Jurisprudence (English) - 2020

Pro|Studies 2020 Intermediate Year
First compiled and distributed in Sri Lanka in 2017 by the Pro|Studies

No 244, Hulftsdorp Street, Colombo 12
Modified/updated and distributed by the Law Students’ Union of Sri Lanka 2019
No. 244, Hulftsdorp Street, Colombo 12
Text and illustration copyright © Prostudies 2018/2019/2020
The Pro|Studies and the Pro|Studies logo and associate logos are trademarks of Pro|Studies
All rights reserved

No part of this publication may be reproduced or transmitted by any means, electronic, mechanical,
photocopying or otherwise, without the prior permission of the publisher
A PDF document of this inscription will be available on Pro|Studies mobile app/ website/facebook page
This document is for the sole purpose of assisting students in their academic activities.
Content of this document might consist of parts of Acts, Statutes, Ordinance, Text Books, News Articles,
Lecture Presentations & Judgments. Due credit is given at such instances.
For free distribution
www.prostudies.lk pg. 2
Pro|Studies 2020 Education Committee
Co-Heads
Yasith De Costa Brammadha Sivapathesundaram
Senior Committee
Ashani Dilakshi Ashwini Prabakaran

Asha Wanigasinghe Chamara Karuna rathne
Charith De Silva Damith Chandika
Dulanji Namalika Dilhara Th athsarani
Ina Sajeer Kavindi Weerasekara

Kevin Nambuge Kishanth Kr ishnaperumal
Laksahani Himashi Madhu Ushani
Neranjana Gajasinghe Natasha Fonseka
Praneetha Bandaranayake Rathushini Shanmugadhas
Rusini Anuththara Sawani Yapa
Shashikala Prabani Shermila Mu thalif
Thanuka Perera Thitumatuh an Amirthalingam
Thushara Saman
Junior Committee
Achala Tharaka Achini M alsha Perera

Aishwarya Sachinthani Benislos Thushan
Bishran Iqbal Chath urika Perera

Dulya Wellawa Eric De Silva
Gayan Sanjaya Hasala Gunathilake
Hasini Hondamulla Kalpa Jeewantha
MA Rauff Navodya Chathumini

Oshani Wijesekara Pramod Perera
Rajasekar Logithan Senel Rath nayake
Shakthinathan Shavinda Herath
Shabishanth Mohan Tharindu Liyanage

T. Dayanandaraja Theekshan a Ranaweera
Thilini Sanjana Umesha Madiwaka
Complied by – Rusini Anuththara (Final Year)
This study material is based on,
▪ ‘Understanding Conceptions of Law’ - H.J.F. Silva

▪ ‘Jurisprudence’ (second edition) – Suri Ratnapala
▪ Lecture slides of:
- Mr. Seevali Amitirigala PC
- Mr. Chinthaka Fernando AAL
- Miss Thiruni Marambe AAL
▪ Online resources
This document is for the sole purpose of assisting students in their academic activities and only for
free distribution.
Due credit should be given to the respective authors.
CONTENT
1. Natural Law
2. Positivism
3. Kelsen’s Pure Theory of Law
4. Marxism
5. Feminism
6. Hohfeld’s Rights Analysis
7. Law and Morality
8. Dworkin’s Theory of Law
9. Sociological School of Jurisprudence
10. Critical Legal Studies and Realism
11. Public Interest Litigation
12. Historical and Anthropological School of Jurisprudence
13. Theories of Punishment
01. NATURAL LAW
The idea of a higher law that positive human law must not violate has a long and continuous history in both
Western and Eastern thinking. It is found in Greek, Judeo-Christian, Hindu and even in Islamic philosophy. In our
age, basic human rights are posited as universal higher norms binding on nation-states. In Western philosophy
such higher moral law is commonly known as ‘natural law’. Natural law is so called because it is believed to exist
independently of all human will. It is natural in the sense that it is not humanly created. Natural law theories are
theories about the relation between the moral natural law and positive human law. Natural law theories vary
in aims and content but they share one central idea; that there’s a kind of higher (non-human) law, based on
morality, against which the moral or legal force of human law can be measured. So this theory seeks to explain
law as a phenomenon which is based upon and which ought to approximate to some higher law contained in
certain principles of morality. These principles find their source in either religion or reason.
The terms ‘law of nature’, ‘natural law’ and ‘natural right’ signify distinct concepts though they have important
connections. At the heart of all natural law theory is the belief that there are universal moral laws that human
law may not offend without losing its legal or moral force. Natural law is Just Law, and just law is that which is
in harmony with the universal laws of nature. So the deep thinking of this philosophy is justice and fairness that
are discoverable through human reason. According to these, law makers have moral obligations not to make
laws in violation of natural law or in other words man-made law should conform to these higher principles of
natural law. The natural law theory cannot leave this question to the subjective moral judgment of each person.
Natural law sets conditions for life on earth and these conditions can be destroyed by natural causes or human
actions. For example there’s natural right for a person to live and sometimes there’s judicial execution to punish
people. Some people think that abortion should not be allowed according to their moral values though in some
states it has legal recognition. So theories of natural law also differ with respect to their effect on human actors.
Common features of this philosophy are,

▪ Every human being has an idea of what is wrong or right or just and fair
▪ What is right or just, is the higher law
▪ The higher law is discoverable by reason
Natural law theory is based on value judgments which emanate from some absolute source and which are in
accordance with nature and reason. These value judgments express objectively ascertainable principles which
govern the essential nature of person and of the universe. The principles of natural law are immutable, eternally
valid and can be grasped by the proper employment of human reason. These principles are universal and when
grasped they must overrule all positive law, which will not be law unless it confirms to natural law.
❖ Theological Theory of Natural Law
Philosophers look at nature in different ways. According to one view nature has no design, plan or purpose. In
sharp contrast, the theological view holds that everything happens for a purpose. It means that every object
and life form, including human beings has a purpose in existing. But there cannot be a purpose without someone
or something determining the purpose. Therefore theology inevitably leads to the conclusion that the universe
and everything within it functions according to a divine or supernatural plan. In other words, the universe and
human society is under the governance of some ‘deity’ who has laid down constant principles which must
eternally control all of creations. These principles constitute a higher law which is universal, that is common to
all societies and immutable that us it cannot be changed through human agency. This higher law can be grasped
through revelation as in the scriptures or through the use of reason. All human arrangements, including law,
must conform as far as is possible to these principles.
❖ Secular Theory of Natural Law
Natural law theories have two common themes which are; human beings have natural needs and human beings
are also social animals by nature. So they need protection from physical harm and they must have material
resources to live and they need freedom to pursue their chosen life ends. And human beings survive and prosper
in cooperative social groups. This means that individuals must respect natural needs of other individuals. Hence
there must be a set of laws that secure the basic human rights that allow Persons to survive and pursue their
individual life ends without harming others. So these secular theories proceed from regarding human beings as
having a certain conception of morality which is intrinsic to them and to their nature. This morality which
sometimes manifests itself in the form of conscience is made up of basic principles which form a basis for proper
human action. These principles are discoverable through the application of ‘Reason’ and they ought to form the
proper basis for law making. This school theorizes about the uniform and fixed rules of nature, particularly
human nature, to identify moral & ethical norms. This is influenced by rational empiricism of the 17 th and 18th
century thinkers. Secular natural law elevates the capacity of the human intellect over the spiritual authority of
religion. So to this extent they constitute a higher law to which all human laws must strive to conform.
⮚ Historical Development of Natural Law Theory

It is possible to trace natural laws thinking from the most primitive stages of social development when for many
simple societies there was at some stage very little distinction made between the religious and secular, the
spiritual and the physical. Many early communities all over the world tended to see a link between the natural
world of physical matter and the spiritual word of Gods and spirits. The spiritual world was seen as being in
control of the physical, including human society and the multiplicity of gods and spirits, there was a spiritual
entity associated with the workings of almost every aspect of the physical world.
This gave to the notion that there was come higher power in control of human existence, and therefore some
higher set of rules, principles or laws which mankind could discover and utilize for the proper governance of
their lives and thus lead a perfect existence. This state of perfection was then seen at a goal which the various
gods’ spirits might have intended for humanity and it thus became an ultimate purpose for all to work at
achieving.
The development of natural law philosophy can be studied in relation to four periods in history;
I. The Classical Period
II. The Medieval Period
III. The Renaissance Period
IV. The Modern Period
I. The Classical Period
In Europe, the ascendancy of Judeo-Christian tradition replaced the polytheism of the ancient with a
monotheism which attributed the creation, governance and ultimate judgment of a human society to a single
deity. It was then possible to define a singular purpose for human existence, with a divine law given providing
basic principles for human morality and law through the scriptures, and requiring that societies govern
themselves on the basis of these principles. Parallel to this spiritual/ religious development of natural law, early
Greek and Pre Socratic philosophers developed the idea of rationalism. They surmised the universe was
governed by intelligible laws capable of being grasped by the human mind. It was therefore possible to derive
from the rationality of the universe, rational principles which could be utilized to govern life in society.
The classical period was dominated by the ancient Greeks and Romans. The Greeks believed the existence of a
higher natural law that human law or human actions must not offend. Greeks did not have a single god or holy
book. They had a pantheon of gods and most believed in various oracles, of which the oracle at Delphi I the
most famous. Hence the philosophers turned to the examination of the human mind to discover justice. Most
well-known philosophers of this period are Socrates, Plato and Aristotle.
● Socrates (470-399 BC)
He was an expert in asking questions and generating discussions. His method is known as the Socratic Method.
He argued that there were principles of morality which it was possible to discover through the process of
reasoning and insight. Law based on these principles thus is the product of correct reasoning. However, very
little is directly known about the ideas of Socrates because he did not write them down. It was his student Plato
who wrote a series called ‘The Dialogues’ based on the discussions Socrates had with others.
● Plato (428-348 BC)
He was Socrates disciple. He founded an academy for training of statesman. He believed that statesman should
be philosophers. Plato’s famous work ‘The Republic’ too was in the form of dialogue. Plato argued that mind is
made up of 3 elements.
1. Reason- capacity to calculate and decide

2. Appetite- form of irrational and instinctive impulse
3. Spirit- is an attitude
The knowledge that allows person to harmonize these elements is wisdom; hence wisdom is the key to just
conduct. Plato regarded the just states one that ensures that each class of persons does it own jobs and mind
its own business. And he believed that ultimate justice can be discovered through reason and therefore states
should be ruled by philosophers as only they will be able to engage in proper reasoning and discover the perfect
rules of conduct and grasp the absolute idea of justice.
● Aristotle (384-322 BC)

He was Plato’s disciple. He found his own school named Lyceum. He is the most influential philosopher of the
classical period. His discussion of the ‘intellectual virtues’ established the framework for natural law reasoning
which persists to this day. He believed in the eternal natural order of the universe, and that justice conforms to
the laws of this order. He recognized nature as the capacity of development inherent in particular things, aimed
in particular end or purpose in both physical and moral phenomena.
He also made distinction between,

o Natural justice: common to all humankind and based on the fundamental end or purpose of human
beings as social and political beings, which he concluded to be attainment of a ‘state of goodness’.
o Conventional justice: varies from state to state in accordance with the history & needs of particular
human communities.
Aristotle emphasized that human beings and as such all men and women by nature has a desire to know the
truth. These powers of reason are a dependable guide for interpreting experience and revealing the truth about
reality to us. He identified 5 modes of thinking that help in the creation of truth, it is about the physical world
or about right conduct; scientific inquiry, intuition, art or technical skill, prudence or practical wisdom and
wisdom.
● Cicero (106-43 BC)

He was a great roman orator, lawyer and senator. He gave the most precise and an unambiguous statement
about the Stoic natural law idea. He argued that the nature provided rules by which humankind ought to live
and that these rules which could be discovered through reason should form the basis of all law. He established
the view that an unjust law is not law and argued that a test of good law was whether it accorded with the
dictates of nature. In ‘On the Republic’ he captured that natural law reflects the cosmic order of nature and is
not manmade. There’s no need of wise men to tell us about the natural law for reason reveals its principles.
Natural law is mora.ly binding on rulers and subjects alike, though it can be and is violated by state law. Natural
law is moral law hence it cannot be replaced or altered by legislation. State law may excuse immoral acts, but
those who commit them pay a heavy price in the form of the debasement of their own human nature.
II. The Medieval Period (5th to 15th century)
During this period Western Europe came under the rue of holly roman emperor and the spiritual affairs of this
empire came within the purview of the pope. This period is marked by a decline in the study of classis of the
Greeks and Romans and emphasis was placed on religion and the faith. In the middle age it was the catholic
teaching that dominated the continent. Here was a little space for rational thinking and most of human activity
was controlled by the church. It was ‘faith‘and not the ‘reason’ that guided peoples’ lives. The works of Greek
philosophers were banned, due to the prevailing idea that they contradicted the doctrines of the church. This
stage in European history swathe final integration of the rationalist and the religious approaches to natural law.
● St. Augustine of Hippo (350-430 AD)
He was an African born in Tagaste (present Algeria) who rose to become the bishop of Hippo and was
Christianity’s first great scholar. As a student of rhetoric he became familiar with Stoic philosophy, mainly
through the writings of Cicero. Augustine wrote ‘eternal law is the reason and the will of god which commands
the maintenance of the natural order of things and which forbids the disturbance of it’.
He stated two cardinal principles of natural law.

o Give unto each person their proper due
o Do nothing unto another you would not have done unto yourself
Augustine thought that all the beginning there was no human law, as the natural law scientifically recognized
and observed by people. Inevitably the natural law became obscured as reason was corrupted by vice. Human
law became necessary to restore the natural law with the force of political authority. Augustine unlike some of
the early church fathers did not regard the secular state as a consequence of original sin. Instead he viewed the
state as the product of man’s social instinct which is natural and divinely ordered aspect of the created universe.
Augustine was very clear about unjust laws. A law is unjust when it odds with natural law and such laws should
be ignored by everyone.
● St. Thomas Aquinas (1235- 1275 AD)
His work was profoundly influenced by Augustine and Aristotle whom he refers to as ‘the philosopher’. Yet
Aquinas was a great thinker in his own right, whose views about law are found in his monumental work ‘Summa
Thelogica’. Aquinas came to prominence as Europe emerged from the dark ages. The church was under
challenge by the secular state. Aquinas sought to maintain the spiritual and political supremacy of the church
through rational argument. Augustine has led the foundation for this task bur Aquinas turned to Aristotle for
the framework of his philosophy.
During the period, there emerged a school of think who accepted Averroes’s interpretation of Aristotle. They
were known as ‘Latin Averroists’. They argued that reason could discover truths which might be ‘at variance
with the Christian faith’, and philosopher should not give into the theologian. On political level, some of them
had advocated complete independence of the temporal power from the spiritual power. This line of thinking
brought them into conflict with the traditional theologians. It was in fact a contest between pure reason and
blind faith. Aquinas then had to treat carefully between these two powerful sets of opponents. Against the
traditionalist theologians he had to defend ‘the reality and integrity of the visible world’ as espoused by Aristotle
and against the Latin Averroists, he had to ‘reaffirm the truth of revelation and its complete compatibility with
truths discovered by the reason’. He eventually found a way of reconciling the thinking of the two fractions.
His teachings caused such a controversy within the church that at one stage the bishop of Paris issued a
condemnation of his teachings. He suspected that Aquinas fraction was attempting to revive the classical Greek
philosophy, especially Aristotelian philosophy. The bishop thought that such ideas were hazardous to the
Christian faith. Eventually however his teachings gain recognition by the religious authorities and he is hailed
today, as one of the greatest intellectuals of the Catholic Church. Aquinas pointed out that human beings differ
from other living beings because of their ability to think, reflect and reason out. The natural phenomena and
human beings had developed and progressed according to a certain plan or order. Aquinas identified four types
of laws.
i. Eternal law – the universe is the creation of a god. God is rational by nature, so the universe cannot be
random. The laws that governed the universe are known as the eternal law, which controls both animate
and inanimate tings. So eternal laws constitute God’s rational guidance of all created things is derived
from the divine wisdom and based on a divine plan.
ii. Divine law – this refers to specific moral rules set out in the Ten Commandments (The Decalogue) and
other authoritative scriptures. This is a part of EL which is manifested through revelations in the Christian
scriptures. Aquinas has addressed the question of why divine law is necessary given that eternal law and
natural law of reason guide human conduct.
iii. Natural law – Aquinas argued that human beings have a share of the eternal reason that enables them
to discern what is good and evil. Human beings, in this way participate in the eternal law: ‘this
participation of the eternal law in the rational creature is called the natural law’. He went to clarify that
irrational creatures also partake of the eternal law but not in a rational manner.
iv. Human law – human law is which is derived from both divine law and natural law and which is or must
be directed towards the attainment of the common god. This law may be variable in accordance with
the time and circumstances in which it is formulated, but its essence is to be just.
Aquinas’s scheme of connecting eternal, divine and natural laws is considered to be the first and most unique
innovation in western jurisprudence. The outstanding features of his treatise are,
o Combining, forcefully and skillfully, ancient Greek philosophy, Roman law teachings of the church and
contemporary pragmatism
o The uncompressing appeal to reason was its prominent feature
o Accordingly, god’s law was considered to be the reason of divine wisdom
o Natural law provided principles rather than rules for detailed application
o Reason becomes the foundation for all social institutions such as family and the state
o Church is the authoritative interpreter of divine law as revealed through the scriptures, this
strengthening the position of the church vis-à-vis the state
o If human law deviate from natural law, they cease to be law
o So long as laws are based on reason there’s duty to obey the law
The maxim ‘unjust laws are not laws’ which Aquinas had taken from St. Augustine, reverberates even to this
day. Mr. Martin Luther King, the celebrated civil rights activist in the US, often quoted this maxim in his fight for
equal rights for the black people of America.
III. The Renaissance Period (Secularization of natural law)
During this period the Holy Roman Empire broke up into nation states such as France, Spain, and Portugal. There
were 5factorsthat encouraged the emergence of secular law theory in 17th and 18th centuries.
i. Need of a natural law theory that was natural in all societies irrespective of faith
ii. Need to counter the growing moral skepticism within Europe itself
iii. The gathering force of the enlightenment which disputed the traditional authority of church and state
and questioned all metaphysical or mystical teachings.
iv. The Lutheran belief that it is not possible to know the rational mind of god
v. Need to find a moral basis for the binding force of the ‘ ius gentium’ (international law)
Essentially this secularization resulted from Protestant theorists seeking to develop a doctrine of natural law
which would not be defendant on the papacy and papal pronouncements for its coherence. There was a revival
of learning as scholars started studying ancient classics of the Greeks and Romans. Some of the greatest
intellectuals of the 17th century; among them Hugo Grotius, Thomas Hobbes, John Locke and Samuel Van
Pufendorf turned their minds to this project. They formulated theories of social contract which in turn led to
the explanation of natural rights of human being. In this period there was a shift from natural law principles to
natural rights which is forerunner of human rights of the modern day. According to them all men and women
were born free and equal. As such all human beings were entitled to certain inalienable rights such as right to
freedom from arbitrary arrest, self-determinations etc.
● Hugo Grotius (1583-1645)
He was a Dutch scholar widely regarded as the greatest jurist emphasized the classical explanation of natural
law as being grounded in the authority of reason based on the Aristotelian system. Of his age, and viewed by
many as the father of the discipline of international law. ‘De Jure Belli ac Pacis’ (the law war and peace) is his
famous treatise. He emphasized the classical explanation of natural law as being grounded in the authority of
reason based on Aristotelian system; that is natural law principles are derived or derivable from the nature of
the human intellect which requires and desires to be peaceful. Thus, these principles are independent of divine
command and it is possible to have natural law without appealing to god. He believed that human beings have
instincts of self-preservation unlike other animals and also they have instinctive desire for social life. Human
beings have 3 additional attributes; capacity for language, a sense of what belongs to each other, and acting in
accordance with general principles of conduct.
● Thomas Hobbes
Hobbes was the first modern philosopher to assert the priority of right over law. Law does not create right but
right dictates what the law ought to be. Right confers liberty whereas íus’ or law confines it. Hobbes articulated
the most fundamental proposition of English law; that a person may do anything that the law does not forbid &
refrain from any act that the law does not require. His famous work is ‘Levithan’ published in 1651.
● John Locke (1632-1704)
He was a medical man and a philosopher who also was immersed in natural science. Locke was an early member
of the Royal society, with scientists Robert Boyle, Issac Newton, John Wilkins, Robert Hooke and Christopher
Wren. His greatest work ‘An Essay Concerning Human Understanding’ examined the limits of perception and
knowledge and earned him a reputation as the father of empiricism. Locke like Hobbes rejected the notion of
innate ideas and treated the mind as a blank slate on which experience does the writing. According to him
experience is the only source of knowledge. It is experience alone that leads people to develop political
institutions. His political thesis concerning the limitation of sovereign power set out in the ‘two treatises of
government’ became the authoritative statement of Whig political theory, which inspired English constitutional
settlement following the glorious revolution in 1688. Locke’s important contribution to natural law theory
intimately connected with his political theory and is found in ‘second treatise’.
The Decline of Natural Law Theory in 18th Century and 19th Century
In the age of reason thinkers like Montesquieu, Hume and Adam Smith criticized natural law theory for its
assertion that there was some ultimate metaphysical purpose to human existence and human society separate
from the moral and physical realities of everyday life. Hume specially attacked the prior reasoning behind most
natural law theory through specially what he regarded as being the irrational attempt to derive ought
proposition from is proposition. Despite all the good intention of natural law theorists their ideas were
misinterpreted and utilized to achieve just the opposite of what their authors intended to be. Natural law
criticized as being vague, elusive and as a concept that can be adapted to serve any purpose a manipulator
wanted it to be.
In 19th century there was an even more virulent attack on natural law theory as emphasis was placed on the
notions of state coercion. For example the German philosopher Hegel sought to deify the state which regarded
as an end-in-itself, an absolute sovereign whose essence derived from the laws of history and was therefore not
subject to some external higher law.
There was a rise of positivist approach to law as expounded by such theorists as Jeremy Bentham and john
Austin which sought to place a strict separation between the 2 notions of what law and what it ought to be.
Further reasons for this are,

o Emergence of scientific knowledge; scientists depend on observable data and not vague subjective
theories and natural law didn’t fit into scientific method of discovering knowledge
o Natural law has been used by many people for various ends. The Christian thinkers used natural law to
defeat the teaching of church. Hobbes used for absolutism. Rousseau used for revolution.
IV. Modern Period
Revival of Natural Law Theory in 20th Century
20th Century saw a revival of NL approached to study of law, particularly the notion that there must be higher
set of principles, separate from positive law, which the latter must satisfy if it is to be regarded as valid law.
Revival was resulted from several factors;
o General decline of social & economic stability worldwide
o Expansion of governmental activity
o Development of weapons of mass destruction & their increasing use globally
o Increasing doubts regarding the use & effectiveness of empirical sciences in determining & resolving
problems of human conditions
And this revival occurred after Second World War. Jurists had to find way of meeting the defense arguments of
Nazi leaders who prosecuted for gross violations of human rights. Their arguments, was positivistic one that
laws made by the legislature were laws irrespective of their moral content. As they have compiled with those
laws, they hadn't done anything legally wrong. So the counter argument had find NL. It led to Universal
Declaration of Human Rights by United Nations (1945) &a number of conventions.
● John Finnis & The Restatement of Natural Law
John Finnis, an American lawyer & philosopher, is professor of law and Legal Philosophy at the University
College, Oxford and d adjunct Professor at the University of Notre Dame. In his book ‘Natural Law & Natural
Rights', Finnis undertook a major restatement of the classical nature law theory with the intention of clarifying
its central ideas and defending the tradition against its critics. His restatement represents further development
of the thought of Aristotle and Aquinas. He asserts that natural law doesn't necessitate a belief in morality based
on ‘rationally demonstrable principles of behavior'. It is this type of thinking that led David Hume say that one
cannot get ‘an ought' from ‘is’. Basing himself primarily upon his interpretation of Aquinas, Finnis, therefore
draws his conclusions how people ought to behave, not from some observations of human other natural
phenomena, but from what is self-evidently good for people. This is possible because human beings are
endowed with a special faculty of practical reasoning as part of their nature'.
For Finnis, natural law is the set of principles of practical reasonableness in ordering human life & human
community'. He says that there are 'some basic goods' necessary for human flourishing. Therefore common
good requires a legal system for its achievement.
His theory consists of 2 main propositions;

o There are certain basic human values of existence which he termed human goods.
o These human goods are self-evident & can be achieved through practical reasonableness.
‘Human Goods' according to Finnis is what is required for human flourishing. It is a list setting out the conditions
required by individuals if they are to attain their full potential. There're 7 principles; 1.Life 2.Knowledge 3.Play
4.Aesthetic experience 5.Sociability 6.Religion 7.Practical reasonableness.
According to Finnis , they are basic & universal because they are self- evidently good, they cannot analytically
be reduced to being a part of some other value or to being instrumental to the pursuit of any other, and each
one, when we focus on it may seem the most important.
The idea of self-evidence is Central to Finnis thesis, but is not easy to describe. What is set must be evident to
all reasonable people without the help of anything outside of self. Hence, it is the intuitive grasp of the truth.
Finnis explanation relies heavily on analogies drawn with the methodology of empirical science. Finnis points
out that self-evidence is known to empirical science. In every empirical discipline there're principles or norms
of sound judgment that are self-evident. Thus, we use deductive logic although its validity cannot be
independently proved. Scientists trust the evidence of their senses. A proposition that is self-evident is
indemonstrable.
The method of achieving the above mentioned ‘human flourishing' is through practical reasonableness. It
consists of certain principles that help individuals to distinguish what is morally right from morally wrong.
They are;1.A coherent plan of life, 2.No arbitrary preferences amongst values, 3.No arbitrary preference
amongst persons, 4.Detachment & commitment, 5.The (limited) relevance of consequences, 6.Efficiency with
reason, 7.Respect for every basic value to every act, 8.Requirements of common good, 9.Following of one's
conscience.
Further Finn attempted to capture ‘focal meaning’ of the term law. And he insisted that basic values & the
elements of practical reason that he identified can be accepted by persons who have the capacity to reason
without recourse to God.
Yet, he argued that it does not mean, (I)that no further explanation of that state of affairs required, or (II)that
no such further explanation is available, or (III) that the existence of an uncreated creator is not that
explanation.
He pointed out that universe consists of

1. Order of nature
2. Order of human artifacts
3. Order of attitudes, habits, commitments & principles
4. Order of operations of thought
Contribution of Natural law
Development of fundamental rights & human rights

Formulation of democratic constitutions (USA, France)
Creation and development of international law and relations
Development of Administrative law
Development of principles of Equity
Other legal reforms and developments in the world
Wijesuriya and another V State
The first appellant Lieutenant Wijesuriya, a Volunteer member of the Ceylon Army, attached to the 3rd Gemunu
Watch, and Amaradasa Ratnayake a member of the Volunteer Force were charged on two separate counts on
an indictment with having committed the offences of attempted murder of Premawathie Manamperi by
shooting her with Sterling sub-machine guns and causing serious injuries to her. The offences are alleged to
have been committed at Kataragama on the morning of 17th April 1971. Soon afterwards Premawathie
Manamperi was shot dead through the head with a rifle by an unidentified soldier, and she was buried in a pit
in a vacant plot of land. Both appellants were unanimously convicted by the verdict of the jury, and sentenced
to 16 years rigorous imprisonment each at trial. Premawathie Manamperi was a young woman, 22 years of age
at the time of her death, and had been chosen the Festival Queen of Kataragama the previous year.
At the time Emergency regulations were declared in the country and the Armed Forces of the country were
compelled to meet with force of arms an effective challenge by a group of insurgents, whose main object was
to overthrow the established Government of the country. At Kataragama the whole area was overrun by
insurgents, the civil administration had broken down, there was no supply of food. Wijesuriya and his platoon
of 25 men to proceed to Kataragama was able to reach Kataragama without any incident and set up his quarters
at the Pilgrims’ Rest. After setting up in Kataragama Inspector Udawatte and three constables came in a jeep
to the house of Leelawathie Ubesinghe, the mother of the deceased girl and forcibly removed the girl from the
house and took her to the Army camp. A witness Oliver Silva saw her being questioned at length by Wijesuriya
on the morning of the 17th and when she was made to walk nude along the main road soon afterwards, she
was asked by Wijesuriya to recite the words “ I attended all five classes ”, which was a part of the indoctrination
programme of the insurgent movement. Then first accused kicked her and shot her and after knowing that she
had not died he ordered the second accused to shoot her. However she survived after the second shot and died
by shot of an unidentified solider.
So in this case these two accused appealed against their conviction for murder and brought the defense that
they have to respect and act upon superior orders and the defense under section 69 of penal code.
In our country special legislation, namely the Public Security Ordinance has been enacted vesting extra powers
in the police and armed forces. Emergency regulations can be made there under in the interests of public
security and for the preservation of public order and the suppression of mutiny, riot or civil commotion. Besides
the immunity conferred by Sections 9 and 23 of that Ordinance and referred to earlier in this judgment there
will always be available to the police and armed forces such defenses as “obedience to the lawful orders of
superiors” under Section 69 of the Penal Code, ‘justification’ under Section 72, and “acts done in the exercise of
the right of private defense ” under Section 89.
However the learned judge held;

“Although there is a state of emergency, it does not mean that the ordinary law of the country is suspended.
The ordinary law remains and that law may have been added to by various Emergency Regulations, but the civil
law remains. I must also tell you that the normal law applies as much to every citizen whether he be a private
citizen or whether he be a mobilized soldier; everyone is bound by the ordinary law. , It may be that the soldiers
are armed and they can use force, but that means they must use force according to the ordinary law ; they
cannot use indiscriminate force, but the ordinary law gives a certain kind of protection to certain officers who
obey superiors’ orders, and that protection is given by virtue of Section 69 of the Penal Code.”
And the discussion of law really centered on to what extent a person subject to military law is bound to obey
the command of his superior officer. Three different positions emerged—
(1) A soldier must obey the command of his superior whether it was lawful or not.
(2) A soldier must obey the command of his superior only if it was lawful. This view came into conflict with the
requirement that a soldier must give his unquestioning obedience to his superior’s order. Very often he will
not have time to consider its lawfulness. He does not give his mind to it. It is wrong in such cases to say that
he has reason to believe it to be lawful. It is just that he does not think it to be unlawful.
(3) The third view that a soldier was bound to obey only orders which were not manifestly and obviously illegal.
That is, where the illegality strikes one in the face. In such cases if he obeys such an order the law will
presume that he has obeyed with knowledge of its illegality. This view is more favorable to the appellants
as Section 100 of the Army Act says that a soldier is bound to obey the lawful command of his superior
officer.
Even in those cases where a state of martial law has been held to exist, the degree to which the military may
interfere with civilians has been said to vary with the circumstances. The test has always been whether
interference was necessary in order to perform the duty of restoring and maintaining order. It has been said
that the military authorities would be justified, for example, in ordering civilians to quit their homes or to render
services provided such orders are necessary for the restoration of order. It would, on occasions be justified even
to shoot an offender; for example, an officer-in-charge of troops might justifiably order his men to shoot anyone
about to cut a cable with intent to assist the enemy. In every case, the action taken has been judged by the test
of necessity
HELD: Convictions affirmed by the whole Court. Sentences also affirmed by the majority of the Court, without
any reduction.
❖ Main Criticisms Against Natural Law Theory
-The attempt by NL theorists to derive ought propositions from is proposition is neither possible nor logical.
-Natural lawyers are wrong to place strong connection between law & morality. Although law may sometimes
reflect morality, the two are distinct phenomena and should be recognized as such. An analysis of one should
be therefore not impinge conception of the other. A law can be valid because it has been created validly, even
though it may offend our moral sensibilities.
-Morality is a matter of personal value judgment, which may change erratically for a variety of reasons. It is
therefore undesirable to base the development of law with its necessary requirement for certainty &
predictability on moral considerations.
-The appeal by some NL theorists to the existence of a higher law which should be a measure of moral & legal
property is an appeal to irrationality, since it is not possible objectively to demonstrate the existence of such
principles.
02. POSITIVISM
Legal positivism is the most influential school of thought in jurisprudence. The ancients may have regarded the
law as received from divine sources but in the modern world, where most laws have a known human
author, people think of law as the product of designing human minds.
British legal positivists regard the law as ‘social fact’, by which they mean that law is found in the actual practices
or the institutions of society. Legal positivists have their significant disagreements but they share the common
aim of helping people understand the law as it actually is. A survey of positivist writings on the nature of law
reveals the following main themes:
I. Law is the creation of human agents. Even custom is not law unless it is recognised and enforced by
a human authority.
II. Law ‘is’ can be distinguished from ‘ought’ and it is a social fact. It is found as rules declared by
authorities such as legislatures and courts, or in the actual practices of those who enforce the law.
III. There are good practical reasons for distinguishing the law as it is from what the law ought to be. It
will make the law more clear and certain, so that people have a better idea of their rights and duties
and the community is better able to assess the worth of laws.
IV. It is possible to identify a set of formal criteria by which we may determine whether or not a rule is
a law.
V. A law does not cease to be a law if it fails some moral test which is not in itself a law. The US Bill of
Rights imposes several moral tests, but they are binding as law, not morals. A legal system may leave
room for judges to introduce their moral standards in deciding controversies. According to legal
positivists, that makes no difference to the positive character of the law. The court’s judgments will
produce law even if they fail our own moral tests.
❖ Jeremy Bentham
Jeremy Bentham can be considered as the pioneer of the command theory. English lawyers who were trained
in this tradition, had come to consider common-law as superior to statutes. Bentham, however, had made
common law the subject of ridicule and attack. He made fun of the common law by referring to it as ‘dog's law’.
This is the way you make laws for your dog, and this is the way the judges make law for you and me. Influenced
by the tradition in Continental Europe, he wanted to have laws enacted in the form of a code.
Bentham's well known books are Of Laws in General, which was published only in 1940 and An Introduction to
the Principles of Morals and Legislation (1789).
His definition of law is fairly long and comprehensive. It can be generally described as 'a wish of the sovereign
supported by sanctions or rewards'. It will be seen that this definition is somewhat similar to that of John
Austin's. However, Bentham's definition is more descriptive and complex.
Morrisson has summarised the elements of Bentham's definition as;

1. Law is the product of the sovereign's will
2. Such a product is made known to the citizens of the state
3. The law lays down certain courses of action or demands restraints from action
4. It relies upon the use of sanctions.
The world came to know how much Austin owed to Bentham only after the latter's works were
published, long after those of the former.
❖ John Austin
John Austin is generally known as the father of modern jurisprudence', although he owes much to Jeremy.
Province of Jurisprudence Determined (PJD) was published as a collection of his first 6 lectures in University of
London. After his death, his wife, Sarah Austin, released a revised version of this work.
The PJD contained the core of Austin's thoughts on his theory of law.
The Components of Positive Law
Once the proper area of law was identified, Austin went on to examine its fundamental components. He
viewed positive law as a command of a political superior addressed to an inferior, backed by sanctions.
Command was identified as an expression of a desire or a wish by the political superior that his subjects
should do or refrain from doing some act.
A "command", according to Austin, will have the following elements:

1. A wish or desire of the political superior to inferior - sovereign
2. Expression of that wish by words or other means.
3. The wish should apply to certain class of persons or actions. command
4. Sanctions; A punishment if the inferior did not obey the wish. - sanction
The wish (command) of the sovereign conveyed what the subjects should do or not do. The criminal law tells
us what we should not do such as steal, kill, resort to violence and so on. The law of Torts tells us how we
should conduct ourselves in relation to our neighbour. This wish should be expressed or be made known to the
subjects. In other words, laws cannot be secret. This is the reason for publication of laws in public documents
such as the government gazette. The command should also be addressed to the population generally, or to
certain classes of persons or actions. This is in order to distinguish personal commands or occasional from legal
commands. Austin states, ‘where it obliges generally to acts or forbearances of a class, a command is a law or
rule. But where it obliges to a specific actor forbearance, or to acts or forbearances which it determines
specifically or individually, a command is occasional or particular’. He cites the example of Parliament issuing
an order prohibiting the export of corn already loaded on to a ship that is in port. Since this is directed to a
specific ship and its consignment of corn, this is an occasional and personal order, though legal, it is not law.
But if the Parliament prohibits the export of corn for a particular period or even
indefinitely, then it would be law, as it is a general command. This characteristic contributes to upholding the
rule of law and avoiding arbitrary laws being enacted, addressed to a particular person in respect of a specific
act.
Sanctions
Moreover, all commands should be supported by sanctions. He describes sanctions as;

'The evil which will be incurred in case a command be disobeyed or in case a duty be broken, is frequently called
a sanction, or an enforcement of obedience., or the command or the duty is said to be sanctioned or enforced
by the chance of incurring the evil'.
There are, of course, laws that do not carry punishments, such as the contract law. In such cases, he said, the
failure to comply with such laws would result in the act in question becoming void. For example, if a contract
was not formed according to the law, it would become unenforceable and he says; 'Laws are sometimes
sanctioned by nullities. The legislature annexes rights to certain actions, for example, to contract on condition
that these transactions are accompanied by certain circumstances. If the condition be not observed, the
transaction is void that is, no right arises; or the transaction is liable to be rescinded and the right annulled'.
Judicial Decisions
He considered judicial decisions as indirect commands of the sovereign, as the judges perform their duties
under the authority granted by the sovereign.
‘Now when customs are turned into legal rules by the decisions of subject judges, the legal rules which emerge
from the customs are tacit commands of the sovereign legislature. The state, which is able to abolish, permits
its ministers to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence that
they shall serve as a law to the governed’.
The concept of ultra vires in administrative law can be linked to this idea of tacit command. If a judicial or an
administrative body exceeded the scope of the authority granted to it, that act would become null and void.
Such bodies could legally act only as long as they confined themselves to the area defined by the Parliament.
The Attributes of the Political Superior
Austin’s notions of a command and a political superior were intricately linked. He defined sovereign; "If a
determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from
the bulk of a given society that determinate superior is sovereign in that society”. The sovereign can be a
particular person, like a monarch or a president or a particular body of persons like the Parliament.
Specific features of sovereignty;

o The sovereign should be habitually obeyed by the majority in the respective territory.
o He should not be habitually obeying another person or a body of persons.
Austin gives the example of a viceroy who habitually obeyed the commands of another ruler who granted the
viceroy the authority to govern his province. The viceroy could not be, however, considered as a sovereign since
he and his province were only a part of the realm of the ruler who granted the viceroy the authority to govern.
So it should be noted that; Sovereign powers cannot be restricted (unlimited) and cannot divisible. If the
sovereign powers are divided there are several sovereign persons/ bodies and according to Austin there cannot
be more than one sovereign body in an independent state. When it comes to illimitability he said, ‘a sovereign
is incapable of legal limitations......supreme power limited by positive law, is a flat contradiction in terms’
Austin explained Federal governments and observed that they are formed by political agreement to delegate
common government’s power to provincial governments or vice versa. According to him, common government
or provincial government was not sovereign and sovereignty held by the several governments jointly.
According to him every supreme government was legally despotic, because the sovereign's powers were legally
unlimited. However, he explained that sovereign power could be restricted by morality, based on the opinion
of the members of society, and divine law which included the principle of utility.
Austin applying his own definition to English Constitutional law and International law, called them positive
morality and not positive law. The Constitutional law at the time consisted mainly of conventions or non-legal
rules. Although the courts recognised them, they were not enforceable through court action. If the budget was
defeated in Parliament, the convention was that the prime minister should call for dissolution of the Parliament
and fresh elections. But, if he did not do so, one could not seek relief through an action in the courts.
Austin also discussed the issue of separation of powers which had been referred to earlier by William Blackstone,
who said that legislative power resided in the Parliament consisting of the king, the lords and the commons.
Austin argued that the assertion that legislative powers and executive powers belonged to distinct parties was
palpably false. So he concluded; 'therefore, the division of those powers into supreme and subordinate is perhaps
the only precise one…..those are portions of the supreme powers which are delegated to the subordinates'
International law was, to Austin, 'positive morality’ as it consisted of opinions of states and not commands of a
political superior. During the time of Austin, dealings among states were based solely on agreements, and there
was no mechanism to enforce these agreements.
Despite the attempts made by Austin to explain federal constitutions and separation of powers, there are still
unanswered questions in the context of the modern day circumstances. When one looks at modern day
constitutions, one can see that many states have written constitutions which restrict the ruler's powers. For
example, there are provisions in some written constitutions restricting or limiting the powers of the
legislature. Similarly, federal constitutions provide for greater power sharing between the centre and the
provinces. Constitutions may expressly separate powers among the three organs of the state, namely the
legislature, the executive and the judiciary.
03. KELSEN’S PURE THEORY OF LAW
Hans Kelsen
Hans Kelsen was born in Austria. And he was the draftsman of the 1921 Austrian constitution. He also served as
member of Austrian constitutional council. After Hitler invaded the country he flew to USA and there he worked
hard to find a place in the society as he had an inadequate knowledge of English. His well-known works are ‘The
Pure Theory of Law ’and ‘The General Theory of Law and State’. Kelsen was a positivist and his theory was
influenced by the theory of knowledge, expounded by Immanuel Kant.
Methodology
The pure theory of law is a theory of positive law in general not a specific general order. It is a common theory
of law, neither a presentation nor international legal norms. However, it offers theory of interpretation and
seeks to discover the nature of law itself to determine its structure and its typical forms, independent of the
changing content which it exhibits at different times among different peoples.
The pure theory of law explains the law and attempt to eliminate from the object of this description everything
that is not strictly law. Its aim is to free the law from unwanted component. During nineteenth and twentieth
century this traditional science of law clearly shows how far it is removed from the postulate of purity. The pure
theory of law is a mixture of psychology, sociology, ethics and political theory.
“The pure theory of law undertakes to delimit the cognition of law against these disciplines, not because it
ignores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically
different disciplines which obscures the essence of the science of law.”
However, the pure theory of law is a ‘pure part’ of legal science, consisting of a framework of fundamental
concepts. It is an empirical part of legal science; this framework would be applied to practical (sociological,
historical and so on) material so as to understand that material as ‘law’.
Norm
Kelsen explained this methodology of finding the legal meaning of acts, in terms of a norm. It functions as a
scheme of interpretation', conferring legal meaning to an act. Thus, the decision whether an act of human
behaviour is legal or illegal is the result of normative interpretation.
If ‘A’ occurs, ‘B’ ought to happen.

Although the connection between A and B is a cause and result relationship, the legal 'ought' is different from
the cause and effect relationship in natural sciences which explains the physical world as it is. In legal
relationship the things that ought to happen may not happen like when someone steal he may not be arreste d
due to bribing or something though he ought to be arrested. The legal norm, however, is ‘an ought' statement
that when something occurs, something else ought to follow. The important feature of the study of law to Kelsen
was 'not the analysis of facts of human behaviour, but an explanation of norms which are rules and regulations
that set out the expected standards of behaviour. The norm thus, is a 'command, permission, or an
authorization. These norms end up as directives to officials or individuals to take certain actions.
Kelsen went on to explain that law as expressed in legislation is not found in the form of propositions, ending
up with directives to officials to apply sanctions. According to him the act in question (offence), defined in one
section of the act and the punishment for it is stated in another section. So legal scientists should know to break
these laws into norms and in such break up the antecedent clause or “if” clause is the action or offence and he
named it “delicts” or “secondary norm”. The clause which includes sanction or punishment is the “primary
norm”.
If ‘A’ occurs , ‘B’ ought to happen.
Secondary norm Primary norm
The legal rules or the secondary norms describe the offence, the person who violates the rules, does not commit
an offence, but creates a condition for officials to apply sanctions. If a legal order, such as a statute passed by
Parliament, contains a norm that prescribes a certain behaviour, and a second norm that attaches a sanction to
the non-observance of the first, then the first norm is not an independent norm, but fundamentally tied to the
second; the first norm merely designates- negatively- the condition under which the second stipulates the
sanction.
Hierarchy of Norms
A norm derives its validity from another norm. Kelsen states that there is a hierarchy of norms in a
legal system, one norm leading to another. In this manner, each norm depends on another higher norm, for its
validity.
He says: “The validity of a norm can only be the validity of another norm. A norm which represents the reason
for the validity of another norm is figuratively spoken of as a higher norm in relation to the lower norm. It looks
as if one could give as a reason for the validity of a norm, the circumstance that it was established by an
authority, human or divine”
Top of Form
Bottom of Form
Example:
Highway Code - says that there’s a way that motorist should drive in highway and if not traffic policeman is
empowered to take actions (sanctions)
gets validity gets validity This is the

• Highway Code from • Another higher from • Another higher basic norm
• Motor Traffic norm passed in • Another higher norm • GRUNDNORM
Act Parliament norm
gets validity gets validity gets validity

from from from
The Grundnorm
The grundnorm is the finish line', beyond which one cannot go any further as it is the ultimate norm. it gives
validity to entire legal system and all norms receive validity from it while not contradicting to each other. To
Kelsen; ‘it is the norm, the validity of which cannot be derived from a higher norm, the last presupposition, the
final postulate'.
However basic norm gives only the reason for validity of other norms and not the content of the norms. So it
does not making up a legal system. Kelsens ays; ‘the norm cannot be questioned- the reason for the validity of
the norm must not be sought as the norm must be presupposed. The content of the norm - the child ought to go
to school, however, cannot be derived from the basic norm, because the basic norm is limited only to authorise
a norm creating authority’
• From where does grundnorm get its validity? It does not get its validity from any other source. As stated above,
it is simply assumed or presupposed to be valid by the people in that particular jurisdiction. However the
grundnorm is not in the constitution, but 'acts done according to the constitution ought to be obeyed'. The legal
system is like a pyramid with grundnorm at the apex, going down in descending order of importance and
culminating at the bottom with norms of lesser importance like bye laws or regulations.
According to Kelsen grundnorm should be effective or efficacious in the legal system and should be accepted by
and large within the community. However it does not require the universal obedience. When grundnorm does
not get the minimum support it stops being basic norm and will be replaced by a new one accepted by and large
in the community. And although the efficacy of the grundnorm is essential it alone will not be sufficient.
Change of the Grundnorm
It will remain its validity until it is terminated or replaced by another according to the provisions of existing basic
norm. Kelsen call this as ‘the principle of legitimacy’ and this principle applicable to legal orders subject to
limitation; revolutions including military takeovers. In such situations the old grundnorm ceases to be efficacious
and new system takes its place.
⮚ State V Dosso
The supreme court of Pakistan held that the military regime that usurped power from the lawful government
was effectively in control and therefore valid. Chief Justice Muhammad Munir said in his judgment;
‘it sometimes happens; however that the constitution and the national legal order under it are disrupted by an
abrupt political change not only the destruction of the existing constitution but also the validity of the national
legal order’
⮚ Madzimbamuto V Lardner Burke and Another
At the time of the incident relating this case, Southern Rhodesia (Zimbabwe) was in the process its independence
from the British rule. Fearing that the black majority would dominate the government to after the
independence, white minority led by Ian Smith took control of the government and unilaterally declared
independence from Britain. The British authorities immediately announced that rebel administration was illegal
and requested the people there not to cooperate with the usurpers. Madzimmamuto was arrested under the
Emergency Regulations, proclaimed during the British rule, which were extended by the rebel government. He
contested the validity of the continued detention on the basis that the extension of the emergency by the lan
Smith's government was invalid as the government itself was not legal. However courts held that detention is
valid. It is conceivable that the norm enacted by rebel regime is validated by a norm of thee legal order that the
rebels are seeking to overthrow. This reasoning is known as the ‘doctrine of necessity’.
In appeal Privy Council held that emergency power regulation made after the usurpation had no legal validity.
The reason for the decision was that British government maintained its presence there with the governor and
was trying to restore the control over the territory.
⮚ Asma Jilani V Government of West Punjab
In this Pakistani case court held that the takeover by General Yahya Khan was illegal. However decision was
given when military government was overthrown and a democratically elected government was in place.
⮚ Uganda v Commissioner of Prisons; Ex parte Matovu
In 1966 the Prime Minister of Uganda, in complete disregard of the 1962 Constitution, assumed all state powers
and proclaimed a new constitution. There was no political opposition to this action. The Chief Justice of Uganda,
Sir Udo Udoma, declared: ‘our deliberate and considered view is that the 1966 Constitution is a legally valid
constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result
of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda, it having
been deprived of its de facto and de jure validity’
Criticisms
o Not as pure as he claims as the grundnorm comes to effective with political background.
o No mention about how to measure effectiveness of grundnorm.
o Question whether there’s a basic norm in international law
o No connection with real life.
04. MARXISM
Marxism, a body of doctrine developed by Karl Marx and, to a lesser extent, by Friedrich Engels in the mid-19th
century. It originally consisted of three related ideas: a philosophical anthropology, a theory of history, and an
economic and political program. There is also Marxism as it has been understood and practiced by the
various socialist movements, particularly before 1914.
The written work of Marx cannot be reduced to a philosophy, much less to a philosophical system. The whole
of his work is a radical critique of philosophy.
Marx adapted the Hegelian motion of dialectical logic developing his thesis. According to Hegelian reasoning
transformation in history were created by the clash of wins, The process starts with an original proposition which
is called the thesis, which would in time produce its contrary view , the anti-thesis'. The clash of these two
opposing ideas would result in a resolution of the crisis by overcoming both the thesis and the antithesis and
putting in their place synthesis which is superior to both. This is known as Dialectic Logic.
To Hegel all these propositions originated in the mind or the spirit or consciousness, which were then applied
to the material world.
Marx, therefore, disagreed with Hegelian dialectics and argued that ideas, values and institutions in society,
were determined by material or economic factors. In other words, this was the inverse of the Hegelian
argument. As conflicting external material factors had created social changes, history has be to interpreted from
the perspective of materialism and not in terms of ideas. According to Marx, each phase of human history
created its own contradictions or antithesis which set in motion the process.
According to Marx there are 6 main stages or phrases of development societies are supposed to go;
1. Primitive Communism
In the early primitive societies, people lived by hunting or gathering food, from forests which did not belong to
any particular individual. They needed, therefore, the cooperation of their fellow members to hunt or gather
food and to protect themselves from various dangers. These formed relations of production which were
determined by available resources and technological knowledge. Marx termed these material factors, the 'base'
which determined the type of social arrangements, the values, beliefs and laws and customs of the society.
When technological knowledge changed, the relations of production or the forces of production too changed.
Those parties who wished to reap the benefits of new knowledge, attempted to change the existing relations of
production which no longer accommodated the novel means of production.
The demand arose for acquisition of land for farming and animal husbandry. The strong and powerful in the
community were able to appropriate land which was held in common earlier, and grant tenures to the others
for cultivation and rearing of animals.
2. Slave Mode of Production
A different type of relations now emerged between the landlord and serfs or tenant farmers. Customary laws
evolved to recognise and enforce the respective rights and duties of landlords and serfs or tenants. the slave-
owning mode of production arose thanks to the growth of the productive forces of society, the appearance of
a surplus product, the origin of private property in the means of production, including land, and the
appropriation of the surplus product by the owners of the means of production.
Slavery is the first and crudest form of the exploitation of man by man. The slave was the full and unlimited
property of his master. The slave-owner, at his will, commanded not only the slave’s labour, but also his life. A
comparatively high culture (art, philosophy, the sciences) arose on the basis of slavery. Its fruits were enjoyed
by the small upper class of slave-owning society. The social consciousness of the ancient world corresponded to
the mode of production based on slavery. The ruling classes and their ideologists did not consider the slave a
man. Physical labour, being the lot of the slaves, was considered a shameful occupation, unworthy of a free
man.
The slave-owning mode of production caused an increase in the productive forces of society compared with the
primitive communal system. But later the labour of the slaves, who were completely without interest in the
results of production, outlived its usefulness. The spread of slave labour and the lack of any legal protection
whatsoever for the slaves resulted in the destruction of the basic productive force of society-the labour force-
and the ruin of the small free producers-the peasants and artisans. This ‘predetermined the inevitable downfall
of the slave-owning system.
3. Feudal Mode of Production
Marx also saw the feudal mode of production as associated with a considerable development of productive
forces with the introduction of mills, heavy-wheeled ploughs and other innovations which increased agricultural
productivity. For Marx, the growth of towns signified a new event in history since, for the first time, the relations
of production in the towns differed from those on the land. Thus, unlike previous modes of production, the
towns were not a continuation of the countryside, but the two were increasingly in opposition. This dynamic
between the social relations of town and countryside, together with the development of trade and
manufacturing in the towns, were important elements in Marx's analysis of the dynamic of the feudal mode of
production.
4. Capitalist Mode of Production
Marx defined capitalism as a mode of production characterized by the separation of the direct producers, the
working class, from the means of production or the productive assets, which are controlled by the bourgeoisie
as private property. Ownership of the means of production enables the bourgeoisie to organize the industrial
labor process, where individual workers are driven to seek employment by the needs of their own reproduction.
Contrary to previous modes of production such as slavery and feudalism, the laborer is compelled to enter an
employment relation not by external compulsion, but by economic necessity.
Now, the peasants had to work for a wage with which they had to buy their daily necessities in the market. This
brought about capitalism resulting in a division in society on the lines of capital owning class and the workers.
As the capitalist class wished to enhance their profits, they would attempt to keep wages low and resist any
demands for improvement in working conditions. The capitalist class would then use the state which they
controlled, to enact laws to repress the working class struggle.
5. Socialist Mode of Production
Marx and Engels believed that the class struggle would eventually lead to a revolution by the working class, who
would succeed in setting up their own government which was to be called the 'dictatorship of the proletariat’.
The Marxist definition of socialism is a mode of production where the sole criterion for production is use- value
and therefore the law of value no longer directs economic activity. Marxist production for use is coordinated
through conscious economic planning,] while distribution of economic output is based on the principle of to
each according to his contribution. The social relations of socialism are characterized by the working class
effectively owning the means of production and the means of their livelihood, through one or a combination of
cooperative enterprises, common ownership, or worker's self-management.
6. Communist Mode of Production
Communism, political and economic doctrine that aims to replace private property and a profit-based economy
with public ownership and communal control of at least the major means of production (e.g., mines, mills, and
factories) and the natural resources of a society and this is the ultimate goal of dictatorship of proletariat to
create classless society. Communism is thus a form of socialism—a higher and more advanced form, according
to its advocates. Exactly how communism differs from socialism has long been a matter of debate, but the
distinction rests largely on the communists’ adherence to the revolutionary socialism of Karl Marx.
Marxism is based on four doctrines, which are:
1. Doctrine of the economic determination of law. Law, politics, religion and moral values form the
superstructure determined by the economic system.
2. Doctrine of the class character of the law. It is used by the ruling class to keep subjects under control.
3. Doctrine of the identity of law with state. The state comes into existence as soon as there is an unequal
distribution of wealth. The property owners will attempt to protect their wealth from those who do
not own them, through law.
4. Doctrine of the withering away of the law and the state. Marxists believe that one day, a classless
society would come into being, when there would not be any necessity for the state and law.
05. FEMINISM
Introduction and History of Feminism
The word ‘Feminist’ was first used in t appeared in France and the Netherlands in 1872. However, women and
men much before this had expresses their personal opinion demanding fair rights for women. Some of these
people included, Greek philosopher Plato, French writer Christine de Pizan and Margaret Cavendish, Duchess of
Newcastle-upon-Tyne.In18th and the 19th; age of enlightenment bought the works on women’s rights and their
plight in the society were published for the general public, with philosophers, poets and writers like Nicolas de
Condorcet, a French Revolutionary and Mary Wollstonecraft, writer; amongst others; works on women’s rights
and their plight in the society were published for the general public. Later Female journalists like Martineau and
Cobbe in Britain, and Margaret Fuller in America, started to come up, inspiring others that working in
professions such as these was an option, (even though it wasn’t a respectable one at that time.). By mid-
nineteenth century, women in cities like London started their education and other campaigns driven by women
like the ‘Ladies National Association for the Repeal of the Contagious Diseases Acts and the ‘Married Women’s
Property Act’ started to come up. And when it was1913, Feminism became a widely used term in the United
States and in the coming years, issues like suffrage gained widespread attention. In 1920, the Nineteenth
Amendment to the United States Constitution, finally granted women the right to vote.
During World War I and II, while most men were out, women were left back home to take care of the house and
the household. During these times, women stepped out for the first time taking on jobs that had been off limits
previously. In the 1960’s started the second wave of feminism. With issues like suffrage championed in most
modern countries, the conversation now moved on to the sexism in the cultural society. This later changed the
conversation to the involvement of women in politics, sociology, history, and literature. And the third wave
Feminism started in the 1990’s, which focused on subject like homosexuality and non-white women. It also
focused on abolishing gender role expectations and stereotypes.
Feminist Jurisprudence - Feminist jurisprudence is a legal theory and practice that focuses on areas where the
law supports the oppression of or discrimination against women, and attempts to correct these inequalities and
perhaps, change the social attitude towards women.
The area of feminist studies has been known by various names; ‘women and the law’ , ‘gender and the law’ , ‘
feminist legal theory’, and lastly as ‘feminist jurisprudence’.
Varieties of Feminism
A variety of movements of feminist ideology have developed over the years. They vary in goals, strategies, and
affiliations. They often overlap, and some feminists identify themselves with several branches of feminist
thought.
1. Liberal Feminism
Liberal Feminists believe that if a 'sameness approach is taken, equality for women can be achieved substantially
within the current legal framework. Liberal feminism as theory and work that concentrates more on issues such
as equality in the workplace, in education, and in political rights. Liberal feminism also focuses on how private
life impedes or enhances public equality.
Thus, liberal feminists tend to support marriage as an equal partnership, and more male involvement in child
care. Support for abortion and other reproductive rights have to do with control of one's life and autonomy.
Ending domestic violence and sexual harassment remove obstacles to women achieving on an equal level with
men.
Liberal feminism's primary goal is gender equality in the public sphere, such as equal access to education, equal
pay, ending job sex segregation, and better working conditions.
2. Socialist Feminism
Like Marxism, socialist feminism recognized the oppressive structure of a capitalist society. Like radical
feminism, socialist feminism recognized the fundamental oppression of women, particularly in a patriarchal
society. However, socialist feminists did not recognize gender and only gender as the exclusive basis of all
oppression. Rather, they held and continue to hold that class and gender are symbiotic, at least to some degree,
and one cannot be addressed without taking the other into consideration.
Socialist feminists wanted to integrate the recognition of sex discrimination within their work to achieve justice
and equality for women, for working classes, for the poor and all humanity.
3. Cultural Feminism
Cultural feminism refers to a philosophy that men and women have different approaches to the world around
them, and that greater value should be placed on the way women approach the world. In some cases, cultural
feminism argues that a woman's way of looking at the world is actually superior to men's. This perspective aims
to unite all women, regardless of ethnicity, race, class or age.
The essence of being a woman is what makes women special and different compared to men, according to this
view. This female essence includes a greater emphasis on cooperation, relationships and peace, also referred
to as an ethic of care. Cultural feminists can either believe that being more nurturing is biologically determined,
or they might believe that this trait was taught to them by society, or some combination of both.
4. Radical Feminism
Radical feminism is a philosophy emphasizing the patriarchal roots of inequality between men and women, or,
more specifically, the social domination of women by men. Radical feminism views patriarchy as dividing societal
rights, privileges, and power primarily along the lines of sex, and as a result, oppressing women and privileging
men.
Radical feminism opposes existing political and social organization in general because it is inherently tied to
patriarchy. Thus, radical feminists tend to be skeptical of political action within the current system and instead
tend to focus on culture change that undermines patriarchy and associated hierarchical structures. Radical
feminists suggest changes, such as finding technology that will allow babies to be grown outside of a woman's
body, to promote more equality between men and women. This will allow women to avoid missing work for
maternity leave, which radical feminists argue is one reason women aren't promoted as quickly as men. In fact,
radical feminists would argue that the entire traditional family system is sexist.
There are many other varieties of feminism like black feminism, eco-feminism, lesbian feminism, French
feminism etc. however above 4 are the groups of feminism.
Discriminatory Laws and Feminist Jurisprudence
This analysis consists of 2 aspects.
I. Laws discriminates against women (denying political and fundamental rights like right to vote or enjoy
equal treatment before the law)
II. Laws that seems neutral on the surface but actually discriminate against women (laws on family
relationship, rape and employment)
• Public law - Private law: Public law is about relationship between individual and state (administrative law,
criminal law) and private law is about relationship between individuals.(contract law, tort law).and these
separation was concerned by feminists and found that many issues relating to their studies are treated as private
matters until recent times. However feminists continuous struggle have led to criminalizing acts like domestic
violence, sexual harassments, and marital rape.
DSD and NBV V The Commissioner for Metropolitan Police (Black Cab Rapist Case)
John Worboys, a cab driver committed over 100 acts of rape and sexual assaults by intoxicating and during
young women found outside pubs in the night. Despite numerous complaints, the police failed to arrest the cab
driver. However, due to media publicity given to the stories of the victims, the police eventually instituted
charges against the man, in respect of the offences committed against just two of the victims only. The driver
was convicted and sentenced to life imprisonment.
The two victims identified as DSD and NBV, sued the Metropolitan Police Service on behalf of themselves and
other victims seeking a remedy for the alleged failure on the part of the defendants, to conduct an effective
investigation into their respective complaints of serious sexual assault.
The claim was for damages for the failure on the part of the police to take timely and effective action against
the offender. Under common law, an action of this nature would have been treated as a tort case as there was
no complicity the part of the police in the commission of the crimes. It has been held previously that the police
did not owe a duty in negligence, in relation to the investigation of a crime.
The judge Mr. Justice Green, however, viewed the case from a different perspective. To him the key to the
resolution of the dispute lay, not in tort law but in Public law, as it involved the fundamental rights of citizens
vis a vis the state. His reasoning backed by Human Rights Act 1998 which stated that it was unlawful for a public
authority to ‘act in a way which was incompatible with a Convention right’, section 7; that a person who claimed
that a public authority had acted in such a way could bring proceedings before the appropriate court or tribunal,
and section 8; conferred upon the courts the power to grant appropriate relief, including damages.
In the evidence presented he found a series of systemic failings on the part of the Metropolitan Police Service
to apprehend the offender in time, the failure to train relevant officers in dealing with cases of sexual assaults,
especially ones involving drugs and alcohol, failures to adhere to investigation procedure, serious failures to
interview vital witnesses, collect key evidence, follow up on CCTV footage and prepare properly for interviews
with the suspects. He also found that the effects of the assaults had caused the victims depression, feelings of
guilt, anxiety, and an inability to sustain relationships, including sexual relationships. That trauma had to be
multiplied one hundred fold and more, to begin to have a sense of the pain and suffering that Worboys' serial
predatory behaviour exerted upon his many victims. But their feelings were not the end of this circle of misery
because ... the effects rippled throughout the victims' families and their respective circles of friends.
• Law on Rape
Feminists believe that law on rape is discriminatory against women as many jurisdictions make available
defenses such as consent, lack of resistance or face or lack of an intention to commit rape. Term ‘consent’ such
as absence of refusal or resistance has received a wider meaning and victims prior relationships, her attire has
considered as invitation to sexual intercourse.
The Sri Lankan cases, Inoka Gallage V Kamal Addaraarachchi and Karunasena V Republic of Sri Lanka,
discussed about the concept of consent relating to law of rape.
In the first case Kamal Addaraarachchi was prosecuted for raping a teenage girl who was attracted to him. And
he was convicted by a female judge at the trial who is famous as a strong feminist but later quashed the decision
of trial by two male judges in the appeal.
And in the second case victim was raped by accused when she went to the house of accused to borrow the
newspaper on her way back to home from church. And the court released the charge on accused on the defense
of consent.
In 1999 Italy appeal court reversed conviction of rapist on the ground that victim wore jeans and without her
consent he could not take it off. In 2008 another appeal court reversed its earlier decision and held that wearing
tight jeans is not barrier to commit rape.
Feminists fought years to change this judicial attitude. However today some jurisdictions have introduced
offences like date rape where a sexual intercourse takes place without female’s consent in their voluntary social
engagement (E.g. Mike Tyson case) and marital rape where husband engage in sexual intercourse with wife
without her consent. But still there are many countries men still have the ‘conjugal right’.
• Domestic Violence
Kiranjit Ahluwalia case
The appellant (Kiranjit) poured petrol and caustic soda on to her sleeping husband and then set fire to him. He
died six days later from his injuries. The couple had an arranged marriage and the husband had been violent
and abusive throughout the marriage. He was also having an affair. On the night of the killing he had threatened
to hit her with an iron and told her that he would beat her the next day if she did not provide him with money.
At her trial she admitted killing her husband but raised the defense of provocation however, the jury convicted
her of murder. She appealed on the grounds that the judge's direction to the jury relating to provocation was
wrong and she also raised the defense of diminished responsibility. At the appeal she was convicted for
manslaughter and released as she had already served 5 years in prison. In this case it changed the definition of
‘provocation’ in abused women cases and new psychological condition was recognized as ‘battered woman
syndrome’.
06. HOHFELD’S RIGHT ANALYSIS
The concept of analyzing legal rights in a broader sense was given by Professor Wesley Newcomb Hohfeld.
Professor Hohfeld was born in 1879. He graduated in 1901 from the University of California and moved to
Harvard Law School. There, he served in the capacity of editor of Harvard Law Review and graduated with honors
in 1904. Professor Hohfeld then taught from 1905-1913 at Stanford Law School. Later in his career, he shifted
to Yale Law School. He taught at the prestigious law school until his demise in 1918.
Professor Hohfeld has contributed significantly to the field of Jurisprudence. He attempted to simplify the term
right by creating an analysis that separates various core concepts in law. These core concepts were then shown
to be inter-related and a framework of such relationships was construed. The analysis of the connectivity in
relationships can shed light on implications of policy and decision making. Thus, his work has permitted the
deconstruction of legal principles into individual elements.
Professor Hohfeld has propounded that the different meanings of the term right are often conflated in a single
sentence. In any given sentence, the usage is switched several times. This lack of precision in the language
subsequently indicates a lack of precision in thought and the conclusions that are derived in turn. His efforts to
facilitate reasoning led him to break the meaning of rights into eight unique concepts. These terms are defined
with respect to one another to eliminate the presence of any ambiguity.
What is a right? A right can be defined as an interest recognized, protected and enforced by law. Justice Strong
has held “The word ‘right’ is defined by lexicographers to donate, among other things, property, interest, power,
prerogative, immunity, privilege (Walker’s Dict. word ‘Right’). In law it is most frequently applied to property in
its restricted sense, but it is often used to designate power, prerogative, and privilege,…”
A man has several rights over both tangible as well as intangible objects. He also possesses rights as a person
such as the right to enjoy a certain reputation, the right to not be assaulted or injured, rights in a domestic
environment and rights that are related to other rights e.g. contractual rights. Certain other rights of a
contractual nature may also exist such as those rendered for service e.g. master and servant, doctor and patient.
Rights over intangible objects would include copyrights, patents, trademarks etc. Thus, rights can be considered
as advantages or benefits that are conferred by law.
Hohfeld broke the term ‘right’ into four distinct basic conceptions:
● Claim right or right in the strict sense – I will be using the term right for simplicity.
● Privilege or liberty– Hohfeld preferred the term ‘privilege’ to ‘liberty’ because he felt that ‘liberty’ had
wider connotations. In current usage, ‘liberty’ is probably more precise than ‘privilege’. Hence, following
Glanville Williams, I will be using the term liberty to refer to Hohfeld’s privilege, noting that the two may
be interchanged without violence to the system (Williams 1956, 1131–2).
● Power – like Bentham, Hohfeld regarded power as a special case of liberty. He considered this distinction
to be critical for accurate legal thinking.
● Immunity – immunity is a special case of right and, again, it is important to distinguish the two for clear
understanding of the law.
Jural Correlatives
In any legal relation between two parties concerning a single act or omission, the presence of one conception
in one party entails the presence of the correlative in the other party.
E.g. If A has a right that B pays him $10 under the contract, B has a duty to pay A $10
Right – Duty Power - Liability

Liberty – No right Immunity – Disability
Jural Opposites
in one party means the absence of the jural opposite in that party.
E.g. A, who has a right that B pays him $10, does not also have a no-right in that regard. B, who has a duty to
pay $10, does not have a liberty not to pay.
Right – No right Power – Disability

Duty – Liberty Liability- Immunity
Jural Contradictories
in one party means the absence of the contradictory in the other party.
E.g. If A has a right that B pays her $10, B cannot have a liberty not to pay A because B has a duty to pay A.
Right – Liberty Power - Immunity

Duty – No right Liability – Disability
Interconnection of these Legal Concepts
Right Liberty
contradictories
correlatives opposites
correlatives
Duty contradictories No Right
E.g. If X has a right under the contract that Y pays her $10:
Correlative: X has a right that Y pays her $10 and Y has a duty to pay $10 to X.
Opposite: Since X has a right to be paid $10, Y cannot have no-right to be paid.
Contradictory: Since X has a right to be paid $10, Y cannot have a liberty not to pay.
Immunity
Power contradictories
correlative opposites correlative
Liability contradictories Disability
E.g. If A has power to arrest B:

Correlative: A has power to arrest B and B is liable to be arrested by A.
Opposite: Since A has power to arrest, A cannot have disability to arrest.
Contradictory: Since A has power to arrest B, B has no immunity from arrest.
Hohfeld aimed to break up the law into basic elements and see how law actually works. So he found that the
law works through basic relationships between individuals in relation to single act or omission. There are
important implications of the basic premise of Hohfeldian analysis;
1. Jural relations exists between two individuals and not between a person and a thing (though one claims
to own his car, he doesn’t have any jural relation with it. He has jural relation with A,B,C,D,E,…and every
other individual in world with respect of his car)
2. Ownership of a thing is generally described as a bundle of entitlements over the thing.( one have right to
enjoy his property is one thing. And he also have right that other would not enjoy it without his permission
and it’s another. Likewise they are separate entitlements)
3. The same set of facts may give rise to separate jural relations.
4. It is critical that we recognize that a dispute between two parties can give rise to distinct and successive
legal relations.
Right–duty correlation:-
A person has a right only because some other person has a duty that correlates to that right. One cannot exist
without the other. They represent the two aspects of one relation, just as ‘heads’ and ‘tails’ represent two sides
of a coin.eg: The baker has a right to be paid for the loaf that the customer buys because the customer has a
duty to pay for the loaf.
As Finnis commented, it is critically important to bear in mind that a right is never to do an act or not do an act.
It is a claim that another person must do an act or not do an act (1972, 380). Some writers have argued that
there are duties that do not correlate to anyone’s rights, such as the citizen’s duty to pay tax.
Liberty–no-right correlation:-
It is noticeable that a liberty does not carry a correlative duty on the part of another. A, as owner of Blackacre,
has liberty to walk on it. Others, of course, have duties not to interfere with A’s liberty. As Finnis showed, the
failure to maintain this distinction has led even eminent jurists to serious error in applying Hohfeld’s analysis.
Power–liability correlation:-
As Bentham previously explained, power is a special kind of liberty. The exercise of power creates new legal
relations by imposing duties and creating rights in others. A simple liberty has no such effect. The arresting
police officer exercises a power, not a simple liberty. The person to whom a lawful power is applied is said to
have a liability.
Immunity–disability correlation:-
Immunity is an exemption from the force of the law – specifically from the exercise of power. It is a subset of
the right that I have that another person not exercise power to change my existing rights. Its opposite is
disability. A diplomat has ‘diplomatic immunity’ not to be charged and tried in the court of a foreign country in
which she enjoys diplomatic status. Thus, the Ambassador of country C in Australia who causes an accident by
reckless driving in Sydney may successfully invoke her diplomatic immunity when charged for the offence in an
Australian court. A donor who donates a part of his income to a recognised charity may claim an exemption
from income tax on that part of the salary. The so-called ‘right to remain silent’ is an immunity enjoyed by an
accused person that prevents the police or the prosecution from forcing the accused to give evidence against
herself.
Importance of Hohfeld’s System
Hohfeld’s aim was to show that many common errors and misconceptions about law could be eliminated if
lawyers understood the fundamental legal conceptions and gained precise understanding of the nature of jural
relations. In particular, he hoped that his analysis would expose the problems posed by artificial constructs such
as the idea of the right in rem. Hohfeld did not claim originality for his insights, but argued that he was
presenting systematically the ideas that the abler minds in the judiciary and the academy were already applying
to the law. He showed through citations that the essentially interpersonal nature of rights in rem. Hohfeld
devoted the second installment of his work to an extended survey of judgments and commentaries that showed
how some judges and jurists got it conceptually wrong and how others got it right.
Hohfeld proposed a new dichotomy to replace the categories of rights in rem and rights in personam and, to
this end, coined the terms ‘multital right’ and ‘paucital right’. A has a right that B pays her $10 under the
contract. This is a paucital relation between A and B. In contrast, D, as the owner of Whiteacre, has multital
relations with every other individual in the world severally. Here D has rights against an indeterminate group of
persons.
This analysis enables us to see that multital rights need not relate to physical things.
Hohfeld’s system is an unambiguous help in thinking clearly about the law. His terminology has not gained the
currency that he hoped. This is mainly because lawyers and legal scholars are too wedded to the terms ‘right’
and ‘duty’.
07. LAW AND MORALITY
Law and morality can be understood as concepts, but any attempt made to define them becomes difficult. Law
is a set of rules and boundaries that are established by authorities which must be obeyed, otherwise, a legal
sanction might be given. Law was described by Sir John Salmond as ‘the body of principles recognised and
applied by the state in the administration of justice’. While Morals are normally just beliefs, values and principles
that are set by society or part of a society, determining what is right and wrong. However legal rules, compliance
with moral rules is voluntary, that are often informally enforced through social or domestic pressure also know
and a legal sanction. There are differences between legal rules and moral rules. Law are created by formal
intuition e.g. parliament. Morals evolve as a feeling within society. No formal creation exists. Laws can be
instantly made and instantly cancelled. It can exist one minute and the next it does not. E.g. when an act is
repealed. Morals form slowly and change slowly as society’s attitudes change. There is usually a slow transitional
period e.g. society’s attitude to premarital sex.
A law either exists or it does not. Its existence can be established. Morals are much vaguer in definition. Although
society is generally that certain activities are immoral as many issues society’s opinion is divided such as
homosexuality. Breach of this law leads to some form of punishment or remedy enforced by the state. Breach
of moral leads to some form of social condemnation but the state is not involved. Society’s attitude to law is
irrelevant. A law exists even if the vast majority disobeys it. Morals are rules that reflect society’s values and
beliefs. Therefore these values and beliefs are vital for the existence of moral.
To understand connection between law and morality it will be discussed Hart’-Fuller debate. Hart-Fuller debate
is arguably one of the most interesting academic debates in jurisprudence, and also because it demonstrates
the divide between positivist and natural philosophy of law regarding the role of morality in law.
HLA Hart’s View:
Hart is a positivist, so he does not believe that there is a necessary connection between law and morality. While
he does acknowledge that there is a close relationship between law and morality, and does not disagree that
the development of the law has been immensely influenced by morality. However, he does not believe that they
are interdependent on each other. As such he feels that a line should be drawn between what law should be,
and what law ought to be. The fact of the matter remains, that a law does not stop being law due to moral
criticism of it. Hart believes that officials should display truthfulness about the law by concentrating on what it
says rather than focusing on what one desires it to say. According to Hart the law consists of primary and
secondary rules. Primary rules are duty imposing rules on the citizens and have a legal sanction. Secondary rules
are power conferring laws that describe how laws should be recognised, adjudicated or changed. Hart says these
rules form the heart of the legal system and the rule of recognition is the glue that binds the legal system as a
whole. So, Hart advocates that conformity to a certain moral standard is not required for a legal system to exist.
Hart acknowledges that law and morals are bound to intersect at some point, for instance where a case comes
up where the wording of the relevant statute is not sufficient to give effect to the purpose of the law (professor
hart refers to these as problems of the penumbra), Hart says that such cases can be solved by way Judicial
interpretation. A decision can be made about what the law ought to be, and moral factors play a crucial role in
deciding such hard cases.
Fuller’s view:
Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating human behaviour through
laws. He believes that our legal systems are derived from the norms of justice which have a moral aspect. He
argues that for a law to be valid, it must conform to a certain moral function test. These are the eight desiderata
set out by Fuller; (I) Rules (ii) published (iii) prospective (iv) intelligible (v) not contradictory (vi) possible to
comply with (vii) reasonably stable through time (viii) followed by officials. Fuller implores law makers to take
into consideration each of the above before determining whether a law is valid. Fuller goes further to explain
morality by categorising it in two; Morality of aspiration and morality of duty. Morality of aspiration suggests a
desired norm of human conduct that promotes his/her best interest. Morality of duty describes the standards
people follow to ensure smooth functioning of society. Other forms of morality discussed by Fuller are “Internal
morality of law” and “External morality of law”. The former is concerned with procedure of law making while
the latter focuses more on substance rules of law which are applied in decision making. Fuller rejects the
positivist approach to law and argues that society’s goals can be achieved by other means rather than relying
solely on law.
Upon examining both Hart and Fullers view on what the law is and how it relates to morality it can be found
that Fuller’s naturalist ideals offer the most solutions to the problems in the modern day legal system. An
example of this is where Hart says that we should identify what law is and what it should be, this still leaves the
question, ‘why do we obey the law?’ Is it because of the sanctions behind it? Or is it, because we accept it? As
Hart believed, would we refrain from committing rape if there was no punishment? Or Perhaps law is obeyed
because it is the most convenient and just way of organising our societies? All these questions will have a
different answer depending on one’s philosophical point of view.
Are we obligated to obey the laws of a state if we deem the state immoral? Examples of these states are: the
apartheid laws of South Africa or the Nazi laws of Germany. These were all legitimate laws as they were passed
by their relevant Parliaments. But did those laws have moral authority?
A good example this point is that of the grudge informer case that was discussed in the Hart- Fuller Debate
Published in the Harvard law review because it demonstrates the differing views of naturalism and positivism,
particularly in the context of Nazi laws. Facts of the case are as follows:
“A German woman denounced her husband to the authorities in accordance with the anti-sedition laws of 1934
& 1938. He had made derogatory remarks about Hitler. The husband was prosecuted and convicted of
slandering the Fuhrer, which carried the death penalty. Although sentenced to death he was not executed but
was sent as a soldier to the Eastern front. He survived the war and upon his return instituted legal proceedings
against his wife. The wife argued that she had not committed a crime because a court had sentenced her
husband in accordance with the relevant law of the time. However, the wife was convicted of ‘illegally depriving
another of his freedom’, a crime under the Penal Code, 1871, which had remained in force throughout the Nazi
period. The court described the Nazi laws as ‘contrary to the sound conscience and sense of justice of all decent
human beings’ (1951)”.
According to Harts positivist views, the decision given by the Court was wrong, because hart believes that no
matter how heinous the Nazi laws were, they were in accordance with the Enabling Act passed by the Reichstag,
and were valid. It satisfies Hart’s rule of recognition. I find this very disturbing for many reasons. Fuller on the
other hand recognised the Court’s decision because it created respect for law and morality, and by using his 8
desiderata Fuller states that all Nazi laws were illicit. This justifies the courts overlooking of the earlier 1934 act
and upholding the wife’s conviction.
According to Hart, the Courts were left with only two options to preserve the integrity of the judicial decisions,
either to let the wife go free because the statute protected her, or make a retrospective laws repealing the
statute under which she claimed protection, and declaring the acts of the perpetrators of such atrocities as
criminal. Even though Hart did not favour the retrospective application of criminal statutes, he argued that the
Nazi regime could have been considered an exceptional circumstance for the application of retrospective of
laws, if the Courts were afraid that Hitler’s accomplices would be acquitted. Hart was strongly against the Court’s
decision to introduce a concept of morality and deciding the statute which protected the woman was no law at
all.
Fuller contended that Hitler’s regime was so harmful to morality, that there was nothing in the system that
could qualify to be called a law as they did not comply with his desiderata. He stated that the Nazi laws lacked
the necessary internal morality required in the process of law making, which gives laws respect and makes them
obligatory to be followed by citizens. Fuller believed that unless the Nazi laws were treated as non-laws, the
perpetrators of evils under the Nazi regime would go unpunished. A result I feel is unjust.
Supposing a law forbade the taking of a vehicle into a park, and is not specific as to which type of vehicle. An
apparent meaning of the term ‘vehicle’ would imply that cars are prohibited from entering the park. However,
in absence of any clear definition of the term vehicle, would toy cars or airplanes qualify as vehicles? And, would
the rule of prohibition be equally applicable on them? Hart emphasises that interconnection between what the
law is and what the law ought to be in the penumbra does not depict how the law actually functions at the core.
Fuller also argues that it is not possible to determine if a rule applies to a given situation, without understanding
the purpose that the rule was supposed to serve by referring to the objectives of entire provisions of law rather
than seeking to find meaning of individual words. He identifies the problem as one of interpretation of words
and not an issue of core and penumbra as claimed by Hart. Fuller emphasises that fidelity to law can be only
achieved if the law is in accordance with morals at all stages, be it at the time of making of the law or its
application by the court. People will comply with the law only if they are convinced that the law is based on
strong moral foundations enacted for their common good. Fuller further criticises Hart’s definition of law which
insists that law and morality needs to be separated. Fuller contends that there cannot be a specific definition of
law. Likewise, even morality cannot be defined accurately. Therefore, Fuller argues that because there is no
precise definition for law and morality, it is pointless to argue that both of them are separate.
Onto final point, the issue with principles of morality is that various societies will have different moral principles.
So in pluralistic societies such as ours, there will be conflicting ideas of what is, or not moral. For example, in
Muslim countries it is considered immoral for a woman to walk outside without a hijab, whereas in the west
this is not considered immoral. There is also the issue that morals tend to change over time, so what was deemed
immoral 50 years ago may no longer be immoral. An example of this same sex marriage, this was perceived as
being so immoral that it was illegal. It wasn’t until the Marriage (Same Sex Couples) Act 2013 was passed by the
UK Parliament that it became legal and somewhat morally acceptable in the UK. In Forsythe v DPP and the AG
of Jamaica the courts said “That a law is valuable not because it is ‘the law’ but because there is ‘right’ in it and
laws should be like clothes; the Laws should be tailored to fit the people they are meant to serve.”
08. DWORKIN’S THEORY OF LAW
In Law's Empire, Dworkin has distinguished three legal conceptions: conventionalism, pragmatism and "law as
integrity”, by criticizing conventionalism and pragmatism, Dworkin concludes that "law as integrity" is the most
plausible and defensible. In the theory of conventionalism, legal rights can only emerge from existing law,
including precedents and legislation. Conventionalism also holds the view that judges must follow the law and
should make decisions only based on existing statutes and more importantly, judges must respect what
convention deems binding law.
According to the theory of pragmatism, assignments of legal rights and responsibilities must be consistent with
past decisions. Moreover, the pragmatist theory holds the view that adjudication is not really constrained by
the law. Hence, pragmatism argues that judges "should decide what decision will, according to them, be best
for the community as a whole." This means that for reasons of strategy judges must sometimes act "as if" they
are applying pre-existing legal rights. In the meanwhile, in accordance with pragmatist theory, to some extent,
the behaviour of a court in making decision of certain case is not constrained by the existing law.
These two legal theories are highly criticized by Dworkin. As Dworkin points out that "assumes that judges
sometimes invent law, which means that they act in an unconstrained manner. Pragmatism also assumes that
judges are hardly constrained when adjudicating cases. It thus cannot account for why judges are so concerned
with precedents and statutes when they decide hard cases."
Dworkin then provides a third theory of law, which he believes not only better represents what actually happens
when judges decide cases but is also a morally better theory of law. Integrity is Dworkin's version of legal theory.
He says,
‘Law as me integrity denies that statements of law are either the backward-looking factual reports of
conventionalism or the forward-looking instrumental programs of legal pragmatism. It insists legal claims are
interpretive judgments and therefore combine backward and forward-looking elements; they interpret
contemporary legal practice seen as an unfolding political narrative. So law as integrity rejects as unhelpful the
ancient question whether judges find or invent law...’
Dworkin commences his discourse in Taking Rights Seriously with a description of principles which occupy an
important place in his theory. Principles are standards relating to aspects of justice, fairness and morality. These
are broader than rules, and in the adjudication process they are concerned with rights. Principles are, however,
distinguished from 'Policies': policies are concerned with asocial goal, such as providing subsidies for farmers
affectedly floods. Policies are therefore a matter for the legislature.
Principles and Policies are different from 'Rules', because rule could only determine whether a particular act is
valid or not. There is nothing in between, for instance a will must be witnessed by two witnesses and if only one
has signed, then the will is invalid. A rule has, therefore, an allot nothing character.
Dworkin explains; the difference between legal principles and legal rules is a logical distinction. Both sets of
standards point to particular decisions about legal obligation in particular circumstances, but they differ in the
character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates
are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in
which case it contributes nothing to the decision.
Lawyers support their arguments with principles when they are in court. Dworkin is of the view that 'Law is an
argumentative attitude." Thus, in criminal law, a lawyer could bring up the principle of ‘mens rea’ to highlight
responsibility, or raise the principle of relevancy in regard to evidence, or the principle of quid pro quo in a
dispute on a contractual transaction. There are frequent arguments in court proceedings, because lawyers often
look for principles to support their respective stands.
In order to demonstrate the role of principles in legal arguments, he cites the cases of Riggs V Palmer and
Henningsen V Bloomfield Motors.
Riggs V Palmer - the beneficiary under a will had murdered the testator, who was his grandfather, to claim the
inheritance. The law at the time in the US had no provision to exclude such claims by wrongdoers. The court,
however, considered whether it was just and fair to grant the inheritance to the murderer of the testator. They
reasoned out that all contracts are regulated by the fundamental principle of common law that no one shall be
permitted to profit by his own fraud or to take advantage of his own wrong. They refused to give the murderer
the inheritance.
Henningsen V Bloomfield Motors - Henningsen had bought a car and signed a contract which said that the
manufacturer's liability for defects was limited to making good the defective parts. After buying the car, the car
crashed injuring its passengers. Henningsen argued that the manufacturer should not be permitted to rely on
the contractual limitation and ought to be made liable for medical and other expenses of the injured.He was
not, however, able to cite any statute or legal rule in support of his argument. Yet, the court considered a
number of competing principles such as (i) freedom of contract. (ii)the freedom of contract is not so sacred as
not to admit of any qualification, (ii) the manufactures' obligation to consider the safety factor in the
manufacture of passenger vehicles and, (iv) courts should not permit themselves to be used as instruments of
inequity and injustice. A number of such principles arose, for and against, each party to the action. The court
had to assess the strength of each principle against the competing principles, and at the end, the court granted
relief to the claimant.
If, in such an instance, two competing legal rules came to the forefront, one rule would cancel out the other,
but in the case of principles, the principles that were not taken into account in arriving at the decision, would
remain valid to be applied in another case.
Principles could be discovered by judges engaging in ‘Constructive Interpretation’. Constructive interpretation

is a methodology for interpreting social practices, texts and work of art. The distinctive feature of this is that it
is argumentative. The process of constructive interpretation is made up of three analytical stages: (1) Pre-
interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant
identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter
settles on some general justification for those elements identified at the pre-interpretive stage. At the post-
interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the
justification he accepts at the interpretive stage.
In Dworkin's theory, there are two basic elements of law, one is a retrospective element, which he calls "fit",
and the other is a prospective element, which he calls "justification". Furthermore, Dworkin points out that in
exercising the function of these two elements, judges are required to construct a theory of law which can both
fit past legal decisions and makes the law as good as possible. In doing this, the judges are required to search
out legal principles which have been previously mentioned in the historical and social characteristics of the legal
system and then improve the law for the future by "making it more coherent”. Hence, we can say that according
to Dwokin's theory, in dealing with a certain case, the judge should try to interpret the law in a way which
promotes the coherence of the legal system as well as possible. In other words, it is to say that an interpretation
which is the most coherent to legal system is much better than an interpretation-which makes the legal system
less coherent. This implies that when interpretation is concerned, there exists a certain tension between "what
is presented by the existing "positivist" material and what is the best way to interpret such material from a
moral point of view."
For Dworkin the judges’ discretion is weak, because they are constrained and he believes that judges only ‘find
law’ and not ‘make law’. So he opposes judicial discretion as, (1) It is contrary to the democratic ideal of
representation (2) Judge made law is retroactive and creates new duty after the event.
Law as integrity requires judges to treat the techniques that they use in interpreting statutes and measuring
precedents not simply as tools handed down by the legal system, but as principles they assume can be justified
in political theory, and when that is in doubt they construct a theory of the system to better them.
To Dworkin, no mortal judge can or should try to articulate his instinctive working theory or make theory so
concrete and detailed, that no further thoughts will be necessary case by case. He must threat any general
principles or rules as thumb he has followed in the past as provisional and stand ready to abandon these in favor
of more sophisticated and searching analysis when the occasion demands. It is nevertheless possible for any
judge to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands
of him. Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies easy cases
as well as hard cases and it also shows why they are easy. So easy cases are, for law of integrity, only special
cases of hard cases, and, to Dworkin, we need not ask question when we already know the answer. The process
of adjudication inherent in the theory of law as integrity yields right answer to question of law. For Dworkin, in
most hard cases there are right answers to be hunted by reason and imagination.
As a consequence of this conception of law, lawyers are invited to search for an answer in legal materials using
reasons and imagination to determine the best way to interpret legal data. It is therefore possible for lawyers
to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of
him.
09. SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
The main subject matter of sociology is Society. Sociology is the study of society, human behavior, and social
changes. And jurisprudence is the study of law and legal aspect of things. The Sociological school of
Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a
social phenomenon because it has a major impact on society. The main feature of Sociological school of law:
1. Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract
content.
2. They consider law as a social institution essentially interlinked with other scientists and the direct impact
of the law on society with its formation according to social needs.
3. Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical
jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like the functional aspect of law or
defining the law in terms of courts’ rulings and decisions with a realistic approach of law.
The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert Spencer, Ihering,
Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as founding the father of the
sociological school of law.
August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the Comte and he
described Sociology as a positive science of social facts. He said that Society is like an organism and it could
progress when it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which
human society maintains itself and progresses. After Comte, many Writers and Jurist tried to connect the society
and law together and find a link between law and sociology.
Meaning of Sociological school of Jurisprudence:
The idea of Sociological School is to establish a relation between the Law and society. This school laid more
emphasis on the legal perspective of every problem and every change that take place in society. Law is a social
phenomenon and law has some direct or indirect relation to society. Sociological School of Jurisprudence
focuses on balancing the welfare of state and individual was realized.
In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal development
lies not in legislation, nor in the juristic decision, but in society itself.”
Sociological School of Jurisprudence studies the relationship between the law and sociology.
Rudolph Van Ihering
Rudolph Von Ihering legal philosophy is known the ‘Jurisprudence of interests ‘which emphasises sociological
aspects of law. The main tenets of Ihering’s jurisprudence of interests are as follows:
Law is result of constant struggle:-Ihering’s pointed out that the origin of law is to be found in social struggles,
he accepted that the role of is to harmonise conflicting interest of individuals for the purpose of protection of
the interest of the society as a whole.
Law is to result of Constant Struggle:-Ihering considered law as a means to an end. The ultimate end of law is
social purpose are not the individuals for the purpose of protection of the interest of the society as a whole.
Law is to serve a social purpose:-Ihering considered law as a means to an end. The ultimate end of Law is social
purpose are not the individual purpose or interest. It is the duty of the state to promote social interest by
avoiding a clash between the individual and social interest. He even justified coercion by the state for the
purpose of protection of the social interest.
Law alone is not a means to control the society:-Ihering made it clear that law alone was not the means to
control the social organism. There are some other conditions such as climate, topography etc. However there
are certain aspects of social life which can be regulated and controlled exclusively by the intervention of law,
such as raising of taxes and revenues. Like Bentham, Ihering also defines ‘Interest’ in terms of pleasure and
pain, that is pursuit of pleasure and avoidance of pain may be called as’ Interest’. It is mainly for this reason that
Ihering’s theory has been called as ‘Social Utilitarianism’. He considers punishment as a means to a social
end. He is opposed to retributive penal policy. Ihering’s Contribution to the science of Jurisprudence has been
acknowledged by Friedman who calls him the ‘father of modern Sociological jurisprudence’. Ihering traced the
development of various legal systems by adopting comparative method of study and came to the conclusion
that law develop by conscious efforts . He was a critic of Savigny’s historical theory and natural law theories
propounded by his predecessors.
Ihering laid the foundation of modern sociological jurisprudence by this insistence on treating law as one of the
important factors to control the social organism. According to him i) Law has a coercive character ii) it has only
a relative value and iii) it has to be evaluated in the social context. Thus he treated law as an effective instrument
for the attainment of social purpose. His theory was later developed by Dugit, Rosco Pound and others.
Auguste Compte
August Comte was a French Philosopher. The term “Sociology” was first used by the Comte and he described
Sociology as a positive science of social facts. He said that Society is like an organism and it could progress when
it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which human society
maintains itself and progresses. After Comte, many Writers and Jurist tried to connect the society and law
together. And tried to find a link between law and sociology.
Max Weber
Max Weber was born in Prussia, which became a part of Germany. He was born into wealthy and influential
family. So he was exposed to great scholars and politicians at the time.
Weber focused on the historical development of major civilizations in the world and the emergence of
Rationalism and Capitalism in the Western society. He also sought to respond to Marx's assertion that law is an
instrument of class domination. Weber's methodology consisted of studying individual behaviour and motives.
This approach stands in contrast to the position of Emile Durkheim who focused on groups or collectivities of
people. Weber urged that for sociological purposes there is no such thing as a collective personality. He called
his method of enquiry ‘Verstehen’ which focused on understanding the mental states of individuals participating
in various activities and on the formulation of ideal types or models which could be used as a kind of yardstick
to compare and evaluate actual situations.
He began his investigation by looking at states and how and why people obeyed their laws. He identified, just
as Austin did, that force was a major contributory factor in obtaining the subjects' obedience to law. He also
found that some degree of moral support from the subjects was necessary to sustain any authority in the long
run, which legitimised the domination. He does in fact say that the continued exercise of every domination
always entails some successful claim to legitimacy. Domination meant the imposition of one's will on another,
whether the latter consents or not. "Legitimation" implied the reasons for acceptance of the domination or
grounds for obedience. Weber identified three types of domination, with three different grounds on which
demands for obedience were based.
● Traditional – obey because of the sanctity of customs and traditions
● Charismatic – obey due to the sanctity of leader or prophet/ religious leader
● Legal rational – obey as rulers have a legal right to rule and issue commands
However he has not given fear or force as a ground for obedience.

He has divided the methods and procedures regarding decision making under above types of domination into
two areas; rational & irrational
● Rational- legal actions guided by rules

● Irrational – failure to guide by rules
These two areas again divided in to two sections; formal and substantive
Rational Irrational
Formal Subtantive Formal Substantive
E.g. Trial by ordeal E.g.

E.g. Khadi justice E.g. legal
or oracle Ideology/Religion
According to weber there was a two way interaction between law and economics; economics influencing law
and vice versa. His methodology have been used and reworked many sociologists to approach a wide range of
subjects.
Emile Durkheim
Durkheim believed that society exerted a powerful force on individuals. According to Durkheim, people’s norms,
beliefs, and values make up a collective consciousness, or a shared way of understanding and behaving in the
world. The collective consciousness binds individuals together and creates social integration. Durkheim saw
increasing population density as a key factor in the advent of modernity. As the number of people in a given
area increase, so does the number of interactions, and the society becomes more complex. As people engage
in more economic activity with neighbors or distant traders, they begin to loosen the traditional bonds of family,
religion, and moral solidarity that had previously ensured social integration. Durkheim worried that modernity
might herald the disintegration of society.
Simpler societies are based on Mechanical solidarity, in which self-sufficient people are connected to others by
close personal ties and traditions. Modern societies are based on Organic solidarity, in which people are
connected by their reliance on others in the division of labor. Although modern society may undermine the
traditional bonds of mechanical solidarity, it replaces them with the bonds of organic solidarity.
In the Elementary Forms of Religious Life, Durkheim presented a theory of the function of religion in aboriginal
and modern societies and described the phenomenon of collective effervescence and collective consciousness.
Durkheim has been called a structural functionalist because his theories focus on the function certain
institutions (e.g., religion) play in maintaining social solidarity or social structure.
Rosco Pound
Roscoe Pound who urged that law should be looked upon as a form of social engineering, whereby the
different, conflicting interests should be balanced to prevent a collapse of the social structure. He is credited as
being the pioneer of sociological jurisprudence. He came to the limelight with his address at the annual
conference of the American Bar Association in 1907, on the 'Causes of Popular Dissatisfaction with the
Administration of Justice'. In his speech, he faulted the judicial system for its over emphasis on mechanical
jurisprudence.
He adopted Rudolf von Ihering's view, that law should be a reconciler of conflicting interests. 'An interest' was
defined as 'a demand or desire which human beings individually or through groups or associations seek to
satisfy’. Such interests were classified into three groups namely; individual, public and social. A judge or a law
maker should weigh up the relative strengths and weaknesses, of the conflicting interests related to the problem
and strive to strike a balance. In doing so, the conflicting interests should be balanced on the 'same plane', in
the sense that individual interests should be balanced against similar interests, and public interests against
public interests, and social interests against social interests.
Hence, interests should be first transferred to the same plane. If the proper balance is not achieved, the whole
social structure would collapse, just as a building would come down if the construction engineers had not
correctly balanced the relative strengths and weaknesses of the materials used in the construction. The
approach thus advocated by Pound is known as that social engineering, whose aim is to build an efficient social
structure, satisfying a maximum of wants and minimizing friction and waste.
Robert Unger
From the beginning, he saw law as the institutional form of the life of a people and as a place where interests
meet ideals, and spirit struggles with structure. Law is not a separate thing; it is an expression of all society and
culture.
He has opposed the style of legal analysis that now prevails in the United States and increasingly throughout
the world. This analytic procedure reduces the work of legal thought in a democracy to inform and to broaden
the conversation about the institutional present and the institutional futures of society to the narrow business
of deciding how judges and other officials should decide cases. Its theoreticians seek to humanize the world
rather than to change it. Because they do not resist they cannot understand.
The overriding aim of his work in legal theory has been to show how we can use a changed understanding of
law and a revised practice of legal analysis to recover, from the bottom up and from the inside out, the vision
of social alternatives. If we can no longer imagine and realize such alternatives as readymade systems like
‘socialism’, we must find them under other disguises and work them out in other forms. Through his writings
about law, he has tried to show how.
10. CRITICAL LEGAL STUDIES AND REALISM
Critical legal studies (CLS) is a sometimes revolutionary movement that challenges and seeks to overturn
accepted norms and standards in legal theory and practice. CLS seeks to fundamentally alter jurisprudence,
exposing it as not a rational system of accumulated wisdom but an ideology that supports and makes possible
an unjust political system. CLS scholars attempt to debunk the law's pretensions to determinacy, neutrality, and
objectivity. The law, in CLS scholarship, is a tool used by the establishment to maintain its power and domination
over an unequal status quo. Openly a movement of leftist politics, CLS seeks to subvert the philosophical and
political authority of what it sees as an unjust social system. CLS advances a theoretical and practical project of
reconstruction of the law and of society itself. CLS is also a membership organization that seeks to advance its
own cause and that of its members.
CLS was officially started in the spring of 1977 at a conference at the University of Wisconsin in Madison.
However, the roots of the organization extend back to legal realism, a movement in U.S. legal scholarship that
flourished in the 1920s and 1930s. Oliver Wendell Holmes is credited with being the grandfather of CLS with his
various observations in The Common Law (1881).
In the 1960s, many of the founding members of CLS participated in social activism connected to the civil
rights movement and the Vietnam War. Many future CLS scholars entered law school in those years or shortly
thereafter, and they quickly became unhappy with what they saw as a lack of philosophical depth and rigor in
the teaching and theory of law. Roberto Mangabeira Unger, a leading CLS theorist, has described the law faculty
of those days as "a priesthood that had lost their faith and kept their jobs." These young students began to apply
the ideas, theories, and philosophies of postmodernity (intellectual movements of the last half of the twentieth
century) to the study of law, borrowing from fields as diverse as social theory, political philosophy, economics,
and literary theory.
CLS has been largely a U.S. movement, though it has borrowed heavily from European philosophers, including
nineteenth-century German social theorists. And there are several subcategories exist within the CLS
movement: feminist legal criticism, which examines the role of gender in the law; critical race theory (CRT),
which is concerned with the role of race in the law; postmodernism, a critique of the law influenced by
developments in literary theory; and a subcategory that emphasizes political economy and the economic
context of legal decisions and issues. Scholars disagree about the extent to which CLS is a coherent intellectual
movement. Some see it simply as a political position adopted by a disparate group of legal theorists who have
fundamentally different, even contradictory, views. Others emphasize that CLS theorists share a number of
important ideas and approaches that together constitute a new approach to legal scholarship.
First among the basic ideas that CLS scholars tend to share is the notion that law is politics—in other words, that
law and politics are indistinguishable from one another. According to CLS theorists, however, the law is not
separate from the political realm and its disputes. Legal reasoning, rather than being a strong fortress of
objective rationality, is a fragile structure fraught with contradictory and arbitrary categorizations that are
endlessly redefined and reworked. In this view, the law is only an elaborate political ideology, which, like other
political ideologies, exists to support the interests of the party or class that forms it. The legal system, according
to CLS, supports the status quo, perpetuating the established power relations of society. The law does have logic
and structure, but these grow out of the power relationships of society. CLS therefore sees the law as a collection
of beliefs and prejudices that covers the injustices of society with a mask of legitimacy. Law is an instrument for
oppression used by the wealthy and the powerful to maintain their place in the hierarchy.
Realism
In the nineteenth and in the early years of the twentieth century, laissez-faire1 was the dominant creed in
America. This creed was associated, in the intellectual sphere, with a certain attachment to what has been called
“formalism” in philosophy and the social sciences. This was marked by the reverence for the role of logic and
mathematics and ‘a priori’ 2 reasoning as applied to philosophy, economics and jurisprudence, with but little
urge to link these empirically to the facts of life. Yet empirical science and technology were increasingly
dominating American society and with this development arose an intellectual movement in favour of treating
philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism.
In America this movement was associated with such figures as William James and Dewey in philosophy and logic,
Veblen ion economics, Beard and Robinson in historical studies, and Mr. Justice Holmes in jurisprudence.
It is important to note that this movement was especially hostile to the so-called British empirical school derived
from Hume, and to which Bentham, Austin and Mill adhered. For while it is true that these thinkers were
positivist and anti-metaphysical they were for the anti-formalists not empirical enough, since they were
associated with a priori reasoning not based on actual study of the facts, such as Mill’s formal logic and his
reliance on an abstract “economic man,” Bentham’s hedonic calculus of pleasure and pains, and the analytical
approach to jurisprudence derived from Austin. They were particularly critical of the ahistorical approach of the
English utilitarian. Nor, unlike the sociologists of Pounds persuasion, were they interested to borrow from
Bentham such abstract analyses of society as his doctrine of conflicting interests. What these writers in their
various fields were concerned to emphasise was the need to enlarge knowledge empirically, and to relate it to
the solution of the practical problems of man in society at6 the present day. Hence pragmatism attempted to
link truth with practical success in solving problems, and in its more developed form of instrumentalism, Dewey
further emphasized the empirical approach by treating knowledge as a kind of experience arising out of human
activity creating a problem, and which is attained when the problem is solved. Again Veblen emphasized the
importance of studying institutions empirically especially the connection between economic institutions and
other aspects of culture. The new historians stressed the economic forces in social life and the need to study
history as a pragmatic means of controlling man’s future. All of these currents of thought played a vital role in
the gradual movement of the United States from a highly individualist to a form of collective society in the first
half of the twentieth century.
The realist movement in United States represents the latest branch of sociological jurisprudence which
concentrates on decisions of law courts. The realists contend that law has emanated from judges; therefore law
is what courts do and not what they say. For them, Judges are the law- makers. However, modern Realism differs
from sociological school as unlike the latter, they are not much concerned about the ends of law but their main
attention is on a scientific observation of law and its actual functioning. It is for this reason that some authorities
have called Realist approach as the ‘left wing of the functional school’. The contention of realists is that judicial
decisions are not based on abstract formal law but the human aspect of the Judge and the lawyer also has an
impact on court’s decisions. Some quarters feel that realist movement in the United States should not be treated
as a new independent school of jurisprudence but only a new methodology to be adopted by the sociological
school. According to Friedman, the mental founders of the Realist movement in America were Oliver Windell
Homes, Gray, Cardozo and Jerome Frank who emphasized on functional and realistic study of law not as
contained in the statute or enactment but as interpreted and laid down by the courts in their judicial
pronouncements.
Basic Features of Realist School:
Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do
in reaching the final decision in the case before them. In strict sense of the term, realist define law as generalized
prediction of what the courts will do. The main characteristic features of realist jurisprudence as stated by
Goodhart are as follows:
● Realists believe that there can be no certainty about law as its predictability depends upon the set of facts
which are before the court for decision.
● They do not support formal, logical and conceptual approach to law because the Court while deciding a case
reaches its decision on ‘emotive’ rather than logical grounds.
● They lay greater stress on psychological approach to the proper understanding of law as it is concerned with
human behavior and convictions of the lawyers and Judges.
● Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing
uncertainty of law.
● They prefer to evaluate any part of law in terms of its effects.
According to Llewellyn, there is no realist school as such, it is only a movement in thought and work about law.
It presupposes that law is intimately connected with the society and since the society changes faster than law,
there can never be certainty about law. There is no place for idealism in law and therefore, law as it ‘is ‘ must
be completely with reference to a given set of facts to reach a decision, they lay greater emphasis on case law
method of the study of law. Statutes are accepted as ‘law’ only when they have been approved as law by a court
decision.
American Realism
Despite their serious differences, American realism and legal positivism share one important conviction. It is
that we must not confuse the law as it is with the law as it ought to be. They part company on the question of
how we find the law as it is. The positivists, according to Hart, look to established primary rules and to secondary
rules of recognition that designate lawmaking bodies. American realists are sceptical about the degree to which
rules represent the law. They seek to investigate how courts actually reach their decisions, given that rules are
imprecise by nature and the discovery of facts is an imperfect process. Some realists regard law finding as an
exercise in predicting how judges will decide legal disputes.
It is important to note that the separation of law and morals in American realism is more ambiguous than in
legal positivism. Most realists think that the degree of uncertainty inherent in rules allows judges to make moral
decisions. The realists consider this judicial leeway to be a virtue of the law, as it allows greater consideration
of justice. They also wish that courts would use their discretion systematically to improve the law. The realists'
separation of 'is' and 'ought, as Karl Llewellyn observed, is a temporary divorce. The divorce lasts while the
scholars are discovering what courts actually do. The scholars will find that courts actually make moral decisions
clothed in the language of logic. All that the divorce means is that at the initial stage of the inquiry the realists
keep their own views of what the courts ‘ought to do separate from what the courts actually do'. The realists, on
discovering that the courts in fact engage in law-making, recommend that the courts drop their formalistic
pretences and engage in systematic and informed law reform.
Some writers like Jerome Frank have observed two types of skeptics among American realists: rule skeptics and
fact skeptics. Rule skeptics pay more attention to the uncertainties of the rules that make up the law. They are
preoccupied with the work of appellate courts, which are the final arbiters of the law. Fact skeptics are more
concerned with the uncertainties that attend the discovery of facts on which a judgment depends. Their focus
is mainly on the work of trial courts. There are many authors within the school of American realism like Oliver
Wendell Holmes Jr, who was the instigator of the realist movement; Karl Llewellyn, who synthesized much of
the work of the rule skeptics; and Jerome Frank, who was a principal thinker among the fact skeptics.
Scandinavian Realism
American realists were preoccupied with the way law is made in practice, and how it ought to be made. The
central concern of Scandinavian realism is to explain how the law changes the behaviour of people. They seek
to explain scientifically the force of the law, free of the metaphysical element imbedded in traditional
explanations. Their scientific inquiry leads to the finding that the force of the law is produced by the
psychological effects caused by the ritualistic modes of lawmaking, such as the process by which parliament
approves legislation or a judge pronounces a judgment. So, did the Scandinavian realists who pursued a non-
mystical account of the law's force end up with a mystical explanation? The answer depends on what we mean
by facts. If the psychological effects produced by legal procedures and concepts are facts, then the realists can
justly claim to have provided an empirical explanation of law. Scandinavian realism is known in the Anglophone
world mainly though the writings of four scholars who best represent this important school of thought: Axel
Hägerström, Karl Olivecrona, Vilhelm Lundstedt and Alf Ross.
11.PUBLIC INTEREST LITIGATION
Public Interest Litigation (PIL) is a practice or a technique that focuses on the citizens of the country. The main
purpose of this school of jurisprudence – PIL is to protect the people of the nation.
The public interest litigation gets initiation by a group of people. These people belong to the country where the
filing of the litigation happens. Also, it is important to understand that PIL is a practice that allows the following
to file for litigation: an individual; or a group of people.
Moreover, it is also important to note that the person or people who are filing the petition should not possess
any interest in the litigation. In other words, the petitioners should not file a litigation petition keeping in mind
a personal agenda. The Court accepts the litigation only when the plea comes from a large public interest.
Some of the critical importance and scope of the PIL are as follows:
● Public interest litigation provides a wider scope promoting the right to equality.
● Not only does it promote equality, but it also ensures right to life and personality. Part III of the Constitution
of India guarantees right to quality, life, and personality.
● PIL is solely responsible for providing relief and remedies of the writ jurisdiction.
● The public interest litigation practice functions as an effective instrument for changing society and ensuring
welfare.
● Also, with the help of the public interest litigation, anyone can seek remedy on behalf of the under-
privileged class by introducing the public interest litigation.
Locus Standi
Any individual or a group of people can file for a PIL if they prove to the Courts that they are not filing the
petition for their personal agenda. Therefore, anybody who is a part of a society and is facing an issue can file a
PIL against the Government and not another individual or entity.
Wijesiri V Siriwardena – to apply for a mandamus it is not necessary to have a personal interest but it is sufficient
if the applicant can show a genuine interest in the matter complained of and he comes to the court as a public
spirited person.
Somawathie V Weerasinghe – Kulatunga J in this case recognized the permission given by article 126 of the
constitution to any person either by himself or through an attorney-at-law on his behalf to petition the Supreme
Court in respect of violation of fundamental right.
Sriyani Silva V Iddamalgoda – court permitted related parties to petition to court specially in instances where
the person whose right affected was incarcerated or dead.
Bulankulame V Secretary Ministry of Industrial Development(Eppawela case)- The petition was filed by a group
of persons resident in Eppawela, North Central Province, challenging the government’s decision to enter into
an Agreement with Freeport Macmoran to mine a greater part of the rock phosphate in the area. The
petitioners argued that such mining affected their rights, their environment and the national interest. The
Respondents argued that the petitioners had no standing to bring such an action. Rejecting the objection, the
court held that the petitioners had sufficient standing in a matter such as this as it affected their lives.
Egodawele V Dayananda Dissanayake - the Court permitted the petitioner to proceed with a petition on the
basis that the petitioner’s fundamental rights were infringed as others could not freely express their franchise.
In this instance the petitioner’s complaint was not that the petitioner could not vote but that by others not
being able to vote there was no free and fair election. In this case also an objection was taken to the standing
of the petitioner to bring such an action. It was argued in objection to the petition that the only persons that
could complain were the candidates at the election and that there was a mechanism through an election
petition to challenge an election that was not free and fair. The Court while recognizing that that an election
could not be set aside in a fundamental rights case, overruled the objection and granted the petitioner a
declaration that his rights were infringed as there was no free and fair election on the basis that the case
involved not only the rights of the petitioner but the rights of the public.
Environmental Foundation Ltd V Urban Development Authority - a corporate body acting in the public interest
petitioned court in respect of the proposed privatization of the management of the Galle Face Green.
Vasudeva Nanayakkara V K.N. Choksy and Others(Lanka Marine Service (LMS) Case) - the petitioner a
politician and social worker filed the case in the public interest challenging the privatization of Lanka Marine
Services Limited, a profit making and taxpaying subsidiary of the Ceylon Petroleum Corporation, to John Keels
Ltd, without the approval of the Cabinet of Ministers. The Court struck down this transaction as illegal and
held in regard to standing that “… where the executive being the custodian of the Peoples power act ultra
vires and in derogation of the law and procedures that are intended to safeguard the resources of the State, it
is in the public interest to implead such action before Court”.
Mendis and 9 Others v. Kumaratunge and Others(Waters Edge case) - The petitioners of this case, also filed in
the public interest, challenged the decision to acquire land for a public purpose and thereafter to sell such
land to a private entrepreneur to develop a golf course named “The Waters Edge”. The Court noted that a
public purpose required as its primary object, general interest of the community and that in this instance the
land acquired had not been put to such use. The Court ordered that the land be returned to the State and that
it be put to use for the benefit of the public.
Arguments against PIL
▪ PIL actions may sometimes give rise to the problem of competing rights. For instance, when a court
orders the closure of a polluting industry, the interests of the workmen and their families who are
deprived of their livelihood may not be taken into account by the court.
▪ It could lead to overburdening of courts with frivolous PILs by parties with vested interests. PILs today
has been appropriated for corporate, political and personal gains. Today the PIL is no more limited to
problems of the poor and the oppressed.
▪ Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic or environmental
problems can take place through the PILs.
▪ PIL matters concerning the exploited and disadvantaged groups are pending for many years. Inordinate
delays in the disposal of PIL cases may render many leading judgments merely of academic value.
▪ PIL is trying to wither away the doctrine of separation on of power.
12. HISTORICAL AND ANTHROPOLOGICAL JURISPRUDENCE
Historical Jurisprudence
Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is
marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking,
history does not completely fall within the definition of either positivism or natural law. Historical events, like
the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do
historical events embody eternal principles of morality, although they may be the product of clashing moral
views. Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for
historical jurisprudence in their legal philosophy.
In the seventeenth century, leading English jurists introduced into the Western legal tradition a new philosophy
of law, later called historical jurisprudence, which both competed with and complemented the two major
schools of law that had opposed each other in earlier centuries, namely, natural law theory and legal positivism.
The basic tenet of the historical school is that the primary source of the validity of law, including both its moral
validity and its political validity, is its historicity, 6 reflected especially in the developing customs and ongoing
traditions of the community whose law it is. Historical experience is thought to have a normative significance.
This theory was adumbrated by Edward Coke, developed by John Selden, and articulated by Matthew Hale, who
integrated it with the two older theories. In the late eighteenth and early nineteenth centuries, the three
theories split apart and the historical school emerged as an independent legal philosophy.
Although historical jurisprudence, which predominated in Europe and the United States in the late nineteenth
and early twentieth century, has been ignored or repudiated by most contemporary American legal
philosophers, it continues to play an important role in the thinking of American judges and lawyers, especially
in constitutional law and in areas of law in which common law tradition still prevails. Although the foundations
of historical jurisprudence were laid in preceding centuries, its full-fledged articulation only emerged in the
context of the English Revolution of 1640-1689, for whose ideals of judicial independence and parliamentary
supremacy Coke had fought-in the name of history-both on the bench and in the House of Commons, and in
which Selden and Hale played important roles. Historical jurisprudence had important connections both with
Puritan theology and with developments in the natural sciences. In legal science, it was reflected particularly in
the development of the doctrine of precedent. In the eighteenth century, it was given expression in the writings
of William Blackstone and Edmund Burke, and in the nineteenth century it was finally established as a separate
school of jurisprudence by the great German jurist Carl Friedrich von Savigny.
Anthropological Jurisprudence
Anthropological jurisprudence, which first developed as a specialized discipline in the nineteenth century, it has
challenged many of the paradigms of the positivist view of law and, most relevantly for this study, has produced
the various theories of legal pluralism, The legal pluralist approach. This section discusses its other major
contributions to the study of non-state justice systems and also highlights its current limitations.
The evolutionist school dominated legal anthropology. It was believed widely that all societies passed through
clear and inescapable stages of development, distinguished by increasing complexity, and this was extended to
include stages of legal development. Various legal systems were studied and compared with the aim of charting
a general evolutionary direction, from a primitive to a civilized state. The ethnocentric bias was such that
Western European states represented the highest stage of development—a belief that was very convenient for
the imperialistic policies of the European powers.
Since the late nineteenth and twentieth century’s, there have been three separate periods in the development
of the field of legal anthropology. The first was the publication of the major empirical monographs before the
1960s that were mainly 8 historical, ethnographic descriptions of a single ethnic group and were concerned with
seeking to understand whether all societies had law or its equivalent. A small number of monographs, including
Maine’s Ancient Law (1861), Malinowski’s Crime and Custom in a Savage Society (1967) and Llewelyn and
Hoebel’s The Cheyenne Way (1941), provided the baseline for the discipline.
Friedrich Carl von Savigny
Friedrich Carl von Savigny (1779-1861) was the founder of the older, romantic branch of the German historical
school of law. He was born in Frankfurt am Main of an ancient and wealthy noble family from Lorraine. He began
career at the University of Marburg, teaching Roman law, and became professor of Roman law at Landshut. Two
years later, he was appointed as the professor at University of Berlin, where for three decades he had a most
successful and influential career in legal teaching and research. He was also appointed as the Prussian Minister
of Justice in 1848. His major works are:
1. Law of Possession (das recht des bestiges), 1803
2. The History of Roman law in Middle Ages in six volumes, 1818-31
3. System of Modern Roman law, 1840-49
4. Contracts, 1853
What is Volksgeist?
Volksgeist is the concept of law propounded by the Savigny. The term Volksgeist is made by the two word Volks
means people and geist means their common will. It means Volksgeist means the law is a common will of the
people (spirit of the people). In a simple sense, Volksgeist is a general and common perception of the people or
the spirit of the people. The main idea of Savigny behind this theory was that law is an expression of the will of
the people and it doesn’t come from the deliberate legislation and it develops as the consciousness of the nation
arises. The core of Volksgeist was that a legal system of a nation is mainly influenced by the historical culture
and traditions of the people and its growth was located in their acceptance.
As mentioned above, Savigny believed that the evolution of law can only be made by taking account the past
consideration and without doing that it creates more amounts of confusion rather to solve it. According to
Savigny, the origin of law lies in the Volksgeist. For the purpose of this, he made a whole new school known as
the Historical school of Jurisprudence.
Theory of Savigny can be explained in the following heads:

a) Law prevails basically in society:
According to the Savigny, the law is the product of the people’s life living in a particular society and it is the
outcome of a culture of a society. It embodies the whole history of a nation’s culture and reflecting inner
convictions that are rooted in society’s common experience. The Volksgeist gradually drives the law to develop
over the course of history. Thus, according to Savigny, a thorough understanding of the history of people/society
is necessary for studying the law accurately.
b) Law develops like a language:

Savigny stated that law develops like a language. He said that law is a national character and develops like a
language in the nation, which not only binds people with belief and opinion in a group but also grows with the
development of society. The development of both elements goes hand in hand. It has no different existence,
which follows them but considers as a one being. History is proof that law is developed according to the pre-
existing manners in society and approved by the national character, like language.
c) Law is a continuous and regular process:

Law is a continuous and unbreakable process bound by the common culture and beliefs of society, not the
product of the day. It develops by the regular and the continuous process of society. Customs and usages in
society are given common consent to be followed by the society in the beginning and the people follow them
without any hesitation, insured willingly and those not follow become solitude in the society and finally, all have
to become common and this the thing takes the shape of law on the society.
Savigny’s opinion for codification of law:

Savigny was against the codification of the law. He thinks that the development of the law should be on the
basis of the historical knowledge and not by the arbitral legislation.
The initial development of law is natural and later on it is developed by jurists:

He stated that in the early stages law develops naturally/spontaneously according to the internal needs of the
people but after people reached a certain level of civilization, different kind of national activity developing the
law accordingly.
Henry Maine
The nineteenth-century evolutionism in legal theory set initially by Savigny was nurtured with the publication
of Ancient Law in 1861 by Sir Henry Maine. Sir Henry Maine sets the set the stage for anthropologists and
sociologists like Durkheim, Morgan, Sorokin, Zimmerman and Max Weber who reconstructed their typologies
of society on the approach and method of Sir Henry Maine. These varying typologies of society are essentially
indicators of historical growth as to how the communities evolved.
Sir Henry Maine came to a conclusion through his comparative study that the development of law and other
social institutions in almost all the ancient societies related to Hindu, Roman, Anglo-Saxon, Hebrew and
Germanic communities were more or less the same as a palace is.
Sir Henry Maine was a British comparative jurist and historian. He is famous for the thesis outlined in his
book Ancient Law that law and society developed ‘from status to contract.’ He was a Cambridge Apostle. Shortly
afterward, he accepted a tutorship at Trinity Hall. In 1847, he was appointed a regius professor of civil law, and
he was called to the bar three years later, he held this chair till 1854. Meanwhile, in 1852 he had become one
of the readers appointed by the Inns of Court.
Stages of Development of law:
1. Law made by the ruler under divine inspiration:-
In the beginning, the law was made by the command of the king believed to be acting under the divine
inspiration of Goddess of justice. Who was above the law and whose commands must be obeyed by the
inferiors?
2. Customary Law:-
In the next stage, the office of the King or Judge was inspired by the heads of the councils. Priest became a
repository of law which circulated the King’s power and claimed the sole monopoly of knowledge. Therefore,
the priest class tried to preserve the customs of race or caste intact. Since the art of writing was not invented,
the customs of the community became law for those who were united with blood relations. In this way, we
notice a special event. The concept of custom is a development of the theory of Maine emerging behind those
esters or judgments.
3. Knowledge of law in the hands of Priests:-
In the next phase of the development of the law, in order to implement and execute the law inspired by the
Priest class, the King’s right claimed to be learned in law as well as in religion. The priest class claimed that they
remembered the rules of customary law because the art of writing was not developed till then.
4. Codification:-
Then comes the era of codification marks the fourth and perhaps the final stage of development of law. With
the discovery of the art of writing, a section of scholars and jurists came forward to condemn the authority of
the priests as law officials. He advocated the codification of the law to make it accessible and easy to know. It
broke the monopoly of the Priest class in matters of administration of law. The most important codes of the era
were Rome’s Twelve Tables, Codes of Manu which were a mixture of moral, religious and civil laws, Twelve
Tables in Rome, Attic Code of Solomon, Hebrew Code, and Codes of Hammurabi etc.
According to Henry Maine societies are two types; Progressive Societies and Static Societies.
Progressive Societies:-According to Henry Maine, those societies which go beyond the fourth stage as
developing their laws, by new methods are called progressive societies. Progressive societies develop their laws
by the three methods namely; Legal Fiction, Equity, and Legislation.
Static Societies:-According to Maine, when the primitive law has been embodied in a code, there is an end to its
spontaneous development and such communities or societies which do not modifying or go beyond the fourth
stage are called static societies.
▪ Application of history in legal practice & judicial decision making
- Stare decisis
- Constitutional law
- Special laws – personal laws (Kandyan law, Muslim law and Thesawalamai law)
- Judicial concerns on native historical and anthropological behaviors – Eppawala Case and Royal Park
Murder Case
THEORIES OF PUNISHMENT
The immediate consequence that follows a criminal act is known as punishment. Thus, punishment is defined
as suffering, loss, pain, or any other penalty that is inflicted on a person for the crime by the concerned
authority. There are different theories of punishment in law.
I. Deterrent Theory of Punishment:
Under the deterrent theory mostly the punishment which is granted against a criminal is such which is difficult
in nature. The very meaning of deterrent is discouraging and so from this it can be inferred that under this theory
the punishment which is granted against the wrongdoer is such which can discourage the criminal from
committing such a crime in future again. Ultimately, under the deterrent theory the very aim of the punishment,
is to create some sort of fear in the minds of the wrongdoer and this can be done by either imposing penalty on
the person or by providing an exemplary punishment against the offender that can keep him away from
committing any crime in the future.
The aim of this theory is to punish the criminal, by establishing penal discipline, so that no person which can be
either the offender or any other person, can ever even think of committing a crime which was committed by
the wrongdoer who has been punished under this theory. Deterrence theory is considered to be a significant
aspect of criminal justice mainly because it helps in not only controlling crimes but also protecting the interest
of the society by establishing a sense of fear among the criminals of committing serious a crime in future again.
It shall be understood that this theory was used extensively during the mediaeval period in England, where in
severe as well as extremely insensitive punishments were inflicted upon those who had committed only minor
or frivolous crimes. For example in case if a person committed the crime of stealing then he or she was subject
to a punishment which was either death or whipping. However in India, this theory was applied during the
Mughal period under which for petty offences the wrongdoer was mainly killed or mutilated.
II. Theory of Retribution:

Retribution theory is considered to be the most ancient as well as old theory that can justify the very concept
of punishment. This theory follows the principle of: “you hurt me, I will hurt you back. Henceforth under the
theory of Retribution basically the punishment which is granted against the wrongdoer shall be equivalent or in
proportion to the crime which has been committed by the accused. The very need for applying the Retribution
theory for granting punishment during the old as well as even in the present Era, is mainly to achieve a sense of
social security by granting a punishment against the criminal, which can provide justice to the society and also
act as an example for any other person who may be thinking of committing an offence which is similar to the
one for which a person has been given Retribution punishment. By applying this theory the very balance is
achieved within a legal system since then almost all crimes have a valid punishment which is at par with the kind
of illegal Act that was committed by the offender or the criminal. The notion of expiation which also means
blocking of the guilty is directly related to the attribute of theory under which the suffering that is usually
inflicted upon the accused is absolutely appropriate as well suitable to the crime committed by him.
Those legal practitioners which support this theory mainly find it appropriate to punish the criminal with such a
punishment that could make him suffer to the same extent to which the victim of the crime suffered. Various
legal researchers also think, that by not implementing this while granting punishment against the criminal, two
significant problems could occur, one being that the victim may seek revenge from the criminal by himself or
victim may lose trust within the system and even refuse to file a complaint Thus, hampering the ability of the
state to provide justice to the victim and punishment to the criminal.
Henceforth, the very aim of a Retributive punishment is to eliminate the instinct of taking revenge within the
mind of the victim as well as even within the society, because whenever a crime is committed by someone
against another person then not only the victim is someone who is disturbed or affected from such crime but in
fact the whole society has the same sense of retaliation which can only be fulfilled legally through a retributive
a punishment and not by taking revenge personally. Henceforth, it is imperative to understand that retribution
is a theory that makes a punishment which is otherwise considered evil as justified will in the eyes of law, but
when revenge is taking instead of punishment then in that case the whole purpose of punishment eliminates
and makes the person who has taken such revenge as the accused.
Also, it shall be noted that in the modern era this kind of punishment is not really supported much by the legal
Scholars or practitioners and the key reason is that neither this is the kind of punishment which is considered
wise nor it is desirable to punish a criminal with the same kind of punishment which is at par with the crime
which he has committee.
III. Preventive Theory of Punishment:

As per the preventive theory, the punishment which is granted to the criminal shall not be revenge for the crime
but rather it shall prevent crime. The very objective of this theory is to protect the society from the criminal and
so this is a key reason because of which it is believed under this theory that the offender shall be put behind
bars, for giving the punishment of imprisonment so as to remove the potential danger that is caused because
of his presence within the society. Through the various application of the preventive theory, the offender is
disabled by the state from committing any further offence or repeating the offence which he has already
committed by inflicting punishment upon him like death, exile or even forfeiture. Henceforth a criminal can be
effectively prevented from committing a similar or a more heinous crime by being imprisoned for life without
remission.
However, there are certain critics of the theory which believes that the said theory is not effective enough to
prevent the commission of such crimes in the future and that is because when a criminal is sent to jail, then he
gets under the undesirable impact of becoming even worse of an offender, because of being put in jail with
other criminals who are already as bad of an offender as him. However, it has also been highlighted by some
researches that by putting an offender in prison the very motive of preventing him from committing any other
crime against the society is fulfilled and this is done easily by eliminating his presence within the society. Thus
finally disabling the crime and the criminal.
IV. Reformative theory:
With development in criminal science a substantial change has been bought within the thinking of criminological
researches. Therefore today under the reformative theory various legal researcher believe in analyzing the
entire social and economic background as well as other related factors which can ultimately lead to the
commission of heinous or barbaric crimes by criminals. As per the supporters of this theory, a criminal shall not
be studied in isolation of his circumstances because he does not cease to be a human being when he commits
a crime and so it is important to study what actually led him to commit such a crime against the other human
being.
The critics of this theory state that if criminals of barbaric crimes are sent to the jail for reformation, then jails
will no more be left as a mode of punishment and rather they will become rehabilitation centers through which
the criminal will be reformed and transformed into a new individual. Henceforth as per the critics the very
significance of punishing an individual with imprisonment will eliminate, because prison itself will become a
friendly as well as familiar place for every criminal out there.
However, those who support reformative theory believe that a criminal shall serve sentence to get free
reformed and change as an individual because the key aim of a punishment is to change the mind or thinking of
a person who has committed crime and transform him into a better human being who can be taught some sort
of art and craft within the prison itself. Reformative theory may not be supported by many legal Scholars or
researchers, but it is an absolutely suitable for a country
V. Compensatory theory:
According to the theory of compensation, the object of punishment must not be merely to prevent further
crimes but also to compensate the victim of the crime. According to Dr. Sethna, “the main spring of criminality
is greed, and if the offender is made to return the ill-gotten benefits of the crime, the spring of the criminality
would be dried up.”
❖ Criticisms against Theories of Punishment

Reformative theory - Reformative theory expects better infrastructure and facilities in prison, proper co-
ordination between different discipline and persistent effort on their part to mould criminal. It requires huge
investments which poor country cannot afford it. Millions of innocent people who have high regards for law are
finding difficult to get basic amenities postulates ethical justification for providing better facilities inside prison.
Moreover, the rationality of the theory is more towards incentives for the commission of crime rather than
prevention. Reformation can work out on those people who can be reformed, there are people who cannot be
reformed like hardcore criminal, highly educated and professional criminals. This theory neglects potential
offenders and persons who have committed crime but not within the arms of law. Further, it overlooks the
claims of victims of crimes. Corrupt social environmental is responsible for crime but not individual
responsibility, is the philosophy of reformative which is hard to digest.
Preventive theory - The delay in inquires or investigation by the public authority makes sanction ineffective. The
effectiveness of sanction is further scaled down as courts grants bail to accused on the ground that accused
presumed to be innocent until guilt is proved. There is considerable dispute, as to who should be restrained and
how long. Confinement should involve the least restraint needed to furnish reasonable protection against
crime.59The naked truth is that protection can never be absolute. Certain amount of crime is inevitable and
society must take chance against them. Effective incapacitate depends upon various factors like, criminal’s
history, background, and personality. In spite of all these things it is not possible to predict accurately whether
or not a particular criminal will repeat crime. Incapacitation should not be disproportionate, wasteful and
expensive.60Unless restraint is either permanent or is coupled with a meaningful rehabilitative program
imprisonment will not restrain criminal conduct, but will merely postpone it. Incapacitation affects ability and
an opportunity to commit criminal act, but has no influence on emotional and criminal intent and expectation
of profit. Therefore, incapacitation is being temporary than permanent.
Deterrent theory - It is thought that punishment would deter offenders, in reality it hardens the criminals
because once criminals accustomed with punishment, deterrence loses its strength on such criminals.37 Under
these circumstances, reliance on rehabilitation and prison reformation would give better result. The most
effective deterrent punishment is death sentences, whereas imprisonment has not only deterrent value but
reformative also. The strongest criticism against deterrent is that it has failed to reduce crimes. Should it be
given up? The conclusions are based on the percentage of crime rate which are available. The tragedy of
deterrent theory is that number of criminals it has failed to deter measures its efficacy but not by number it has
in fact deterred.
Compensatory theory - Compensation is payable to victim of the crime only when fine is not imposed as part of
sentence which is unfair because amount of fine is meager compare to the compensation. Moreover, incurred
expenses of prosecution are deducted from the fine and remaining amount is paid to victim of crime, therefore,
victim gets small amount that would not amount to justice. Courts have generally restored to sentence of fine
in addition to imprisonment but compensation provision is invoked seldom because power is discretionary.
Further, there is injustice, when ordered payment of compensation is not complied by accused; there is no
provision in law for imposing penalty for such non-compliance. On the other hand, non-payment of fine may
lead to extension of period of imprisonment.
Retribution theory - Many of those who criticize retribution argue that the philosophy is outdated. As societies
become more civilized, they should outgrow the need or desire for revenge. Others note that punishing
criminals just because they have acted inappropriately does not address any underlying issues that may have
led to the crimes in the first place. Some offenders need treatment rather than punishment; without treatment,
the cycle of crime will continue unabated. Other critics note that it is not feasible to establish a satisfactory scale
of punishments for crimes. Even if such a scale could be developed, it would probably fail to consider offenders’
differing roles and motivations in committing crimes. Yet such considerations are important to retributionists,
given their focus on deserved sanctions rather than punishment for its own sake. Finally, a few critics note that
doing unto others what they have done unto you is not as fair as it may initially seem. The victim suffered only
the injury, but the offender must suffer both the injury and the anxiety of waiting for the injury to be imposed
as punishment.
❖ Kinds of Punishment
1. Capital Punishment / Death Penalty -
In the history of punishment, capital punishment/death penalty has always occupied and very important place.
In ancient times and even in the middle age, sentencing of offenders to death was very common kind of
punishment. Even for what might be considered as minor offenses in Modern Times, death penalty was
imposed. Death sentence has always been used as an effective punishment for murderers and dangerous
offenders. It has both deterrent and preventive effect. The justification advanced in support of capital
punishment is that it is lawful to forfeit the life of a person who takes away another's life. The killer deserves
execution under this mode of punishment, legal vengeance solidifies and social solidarity against lawbreakers
and therefore it is legally justified. It is the most serious nature of punishment. Some countries have abolished
it.
2. Deportation -
Another way of punishment is the deportation of corrigible or dangerous offenders. Deportation of criminals is
also called banishment. Corrigible and hardened criminals where generally clamored to far off places with a
view to eliminating them from the community. In England, war criminals there usually transported to distant
Astro-African British colonies.
In India, this method also known as transportation, popularly known as Kalapani and abolished in 1995. It still
persists in Mini-form popularly called as externment. The object of externment offender is to dissociate him
from his surroundings so as to reduce his capacity to commit crime.
3. Corporal punishment -
Corporal punishment was very common until late 18th century. Corporal punishment includes modulation,
flogging (or whipping) and torture etc.
3.1 Flogging - Dictionary meaning of word flogging means, "To whip or to beat with strap/stick as punishment.
In middle ages, Whipping was the commonest form of punishment. The instruments and methods of flogging
differ from country to country. In Russia instrument used for blogging was constructed of a number of dried
and hardened thongs was construed of rawhide, interspersed with wires having hooks in their ends, which
could enter and tear the flesh of the Criminal. It has now been discontinued being barbarous and cruel in
form. The main object of this kind of punishment is the deterrence. However, critics point out that this kind of
punishment is not only inhuman but also ineffective. It did not serve any useful purpose in case of hardened
criminals and recidivists. However, it proved d effective in case of minor offenses like it eve-teasing,
drunkenness, vagrancy etc.
3.2 Mutilation- Mutilation is another kind of corporal punishment. It is prevalent during eminent Hindu
Period. In case of theft, one or both the hands the offender were chopped off and in case of sex offenses, his
private part was cut off. The justification advanced in support of mutilation was that it served as an effective
measure of deterrence and prevention. This mode of punishment as well has been completely discarded being
barbaric in nature. This system was in practice in England, Denmark and many other European countries as well.
3.3 Branding - In this type of punishment, criminals were branded with the appropriate mark on the forehead
so that they would be identified and subjected to public Ridicule. For example, if a person found guilty of theft,
the word 'theft' or 'T' it is branded on his forehead and the public would call him theft. In England, branding was
practiced till 1829. Finally, it was abolished by an Act of Parliament.
3.4 Chaining- Chaining the offenders together was also commonly used as a mode of punishment. Their liberty
and mobility was thus completely restricted. The hands and legs of criminals were tied with iron rods and
Chained together. This method is now being sparingly used in the present prison system.
3.5 Pillory - Pillory was yet another form of cruel and barbaric corporal punishment. It was in practice till 19th
century. Hardened criminals and dangerous offenders were nailed in walls and shot or stoned to death. There
is no doubt that this type of punishment was more cruel and brutal in form and therefore it has no place in the
modern penal system. It is still used as a mode of punishment for sex offenders in Islamic countries which take
offense against women very seriously.
4. Imprisonment -
Another form of punishment is imprisonment. Imprisonment represents a most simple and common
punishment which is used all around the world. If properly administered, imprisonment can serve all the three
objects of punishment. It may be deterrent because it makes an example of the offender to others. It may
be preventative because imprisonment disables the offender, at least for some time, for repeating the offense.
If properly used, it might give opportunities for reformatting the character of the accused. Conditions of
imprisonment in civilized countries have undergone radical changes in recent decades. Alternative devices such
as open jail and prison hostel are being extensively used as the modified form of prisons for incarceration of
offenders.
4.1 Solitary Confinement - Another kind of punishment is solitary confinement. This punishment may be
considered as an aggravated form of imprisonment. In this type of punishment, convicts are confined in solitary
prison-cells without any contact with their follow prisons. Solitary confinement which was introduced in the
United States Pennsylvanian prison in 1770 had to be replaced by the Auburn system in 1819 in which prisoners
were taken out to work together in Silence. Experience had shown that many of the prisons undergoing the
sentence of solitary confinement died in prisons and many more returned insane and those who survived turned
more hostile and dangerous in society.
4.2 Indeterminate Punishment - Another kind of imprisonment is indeterminate sentence. In this case,
the accusative is not sentenced to imprisonment for any fixed period. The period is left determinant at the
time of the award. When the accused show's improvement, the sentence may be terminated.
5. Fine and confiscation of property –

This type of punishment was imposed for offenses which were not serious in nature and were punished with
the fine. This type of punishment was especially used for offenses involving the breach of traffic and revenue
laws. It is considered as an appropriate punishment for minor offenses and crimes related to the property.
Financial penalty may either be in form of fine or compensation or costs.

Jurisprudence (English) - 2020

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Jurisprudence (English) - 2020

Uploaded by

Copyright:

Available Formats

Pro|Studies 2020 Intermediate Year

First compiled and distributed in Sri Lanka in 2017 by the Pro|Studies

Text and illustration copyright © Prostudies 2018/2019/2020

All rights reserved

For free distribution

Yasith De Costa Brammadha Sivapathesundaram

Ashani Dilakshi Ashwini Prabakaran

Ina Sajeer Kavindi Weerasekara

Achala Tharaka Achini M alsha Perera

Bishran Iqbal Chath urika Perera

MA Rauff Navodya Chathumini

Shabishanth Mohan Tharindu Liyanage

Complied by – Rusini Anuththara (Final Year)

This study material is based on,

▪ ‘Understanding Conceptions of Law’ - H.J.F. Silva

Common features of this philosophy are,

❖ Secular Theory of Natural Law

⮚ Historical Development of Natural Law Theory

1. Reason- capacity to calculate and decide

● Aristotle (384-322 BC)

He also made distinction between,

● Cicero (106-43 BC)

II. The Medieval Period (5th to 15th century)

● St. Augustine of Hippo (350-430 AD)

He stated two cardinal principles of natural law.

● St. Thomas Aquinas (1235- 1275 AD)

III. The Renaissance Period (Secularization of natural law)

● Hugo Grotius (1583-1645)

● John Locke (1632-1704)

Further reasons for this are,

Revival of Natural Law Theory in 20th Century

● John Finnis & The Restatement of Natural Law

His theory consists of 2 main propositions;

He pointed out that universe consists of

Contribution of Natural law

Development of fundamental rights & human rights

Wijesuriya and another V State

However the learned judge held;

❖ Main Criticisms Against Natural Law Theory

Morrisson has summarised the elements of Bentham's definition as;

The Components of Positive Law

A "command", according to Austin, will have the following elements:

Moreover, all commands should be supported by sanctions. He describes sanctions as;

The Attributes of the Political Superior

Specific features of sovereignty;

If ‘A’ occurs, ‘B’ ought to happen.

Secondary norm Primary norm

gets validity gets validity This is the

gets validity gets validity gets validity

Change of the Grundnorm

⮚ Asma Jilani V Government of West Punjab

⮚ Uganda v Commissioner of Prisons; Ex parte Matovu

3. Feudal Mode of Production

4. Capitalist Mode of Production

Introduction and History of Feminism

Right – Duty Power - Liability

Right – No right Power – Disability

Right – Liberty Power - Immunity

Interconnection of these Legal Concepts

Duty contradictories No Right

correlative opposites correlative

Liability contradictories Disability

E.g. If A has power to arrest B:

Importance of Hohfeld’s System