality of law.
Hart says laws can have any content and there is a connection between law and morality.
HART’S THEORY SUMMARY
1. Explains why and when a rule may be called a law.
2. Explains why societies adopt constitution.
3. Being a descriptive theory, does not provide any standard of judgement for judging the quality of
Constitutions.
4. Fails to lay down any operating standards for the State. Thus, even in the absence of- respect for
human rights, protection of freedoms, equality, etc. an entity may be called a State. And the rules
passing the Rule of Recognition may be called a Law.
5. Relies on the idea of consent for the justification of primary as well as secondary rules.
6. Explains the status of “international law”; also explains why a ‘rule of recognition’ (and generally
secondary rules) may never emerge among the subjects of international law. (the content is such that
it creates obligations; two ways: (1) looking at the content and whether it creates obligations or not
(2) whether centrally organized sanction are there or not; There is no international legal system but
the international law is law; In the recent time, emergence of international legal system- for example:
WTO judgements with binding value.)
7. Suggests how the cases like Nuremberg trials must be dealt with.
8. Tells that there is a connection between law and morality, but the law may have any content.
Is International law, law? (As per Hart)
 To say that something is law, we look at the content and format. If we rely on content, we
see what the law does, and is the same done in the context of int’l law. Law creates
obligations. Even in int’l scenario, int’l law creates obligations on the states. It creates
obligations through consent, i.e. like bilateral/multilateral treaties. Format; a formal structure
that makes law, implements law, and acts as a guardian of those laws. In a municipal
structure there is a law making, implementing and adjudicatory body. Such a format is absent
in int’l law. But then again, format approach shouldn’t be adopted in int’l scenario as this is
applicable only in municipal legal systems. This is not desirable in int’l scenario.
How would Hart have judged Nuremberg trials?
Law and morality connection?
 Law and morality emerge from the need to survive coupled with certain truisms.
What is the internal/external part of Harts theory?
 Hart is a positivist. But he doesn’t like Austinian theory. He feels law also has a social
function to hold people morally guilty rather than just serving as a judicial function. If a
person steals a pen, people will believe that the person is morally guilty only if they have
faith in law. This is the internal aspect, used by the society to judge moral guilt. The internal
aspect comes from the fact that people are the ones who assent to primary rules.
Hart’s theory – Obligation + consent.
Austin’s model id directing people to do something or refrain from doing something irrespective of
what people think. It is command model top to bottom.
Hart says this is like state of nature, the more powerful commands others. Emerging from state of
nature to a civil society means looking for obligations, which is created by a legal system. It creates
two types of rules primary and secondary both are made by consent. Constitution are examples of
secondary rules, which is because they solve the problems in primary rules. Different societies
provide different solutions that is why different constitutions are different.
Problem of circularity –
There may be no centrally organized system of punishments for breach of the rules; the social
pressure may take only the form of a general diffused hostile or critical reaction which may stop
short of physical sanctions. It may be limited to verbal manifestations of disapproval or of appeals to
the individuals respect for the rule violated; it may depend heavily on the operation of feelings of
shame, remorse and guilt. When the pressure is of this last mentioned kind we may be inclined to
classify the rules as part of the morality of the social group and obligation.
Conversely, when physical sanctions are prominent or usual among the forms of pressure, even
though these are neither closely defined nor administered by officials by are left to the community at
large, we shall be inclined to classify the rules as primitive or rudimentary form of law. The rules
supported by this serious pressure are thought important because they are believed to be necessary to
the maintenance of social life or some highly prized feature of it… rules so obviously essential are
thought of in term of either ‘obligation’ or perhaps more often duty these rules may, while benefiting
others, conflict with what the person who owes the duty may wish to do.
Who comes first, the latter cannot define prior.
When hart talks about validity of law, he relies on the source which is the root cause of the problem.
Both hart and Austin have same problem. Hart’s explanation for existence of law is a fact based.
Law must create obligations, reaction of society essential for determining legal or moral rules.
Punishment not just enforces laws but also creates law.
You cannot counterfeit currency – law
Consequences for counterfeiting – enforcement of law not actually the law.

Differences between social and legal rule ?

1) Importance in the eyes of society – all moral rules are supposed to be important by the society,
whereas legal rules are not considered to be important. Almost everyone in the society has an
opinion about moral rule. Example- abortion or adoption by a single woman.
2) Legal rules can be changed overnight but not moral rules. Moral rules do not have sudden
changes they change overtime, gradually.
3) Voluntary character – if you violate a moral rule and you can prove that did not intend to do it,
you are not morally blamed or guilty. Whereas in legal rules, except in cases where mens rea is
an essential, intention does not matter.
4) Type of pressure that the system exerts in cases of violations. Different rules have different
pressure. For legal rules – the pressure is fear example - theft; in moral rules – appeal in moral
conscious, appeal is to something that the community values. It is values to all. Example – lying
or not keeping promises.
Relation between law and morality ?
If there any connection ? Is there any law which is devoid of morality ?
The answer to both is YES.
As a society we need to coexist and we want to continue living. So, no matter what we are talking
about minimum content of natural law- the intersection between law and morality. What is MCNL ?
The tradition method of discovery MCNL is faulty because the method is scientific, based on
observation and inferences. The validity of law should remain independent of behaviour of the
subjects of law if it does not then anybody deviates, the law becomes void.
 Scholars relied on human reasoning, but Hart disregarded it.
To the solve the problem, Hart talks about 5 certain truths –
1) Human vulnerability – every human being is vulnerable
2) Approximate equality – every human being is physically approximately equal to each other.
3) Limited altruism – no human being has zero or extremely high level of altruism.
4) Limited resources – we have limited land, extractions are limited and even the human energy is
limited.
5) Limited understanding and the strength of will
Because of these 5 truisms we need to develop a system of cooperation and in that system 3 things
are to be done –
1) System of mutual cooperation
2) System of sanctions
3) System of protection of person, promises and properties.
All these 3 things are done by both moral as well as legal systems. This means these are MCNL.
Example – bible says love thy neighbour, law says negligence is a wrong – you owe a duty of care
towards your neighbours. Role of the sanctions is to compel people to comply with the rules.
Law and morality emerge from the same reason, the root is the same.
The identification of law is based on rule of recognition, so law can be devoid of morality. After law
and morality develop they do not have a connections.
*morals are shared understanding in the society about the goods and the bads.
Traditional natural law view – if it is too iniquitous to be obeyed then it is not a law.
Hart’s view – it is law but too iniquitous to be obeyed. Morality should serve as an external standard
for judging law. Value of morality shall be retained, to maintain a distinction between good law and
bad law and help in understanding complex moral issues clearly.
Issues of –
 Obeying law
 Submitting to the punishments under a bad law
 Punishing a person who was implementing the bad law

Are separate and distinct from each other ( these issues get mixed up and the law is summarily
rejected in traditional natural law view.
 Also cases like Nuremberg trial should have been proceeded on different philosophical basis,
It should have been accepted that we are also doing something wring in making retroactive
criminal law.
If you don’t believe that a bad law is law, there is no scope for improvement.
London charter is a law because it was necessity at that time. A lawmaker should be aware of what he is
doing.