JURISPRUDENCE ENDSEMS NOTES

SOCIAL CONTRACT THEORISTS [NATURAL LAW]

1. THOMAS HOBBES
2. JOHN LOCKE
3. JEAN JACQUES ROUSSEAU
4. IMMANUEL KANT

POSITIVE LAW THEORISTS

1. JOHN AUSTIN
2. JEREMY BENTHAM
3. HANS KELSEN
4. H L A HART

AMERICAN REALISM

1. OLIVER WENDALL HOLMES

2. JEROME FRANK
3. LEVELLYN
4. GRAY

SOCIOLOGICAL SCHOOL

1. ROSCOE POUND

HISTORICAL SCHOOL

1. SAVIGNY
2. SIR HENRY MAINE

LEGAL CONCEPTS

1. LEGAL RIGHT
2. POSSESSION
JEREMY BENTHAM

 We are all governed by two sovereign masters – Pleasure and Pain (nature has instituted
this).
 The principle of utility is based on the greatest happiness of the greatest
number(Examples include Public Discussion and Freedom of Press).
 The sovereign masters determine what we ought to do. They govern us in all we do, all
we say and all we think. They are the ones who regulate and control us and our actions.
HANS KELSEN (1881-1973)

 Contribution to the “science of law” (pure theory or normative theory).

 The concept of natural law was rejected (sacred rights).
 Law is a system of “coercion” imposing “norms”.
 The place of justice in the pure theory.
LEGAL RIGHT

HOHFELDIAN ANALYSIS OF LEGAL RIGHT

 Legal right, in a general sense, entitles certain benefits or advantages.

 Every such concept of right is related to the concept of duty – which is a jural correlative
(vertical correlative).
 Two more relations are given:
1. Horizontal relations – Contradictions of Correlatives
2. Diagonal Symbols – Jural Contradictories
 While a right is accrued to a person, a corresponding duty is imposed on another.\
 For liberty, Hohfeld could not find a proper name for the jural correlative and thus called
it as “No Right”.
 Liberty (also called as Privilege) refers to the act of a person according to his/her will,
without any interference by law or person, in a way as to not infringe upon the liberty of
another.
For instance, in the case of the Glouchester Grammar School, a rival school was set up
which resulted in the loss to the other school.
 Power refers to the ability of a person to change the duties, obligations, rights and
responsibilities of another person.
 As a result, the other is under liability to abide by it.
Example: A judge exercising power while giving a decree or judgement which results in
the change of rights of a decree holder or a judgement debtor.
 Power can be of two types:
1. Public Power – Exercised by an agent or officer of the State (Judges, for example)
2. Private Power – The power with individuals (power to sell property, power to gift
property to another, power to make a testament or will, etc.)
 In this, it is important to understand the distinction between authority and capacity.
Authority is conferred by the State and Capacity is given by oneself.
 It is important to understand the “capacity” to exercise “authority”.
 Immunity refers to the advantage or benefit given to a person. As a result, one is disabled
from exercising any power against a person enjoying immunity. For instance, diplomatic
immunity, immunities given to Members of the Parliament, Governors and the President,
Immunity of the sovereign, etc.
 Liberty is something that a person does innocently on his or her own. Duty refers to what
another person ought to do for me as the other has a right. Power is something that a
person can do effectively. Immunity is what someone else cannot do effectively to
him/her by virtue of that his/her position.
 The diagonal and horizontal relations are ambiguous, resulting in complications.
 There are two theories with respect to Jural Correlatives:
1. Salmond – He said that all rights and duties are co-existent and they cannot exist
independently of each other. One cannot exist absolutely either.
2. Austin – He believed that there existed some duties which are absolute in nature, such
as the duty not to commit suicide, the duty not to be intoxicated and the duty towards
god.
POSSESSION

 Corpus Possessionis – Element of control (physical control)

 Animus Possendendi– Element of intention (intention to possess)
 Possession is the relation between a man and a thing.
 Physicalcontrol refers to the power to use and hold.
 Possession is often referred to as the “9 points” in law. It is assumed that when you are in
possession, you hold the title to such property (basic presumption). This can be seen in
the Specific Relief Act.
 Possession is a criminal aid. Even if you are the true owner, it must be claimed by way of
law and not by force.
 Possession can be of two types:
1. Possession in fact – Even with a person who has committed theft.
2. Possession in law – A person who is entitled to the property (one who has the title of
that property).
JOHN AUSTIN

 Positive Law
 Classification of law
 Law by Positive morality
 Tacit command
 CRITICISM

Austin’s positive theory of law: John Austin’s theory is called ANALYTICAL THEORY

 Assumes the existence of a developed legal systems and then analysis the basic legal
principles, to classify them and show their relations to one another. Systematic
analysis of legal concepts
 Substituted ideals of justice with law as a command of the sovereign. Excludes norms
and values.
 He defined law as a rule laid down for the guidance of an intelligent being by an
intelligent being who has power over him.
 Law is strictly divorced from justice.Tries to understand the structure of the legal
system and does not focus on justice
 Habitual Practice (Gunman Theory): Austin propagated that habitually following law
is good for us. However, this idea was opposed by Hart. The executive almost stood
above the rule of law during emergency

CLASSIFICATION OF LAW

Austin divided law into law properly so called and Law improperly so called.

1. Law improperly so called:

a) Law by Analogy: Law based on opinion. Product ofsentiment or opinion. He gave
the example that international law is a law improperly so called. Constitutional Law
falls within this category according to Austin. If law is not given by political
sovereign, one is not free to obey the law
b) Law by metaphor: Austin targeted Natural Law by calling it a law by metaphor.
Hobbes used Leviathan as a metaphor. He believed that the principles of morality
were also laws by metaphor. They had no command of the sovereign

2. Law properly so called:

 a) Laws of God set to Human Creatures: Scriptures or God’s Law. Various stages of a
human’s life that cannot be escaped. However, it is not law strictly so called as it fails
to consider societal changes. It is positive morality.
b) Laws set by men to men: Austin believed that Jurisprudence is concerned with only
set by men for men. Law is the command of the political superior to whom the
majorityof members of a society are in habit of obedience and which is enforced by
threat of sanctions. Law which fit this definition are laws strictly so called.

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LAW BY POSITIVE MORALITY

 Morality is neutral for analytical positivism. Morality is not a deciding factor.

Positivism deals with “is and not “ought” preposition
 Law is independent and should not be mixed with natural rights’
 Positive law states that one should not believe in any ideology as it will lead to
anarchy and conservatism.

Positive law has 4 elements- command, sanction, duty and sovereignty

TACIT COMMAND

 What the sovereign permits, he impliedly or tacitly commands.

 Judges were appointed by the sovereign and judge made laws were tacit commands.
CRITICISMS.

 Linguistic Looseness
 Absolute sovereign is rare
 Confusion of sovereignty
 Narrowness of Theory
 Coercion alone does not explain law
 Social habit and social rule

ADM Jabalpur and A.K. Gopalan are cases which exhibit Austin’s theory

Linguistic Looseness
“Law of command” reflects the looseness of the language. Law can be created in several
ways. Law just by way of command indicates a restrictive approach. He also neglected
opinion, which is important to a body of law in a democracy.

Absolute Sovereignty is rare

Austin postulated the presence of an Absolute Sovereign which is rare (exception: North
Korea). He does not elaborate on whether such a sovereign would do good or bad.
Sometimes, due to absolute necessity the sovereign is bound to act against the fetters of law.

Confusion of Sovereignty
Sometimes there might be a tussle as to which organ of the Government forms the true
sovereign. The Judiciary also assumes the role of setting laws (eg.Vishaka Judgement, anti-
ragging guidelines).
De jure v. De facto: Austin only address the de jure sovereign, and neglected the de facto
sovereign. Eg: a woman is elected as sarpanch. She is the de jure head, but her husband can
be considered the de facto head.
The Madras High Court judgement on Toll Collectors (abuse of government officials): there
should be a separate track for MPs and MLAs. The court might assume the role of the
sovereign as legislation passed can be challenged.

Narrowness of theory
Austin’s theory does not include customs and practices which form an important part of the
body of law.
Coercion/Sanction alone does not explain law

Austin’s Gunman theory is not applicable in criminal law as it includes an element of

coercion and its applicability in civil or contract law is minimal.

Social Habit and Social Rule

HLA Harts Distinction:
Social Habit: external aspect; followed by people because it has become a way of life.
Social Rule: Internal Aspect: belief that rule must be followed as a law and non-compliance
of the same is not in the interest of the general public.

As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by distinguishing law from other
concepts that are similar:

 “Commands” involve an expressed wish that something be done, combined with a

willingness and ability to impose “an evil” if that wish is not complied with.
 Rules are general commands (applying generally to a class), as contrasted with
specific or individual commands (“drink wine today” or “John Major must drink
wine”).
 Positive law consists of those commands laid down by a sovereign (or its agents), to
be contrasted to other law-givers, like God’s general commands, and the general
commands of an employer to an employee.
 The “sovereign” is defined as a person (or determinate body of persons) who receives
habitual obedience from the bulk of the population, but who does not habitually obey
any other (earthly) person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.
 Positive law should also be contrasted with “laws by a close analogy” (which includes
positive morality, laws of honor, international law, customary law, and constitutional
law) and “laws by remote analogy” (e.g., the laws of physics). 
HANS KELSEN (1881–1973)

 His contribution to the science of law (Pure law or normative theory)

 Natural law was rejected (sacred rights)
 Law is a system of “coercion” imposing “norms”
 The place of justice in the pure theory
 How “norms” arise
 A delict (norms addressed to officials)
 The hierarchy of norms
 The validity of norms
 Concretization of norms
 The Grundnorm
 Criticisms

- The object of his theory was to assist in an understanding of positive law in general. His
contribution was purely to the science of law. It explains what law is, and not what it ought to
be. It constitutes a rigorous enquiry based upon a strict methodology. He said that there is
no concept such as sacred rights or rights implanted by God.It is called pure theory because it
is free from all ethical or political judgements concerning values.
- He said that law is a system of coercion imposing norms which are laid down by human acts
in accordance with the constitution the validity of which is presupposed if it is on the whole
“efficacious” [Presupposition and efficacy].
- Kelsen views justice as an irrational ideal. It represents the value-preferences of individuals.
Justice in this theory can be seen in the maintenance of positive order by the application of
appropriate general rules. In relation to the analysis of the structure of law, the concept of
justice has no place at all.
- A norm derives its validity or authority from another norm. the one from which validity is
derived is higher.Grundnorm (Grund means fundamental in German) is the highest from
which all norms are derived [e.g. the Constitution or the people as the grundnorm]. Thus,
there exists a hierarchy of norms (a step-structure). The norms become “more concrete” and
less abstract as one descends the levels within the hierarchy, the final (downward) level being
reached.
- The principle of legitimacy is restricted by the principle of effectiveness. The norms of the
legal order must be accepted by and large within the community. In case of a grundnorm,
there must be appropriate general support for it.
- Law is a coercive order of human behavior. Law may be thought of in terms of “norms
addressed to officials” (such as judges). Such norms may be interpreted as rules prescriptive
of conduct to be pursued in certain specified circumstances.

The State v. Dosso (1958)

Uganda v. Commissioner of Prisons (1966)
Madzimbamuto v. Lardner Burke (1968)
Mitchell v. Director of Public Prosecutions (1986)
In this case, it was held that a revolutionary Government is illegal, unless it complies with the
following conditions:
1. A successful revolution must have taken place (i.e. a Government is firmly established).
2. The government is in effective control, i.e., there is, by and large, conformity with its
mandates.
3. Such conformity is due to popular support and not by mere submission to coercion.
4. The regime must not be oppressive or undemocratic.

Criticisms
1. Pure theory is impossible – historical references in law are also important.
2. Coercion has been given too much importance.
3. Grund norm is not real.
4. The theory fails to recognize the source of law.
5. Justice is excluded from the consideration of law in his theory.
6. It is very difficult to test the “minimum support” for a basic norm without enquiry into
political and social facts (contradictory methodology).
H L A HART (1907–1992)

 Fundamental questions of Hart – concept of law.

 Features of positivism according to Hart
 Soft positivism – minimum content of natural law
1. Human vulnerability
2. Approximate equality
3. Limited altruism
4. Limited resources
5. Limited understanding
 Law is the union of rules – Primary rules and Secondary rules

- The most prominent general feature of law at all times and all places is that its existences
means that certain kinds of human conduct are no longer optional, but in some sense
obligatory. Legal institutions and other phenomena related to the law must be studied
precisely as they are. Law is best defined by investigating its formal features rather than
the precise and detailed nature of its content. The concept of “legal validity” is to be
determined by reference to the source of law within the legal system, not necessarily by
its content. The essence of legal obligation is to be found in the phenomenon of a case
covered by a law which is widely recognized as being valid.
- Law ought to be studied, in general, as “value-neutral”, so that, for the purposes of
jurisprudential investigation, it should be kept apart from questions of morality.
- Law is a social phenomenon and its study involves recognition of the “characteristics of
the human condition”.
- There is a need within society for a system of rules designed to protect “persons, property
and promises”. It is from the analysis of the features and interrelationships of these rules
that the essence of a legal system emerges for examination. Both primary and secondary
rules are necessary for the working of a legal system.
- Two circumstances must be present before a legal system comes into being in a
community:
1. A system of “valid obligation rules” which are generally obeyed by most members.
2. Persons who administer the affairs of the community.
- Social Habits may be exemplified by the phenomenon of members of a group of friends
who visit the theatre every Friday evening. It 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 will attract criticism.
- Social Rules are of much greater significance in the analysis of law. When a social rule is
broken, criticism will be the result, because fault has been committed. Existence of social
rules testifies to their acceptance by a social group as a whole. Awareness of a social rule
and support for its significance and acceptance within a group constitute the internal
aspects of the rule.
- 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 internalaspects are very important as they involve a critical, reflective attitude to
certain patterns of behavior and a common standard.
- Social rules can be: Social conventions (appropriate behavior in a religious place) or
Obligations that are essential for a community’s life (prohibition of theft).
- There are two different types of legal rules: Primary and Secondary Rules. It is the union
of the primary and secondary rules that constitute the “law”.
- Primary Rules of obligation indicate what must or must not be done in pursuance of an
obligation (operation of criminal law). E.g.: Road Traffic Rules, Sexual Offences Act.
- Primary rules alone will not suffice. The rules would have to contain restrictions – on the
free use of violence, theft and deception, to which humans are tempted.
- The defects that would be inherent in a system containing only primary rules are:
1. The defect of uncertainty
There could be a set of separate standards. There would be no procedures for settling
doubts as to the meaning and scope of the rules and no authoritative texts.
2. The defect of static rules
Static nature of primary rules would be a problem. Change would be slow. It would
be very difficult to adapt to changes.
3. The defect of inefficiency of the diffuse social pressure
Lack of agency which is empowered to ascertain a rule and when it has been violated
would be a serious defect. Time would be wasted in unorganized attempts to
apprehend offenders.
- The introduction of secondary ruleswould remedy the defects with a system of only
primary rules. They will act as supplements. They will allow the members of the
 community to introduce new types of primary rules, modify the old ones and control the
operation and effects of the primary rules.
- The rule of recognition, which would be a secondary rule, would acknowledge the
document of reference and would remove the doubts as to the existence of a certain
primary rule. It is the ultimate rule of a legal system.
- The rules of change will empower persons to make changes in the legal positions by
abolishing old rules and introducing new primary rules [ examples include Wills Act of
1837 (making changes in the testament of oneself),law of contract (helps in establishing
a relationship between persons) and Law of Property Act of 1925(changes in
relationship of vendor and purchaser)].
- If a legal system is to function adequately, then the mass of citizens within the community
must give general obedience to its rules and should accept their validity in the light of the
rule of recognition.
ROSCOE POUND
- The aim of law as the balancing of the security of society and the individual life.
- Law is a social institution created and designed to satisfy human (individual and social)
wants. The essential feature of legal order was the securing and protection of a variety of
interests.
- Interest is defined as a demand or desire or expectation which human beings either
individually or in groups or associations or relations, seek to satisfy. It is the balancing of
interests – individual, public, social – which constitutes the principal problem fro legislators
and jurists.
- Individual interests include Personality, domestic relations and Substance.
- Social interests include: General security (peace and order), security of social
institutions (domestic, religious, political and economic), general morals, conservation of
social resources, general progress, etc.
- The appropriate “balancing process” is related to the problems of eliminating friction and
precluding waste un human enjoyment of the goods of existence. It is a kind of social
engineering.
- Interests must be balanced “fairly”. Thus, individual interest ought not to be weighed
against public interest.
- The process of balancing may necessitate reference to the following forms of law:
1. Rules – Attachment of a definite, detailed legal consequence to a definite, detailed
statement of facts.
2. Principles – Authoritative starting points for legal reasoning.
3. Conceptions – Authoritative categories to which cases or situations are referred, as a
consequence of which principles ad standards become applicable.
4. Standards – General limits of permissible conduct to be applies according to the
circumstances of each case.
- New interest will emerge as and when society advances and changes. Recognition of a new
interest will involve its being tested by reference to the “jural postulates” of a civilized
society.
- Pound’s jural postulates believe that the citizens of a civilized society are entitles to assume:
 That others will commit no intentional aggression upon them;
 That they may control for beneficial purposes what they have discovered, created and
acquired;
 That promises will be carried out in good faith and that unreasonable and unjust
enrichment will be prevented as far as possible;
 That persons engaged in a course of conduct will act with due care so as to not create
unreasonable risk of injury to others.
 That they shall be entitled to assume the burdens incident to social life shall be borne by
society;
 That, as a minimum matter, “a standard human life” shall be assured to every citizen.