LM Notes:

Peter Goodrich – Reading the Law

 Law takes many forms/shapes; can refer to institutions as radically different as magic, trial by
ordeal etc.
 Even within the relative homogeneity of western legal tradition, law is said to have diverse
sources: comes from god, from nature or natural order, from the monarch etc; these impact
how we study law.
 We are so used to believing in the modern ‘reasoning’ way of resolution, with courts and all. So,
we tend to think that the other foreign ways are illogical. Eg. Song contests
 Natural Order: does not have to be the same everywhere; the situation/upbringing may change
what one perceives to be the natural order
 Social order: something we have created, as opposed to something given to us by nature
 Ideational source – conceptual; institutional source – legal
 Despite the diverseness of both the form and content of law, there is an idea of unity and
separation of law. Legal scholars etc. try to show that law is a separate entity by showing us that
the source of law is external, not within our system; in nature. There is something common in
everything we call law, but it is separate from everything else.
 Law is separate by virtue of it being a unity, and having an essential characteristic (variable in
content but constant in form) which is that the formal unity of law has been based on upon its
derivation from an absolute source or origin. Absolute source lends unity. Law is separate from
everything else because of its unity. When we say that it is an external source, we show that it is
untouched and unbiased.
 External, non-legal legitimation of the legal order provides the law with its ideational unity and
renders the wide spectrum of substantive rules into a system of rules. This ideational source of
law refers to the idea or belief that lies at the basis of the system of law and provides, either
directly or indirectly, an answer to the question of why law is authoritative, the question of why
it should be obeyed. The commands obeyed must usually come from somewhere or be derived
from a conceptual source considered acceptable to the community
 Role of law as form of communal order; binds the community.
 Lawyers make assumptions as to the inevitability, the moral benefit, and validity of legal
regulation. These assumptions as to the conceptual unity of law are increasingly being used as
explicit sources of law; reference to the moral, political, and economic factors generally being
seen as a function of interpretation and argumentation (implicit sources) rather than a formally
designated legal authority.
 Preferred view is one that currently emphasizes the institutional source of law. Legal doctrine is
now more content to be seen as a series of traditionally established texts and similarly
established techniques for interpretation of those texts; established practice of legal institutions
and its officials.
 Fletcher – Basic Concepts of Legal Thought

 Statute – enactment of a proposed law by the legislature. Notion of higher law does not fit into
the notion that all law is laid down by authoritative legislature.
 Not fully conscious of the ways in which the popular model of scientific law influences our
thinking about law.
 Idea of law stands, more than anything, for inevitability, expect conformity. Human laws are not
necessarily obeyed. Citizens may not follow if law tends to change pleasurable behaviour.
However, there still is an element of inevitability or necessity in both human and scientific laws.
 Necessity arises not in the response of the people to whom it is addressed, but the response of
the state officials to violations of law, mostly criminal condemnation, or sanctions.
 Facts may diverge from law. In scientific, becomes necessary to reformulate the law. In human,
disciplining of deviant behaviour considered necessary. This need to change conduct produces
practices of stigmatisation, sanctioning, and punishment that positivists have taken to be the
essence of the legal system. Positivist premise – legal systems must use force to close the gap
between norms and actual behaviour.
 Full v. Optimal Compliance
 Earlier thought that the reason for sanctions is to ensure full compliance. However, this
would justify a level of expenditure on the police/courts/our civil liberties, that would be
worse than tolerating a low level of criminal behaviour.
 Difficult for legal systems to admit that they prefer for some victims of crime to suffer
because eliminating all forms would be too costly to society. Something immoral about
aiming for an ‘optimal’ level of crime, like rape. Proper aim should be full compliance.
 Full enforcement program v. Discretionary theories of prosecution
 Full enforcement program – Legality Principle
 State must act so as to realise the law in practice; disregards required level of
investment to secure conformity, builds solely on shared cultural assumption that
deviations between law and fact are intolerable. Requires total enforcement.
 Discretionary theories – Opportunity Principle
 Reflects economists concern - investing resources to produce the most efficient result.
 Universality and Generality v. Checkerboard
 Universality and Generality
 Human laws should not incorporate arbitrary limitations. Should be universal (apply to
everyone) and general (prevailing all the time). Arbitrariness violates essential
expectation of living under the rule of law.
 Checkerboard solution. (Eg. Abortion rights for women whose names start with...)
 Though not lawlike, would grant advantages of a policy to at least half the population.
Some utilitarians prefer a checkerboard solution over total defeat, favouring actions
that increases overall human welfare. For a policy to which the public is deeply-split,
the policy is arbitrarily applied to only some of the population, compromise.
 Dworkin thinks it is unprincipled, and the legal system would lack ‘integrity’, should be
universal and general. Fletcher thinks the unprincipled point is sound especially when it
comes to judges giving decisions in courts, unacceptable for judges to negotiate a
compromise within themselves to prevail only for a part of the population.
Checkerboard would appear too political to be accepted in legal process. He says
courts must maintain a commitment to deciding ‘under law’ (universality/generality)
Positivism

 Legal positivism commits to an agreed-upon method of validation. Alleged rules require anchors,
must be tied down to a legislative organ that enacts, repeals, and modifies laws, who must in
turn be able to trace its authority to the constitution which is grounded either in the ‘basic
norms’ of the system (Hans Kelson) or in the ‘rule of recognition’ (HLA Hart) that legitimises the
constitution and the entire system.
 Critical assumption for legal positivists: law cannot be treated simply as a phenomenon that
exists, as nature and the universe exist, needs an agreed upon method to determine whether it
is valid. All law is enacted law.
 Higher Law:
 HLA Hart – critical feature of positivism – separation of law and morality. However, he says
if the morality is determined from an authoritative source, eg. From a moral guru, then the
positivist theory of law could easily accommodate a legal system that did not recognise a
separation of morality and law. All law and morality would be enacted law and morality.
Morality cannot be rendered true by a wise one. It simply exists, for us to debate and
determine for oneself.
 Some maintain that morality is beyond manipulation by the state.
 Hans Kelson – Advantage of positivism to be its focus on norms and their internal structure,
as opposed to morality, theology etc.

Natural Law

- The view that law simply exists, without cause.

- Best way to formulate this is to recognise that the basic principles of law should be taken as
given. They exist, as morality exists, without having been created by authoritative lawmakers
- Deny that all law is enacted law. Claim that some principles of law simply exist and are perceived
within a particular legal culture.

 law as legislative will v. Law as right reason.

 Immanuel Kant and Hegel – theorised that there was only one theory of Right applicable to all
cultures, Right conceptualised in the singular. However, recently – begun to recognise that
different perceptions of Law or Right evolve differently in distinct legal cultures.
 The body of law that is inferred from codes, the product of interpreting the bare words is
considered a body of law or Right. The transition from words to the statute to the particular area
of law requires interpretative sensibility. Legal minds bring the flesh of common sense to the
bare bones willed into being by the legislature.
 The transition from authoritative words to legal principles is the task of legal studies. Cultivating
this is what judges, lawyers etc. do. They convert legislative will into norms that people can
accept and live by.
 Argument – activist judges who elaborate values underlying the law are likely to import their
own political views into the law. Remedy for this – stick closely to the words of the constitution.
(Originalism/ Strict Construction)
 The Right, as Radbruch put it, is the ideal of justice towards which law strives. Kant – sum of
conditions under which the choice of one can be united with the choice of another in
accordance with the universal law of freedom.
 Ambiguity of law explains why it has become easy to say judges make law. Can be interpreted in
two ways: concept of statutory law broadened to encompass the binding decisions of courts. In
this sense, judges enact positive law.
 Alternative – judicial decisions bear a compelling weight in our understanding of the Right. In
this sense, opinions of the judges instruct us in the Right, and hence, they ‘make’ the Right.
These two together help ‘judges make law’ pass without critical examination.
 Positivism usually associated with the defence of legislative as opposed to judicial authority.
Mid-20th century – positivism provided a vehicle for de-politicising legal analysis. Because
positivism provides an account of the entire legal system rather than the justice of particular
laws, regimes that were stable and predictable qualified as legal systems, did not matter that
they lacked moral and democratic legitimacy. Eg. Nazi Germany, apartheid laws in South Africa.
Something fundamentally unsatisfying about approaching law in a way that blurs the distinction
between legal systems that survive and those that are overthrown at the earliest opportunity.
 Ronald Dworkin – Positivism

The general position/key tenets of Positivism:

1. Pedigree Requirements
 The law of a community is a set of special rules used by the community to determine which
behaviour will be punished. These rules are identified by special tests having to do with their
pedigree or manner in which they were adopted or developed.
2. Only enacted law is law
 The set of valid legal rules is exhaustive of ‘the law’. If a case is not covered by such a rule, then
it cannot be decided by ‘applying the law’, but by the judge ‘exercising his discretion’. (Reaching
beyond the law for some other standard to guide in decision making)
3. Legal obligation
 To say someone has a legal obligation is to say his case falls under a valid legal rule that requires
him to do or forbear from doing something. In the absence of such valid legal rules, no legal
obligation. When judge exercises discretion, he is not enforcing a legal obligation as to the issue.

- Primary v. Secondary rules – Hart

 Primary rules (substantive) – those that grant rights or impose obligations upon members of
the community. Secondary rules (procedural) – those that stipulate how and by whom such
primary rules may be formed, recognised, modified or extinguished.
- Obliged v. Obligated
 Austin - A person is obligated under a rule if he is liable to be hurt should be disobey it.
 Hart – says that this obliterated the distinction between obliged and obligated. If one is
bound by a rule, he is obligated, not merely obliged to do what it provides. Therefore, being
bound by a rule is different from being subject to injury if one was to disobey.
 Valid law v. orders of a gunman – rule can never be biding just because some person with
physical power wants it to be, he must have the authority to issue the rule, such authority
can only come from another rule which is already binding on those to whom he speaks.
 Primitive communities have only primary rules – such communities cannot be said to have
law because there is no way to distinguish a set of legal rules from social rules – Hart. Rule of
recognition – used to determine whether social rules become legal rules. This cannot itself be
valid since it is ultimate, and cannot meet the standards set by a more fundamental rule.
- Accepted rules v. Valid rules - Hart
 2 possible sources of a rule’s authority. Accepted rules – rule may become binding on a group
because that group through its practices accepts the rule as a standard for its conduct.
Acceptance only when those who follow consider it to be binding upon them, recognise the
rule as reason for their behaviour and critique those not following it. Valid rules – created in a
manner and enacted in conformity with some secondary rule that stipulates it shall be valid.
- Principles v. Policy v. Rules
 When lawyers dispute, they make use of standards that do not function as rules but operate
as principles, policies etc. Thus, positivism in Hart’s sense forces us to miss their importance.
 Policy – the kind of standard that sets out a goal to be reached, generally improvement in
economic, political, social features of the community. Principle – a standard to be observed
because it is a requirement of justice, fairness, or some other dimension of morality.
 Legal principles v. legal rules – Firstly, both set of standard point to particular decisions about
legal obligations in particular circumstances, but differ in the character of the direction they
 give. Rules – applicable in an all or nothing fashion. Principles – even those which look like
rules do not set out legal consequences. Does not purport to set out conditions that make its
application necessary, rather argues in 1 direction without necessitating a particular decision.
Secondly, principles have a dimension that rules do not – dimension of weight or importance.
When principle intersect, one must resolve the conflict by taking into account the relative
weight of each. Rules do not have this dimension; one legal rule may be more important than
another because it has a greater role in regulating behaviour, but one cannot be more imp.
than another within a legal system. Decision as to which is valid - appealing to considerations
beyond the rules themselves (higher authority/based on more imp principle etc)
 Rule does not exist before case is decided, judgements based on principles to form new rule.
 Enforcing legal obligations v. Discretion applied ex-post facto. To account for importance of
principles: either say some principles are binding as law and must be taken into account, or
deny that principles can be binding and say that judges reach beyond rules he is bound to
apply for extra-legal principles he may be free to follow.

Class notes:

1. Skeleton of legal positivism (top-to-down)

a. Sovereign
b. Command
c. Sanction

- Critiques of 1.
a. Sanction - Too broad, even a gunman comes within the scope. Taxman takes away money
for the benefit of society, gunman who is his own sovereign takes it for his benefit.
b. Command - Does not cover much other than criminal law, limited scope. Only covers state
sanctioned law -> constitution and torts does not come within its purview.
c. Sovereign – existence of a ‘sovereign’ state who makes rules. In a democratic society, people
make rules, not the state. Only in authoritarian/totalitarian societies are the rules/ person in
power the sovereign.

2. Second central proposition – only enacted law is law

- Critiques
a. If no precedents to follow, judge bias may creep into judgements.
b. Limiting the powers of the judge – forced to apply the law blindly because otherwise, it
will not come within the purview of precedents if the judge uses his discretion. It would
just be a one-off case. May use their discretion, but within the ambit of law.

 Dworkin talks about a combination of normative and positivism. He criticised Austin on the
grounds of him giving a strict definition of law.
 Inductive reasoning (from particular to general); Deductive reasoning (from general to
particular)
 Neil MacCormick - The Normative

 Standing in a queue
 Weaker or less forceful individuals not skipped
 Acknowledged that it is sometimes okay to skip the queue
 Must be a minimum threshold of compliance below which the practice would be unsustainable
 Turn-taking or queueing – normative – people take turns because in their opinion, it is what one
ought to do; action guiding ‘ought’;
 Such a normative practice can also exist and can be quite viable even in the absence of any
single canonically formulated or formulable rule that everyone could cite as the rule about
queueing.
 Viability of the practice is not dependent on the accuracy of any attempt made to put in explicit
terms an implicit practice.
 Even if two people agree to a definition, no guarantee that it would be equally right to a third
person
 Common opinion does not presuppose any common pre-articulation of the norm – Queuing
helps people achieve their several overlapping aims in mutual civility than in open conflict.
 Interpretive practice – each party reads the situation as s/he thinks others are reading it.
 Normative Order:
 Order that people stand in a queue is not random, but an actual predictable pattern
 It is a normative order because one can account for it by reference to the fact that actors
are guiding what they do, by reference to an opinion concerning what they and others
ought to do – mutually aware participants
 Contemporary egalitarianism – the provision of a service that has to be taken up one at a
time should be done on the basis of a sequence that is universalistic rather than
discriminatory.
 Queuing is a general practice with many variants; relativize the articulation to the kind of
queue and relevant cultural context.
 Range of reasonable interpretations, no one right one. Reason – for a practice like this to
work satisfactorily, there only has to be broad overlapping consensus, or a broad
commonality of attitude among the participants.
 Detected cases of non-conformity are treated as wrong – pressure of common normative
opinion.
 On conventions: Informal practices:
 Queueing happens in an informal way without having a regulating authority managing the
queue in some way.
 Informal normative practices – normative order can exist in some cultural and social
settings on the basis simply of mutual belief and inexplicit norms with overlapping mutual
understanding and interpretation. The kind of order they constitute – Informal normative
order.
 Convention – implicit norms’ orientation to what is constitutive of informal normative order
 Act of formulating the implicit norm has a transformative effect – becomes an authoritative
rule or maxim.
 Conclusion: human beings are norm-users whose interactions depend upon mutually
recognisable patterns that can be articulated in terms of right versus wrong conduct, or of what
one ought to do in certain settings.
Normative – class notes

- Common civility v. Open conflict.

- Queues are context, country, and culture specific.

Questions.

1. Why do we follow these norms?

 Advantages of queuing – everyone gets a fair chance; ensures orderly movement; weaker
and less forceful individuals are not forced out or disadvantaged.
2. How has standing in a queue evolved as an institution?
 Successful practice -> social-moral institution based on mutual cooperation
3. Why is queueing a normative practice in character?
4. Does queueing exist independently of written law?
 Yes, interpretative practice.
5. What makes the practice of queueing intelligible?
 Equal opportunity to avail a service, universalistic.
6. Can there be a single conceptualisation/formulation of queueing?
 Not possible or required.

- Normative order
It is a normative order to the extent that actors guide what they do with respect to an opinion
they have concerning what they think they and others have/’ought’ to do.
- People in queues not in any particular order, but pattern can be predicted – turn-by-turn basis.

- On conventions: Informal practices: Queueing is an informal practice that still holds authority
over those who queue up. Queue as an institution regulates or manages it in some way.
 Fuller – Morality of Law

 Story of an unhappy ruler who wanted to reform the legal system. 8 stages.
 Reform the legal system because
 Archaic Law
 Cumbersome legal procedures
 Corrupt Judges

1. Rex’s first act was dramatic; wanted a clean slate to write on, repealed all existing laws
immediately. Set about making a new code.
 Problems: He had had a defective education, could not make generalisations, could not
articulate reasons for giving decisions, although confident while giving decisions.
2. Gave up the project of a code and announced that he would act as a judge in any disputes that
may arise. He thought he would work out a generalisation after looking at a variety of cases.
 Problems: Due to defective education, this was a failure. No discernible pattern in hundreds
of cases.
3. Decided to start afresh. Took lessons in generalisations. Succeeded in preparing a length
document. However, he was not confident in it and said that it would remain a secret, but would
be used to decide future cases.
 Problems: Resented by his subjects, thought it was not fair for cases to be decided by rules
even though they did not know what they were.
4. Rex took inventory of his personal strengths and weaknesses. Thought it was easier to decide
cases in hindsight, decided to decide upon all cases that happened in the previous year on the
first day of the next year, and to accompany all judgements with full reasoning.
 Problems: Not well received, subjects said they couldn’t follow laws unless they knew them
in advance
5. Rex saw the need for a code. Made a code that was quite obscure, no one could understand
even one line.
 Problems: subjects stated that no one could follow a law that no one understands.
6. Rex decided he needed assistance, got an expert staff. There was new clarity.
 Problems: Lot of contradictions within the document.
7. Rex got tired of the citizens and their criticisms. While asking experts to remove contradictions,
asked the makers to stiffen drastically every requirement contained in it. For example – Citizens
summoned to court in 10 days to report a crime before, now it was 10 seconds.
 Problems: Citizens revolted. ‘To command what cannot be done is not to make law but to
unmake law’.
8. Experts now instructed to go through the code and amend impossible statutes so as to make
compliance possible. Finally, there was a good, concise code.
 Problems: Due to time spent revising the code, substance had become outdated.
Amendments were made, law changed every day. Citizens were dissatisfied; “law that
changes every day is worse than no law”.

Rex finally decided to reassume judicial powers.

 Guidelines on how to make/not to make laws

1. Non-arbitrary/written - Need to first have rules, so that they aren’t decided ad hoc
2. Publication - Need to make aware to the people the existence of these laws
 3. Non-retroactive/Prospective - No abuse of retroactive legislation
4. Clarity/Comprehensible - Need to make rules understandable
5. Non-contradictory/Consistency - Avoid enacting contradictory rules
6. Compliance-possible/ Possible performance - Avoid making laws that require conduct
beyond the party’s power
7. Constant/Statutory - Avoid frequent changes
8. Law in theory and law in practice/Actual Implementation - Avoid difference in the way law is
written and how it is administered.

 Inner morality
 It is the internal morality of law
 Steps to be followed while making laws
 Procedural laws
 External morality
 Substance of the law
 Llewellyn – Some realism about realism

- Not a school. New recruits acquire tools and stimulus, not masters, nor over-mastering ideas. It
is a movement in thought and work about law.
- Observations:
1. Certain points of departure are common to them all.
2. Cross-relevance, complementing, interlocking of varied results (even though no school/
striking likeliness)
- Each man of necessity orients the whole to his main interest at the moment.
- Llewellyn’s justification for grouping these men together lies not in that they are alike in their
belief or work, but that from their common point of departure, they have branched into lines of
work which seems to be building itself into a whole planned by none, foreseen by none, not
adequately grasped by any.
- Common points of departure:
1. Conception of law in flux, and judicial creation of law.
2. Conception of law as a means to social ends, not as an end in itself.
3. Conception of society in flux, and in flux typically faster than law – any portion at a time
needing re-examination.
4. Eliminating value judgements. Things to remain as largely as possible uncontaminated by the
desires of the observer. Realists believe that Ought-spectacles during investigation of facts
make it difficult to see what is being done; informed decisions and not armchair evaluations.
5. Distrust of Descriptive rules - traditional legal rules and concepts purporting to describe
what either courts or people are actually doing. Emphasis on rules as ‘generalised
predictions of what courts can do’. Precept (rules for doing) v. Practice (rules of doing).
6. Distrust of theory that prescriptive rules-formations are the heavily operating factor in
producing court decisions.
7. Belief in the worthwhileness of grouping cases and legal situations into narrower categories
than has been practice in the past– how judges view cases. Connected with distrust of
verbally simple rules which often cover dissimilar cases.
8. Evaluating the purpose of law. (effects/worthwhileness of effects)
9. Insistence of sustained & programmatic attack on problems of law along any of these lines.

- 4,6,7,8,9 – characteristic marks of the newer movement. 1,2,3,5 – common to newer movement,
not peculiar to it. Common between new and old – critiques about positivism, thinking of natural
legal theory as idealistic, to look at law like it is something in society amongst people.
- Appellate courts, lines of attack:
1. Systematic attack – rationalisation. Judgements seen as trained lawyer’s arguments intended
to make the decision seem plausible, legally right, and legally inevitable. To make litigation
respectable, the available authoritative premises must at least be two which are mutually
contradictory to the case at hand, opens up question of how court selected one.
2. Second line of attack – to discriminate rules with reference to their relative significance.
3. Third line on the apparent conflict and uncertainty among decisions in appellate courts has
been to seek more understandable statements by grouping facts in new, typically narrower,
categories. The departure from orthodox procedure lies chiefly in the distrust of, instead of
search for, the widest sweep of generalisations words permit.
- All 3 converge on a single conclusion – there is less possibility of accurate prediction of what
courts will do than traditional rules would lead us to suppose.
 Oliver Wendell Holmes – The Path Of Law

 Distinction between law and morality: A bad man has as much reason as a good one for wishing
to avoid an encounter with the public force. A man who cares nothing for an ethical rule will still
follow because of the other sanctions.
 While critiquing, not to be called cynical. Law is the witness and external deposit of our moral
life, the practice of it makes good citizens.
 The distinction between law and morals is of first importance for the object being considered – a
right study and mastery of law as a business with well understood limits, a body of dogma
enclosed within definite limits.
 If you want to know the law and nothing else, it is to be looked at from the perspective of a bad
man who cares only for material consequences. His reasons for conduct lie in the vaguer
sanctions of conscience.
 The mere force of language invited us to pass from one domain to another without perceiving
the phraseology drawn from morals.
 Law, if not a part of morality of law, is limited by it. Statutory bodies would not dare to enact
such extreme laws that would result in rebellion and fight – rights of a man in the common sense
are equally rights in the sense of the Constitution and Law.
 Forces which determine the control and growth of law: May be an assumption that all law
emanates from the sovereign. Even if decisions required the sanctions of despotic emperors,
there is an interest, with a view of prediction, in discovering some order or rational explanation,
and some principle of growth for rules he laid down. Such explanations found in every system.
 Fallacy: notion that only force at work in the development of law is logic. The condition of our
thinking about the universe is that it is capable of being thought out rationally. In the broadest
sense, it is true that law is a logical development. The danger is not in admitting that the
principles governing other phenomena also govern law, but the notion that a given system can
be worked out like math from some general axioms of conduct.
 This thinking natural – lawyers trained in logic/deduction; longing for certainty. Certainty
generally is illusion, repose is not the destiny of man. Any conclusion or judgement can be
given in a logical form.
 Conditions can be implied in a contract because of the general practices of the community,
or because of some opinion or policy – because of some attitude of yours that is not
capable of exact quantitative measurements and therefore not capable of founding exact
logical conclusions.
 The decision does no more than embody the preference of a given body in a given time and
place. Large part of law is open to reconsideration upon a slight change in habit of the
public mind.
 Judges failed to adequately to recognise their duty of weighing considerations of social
advantage. Result – judicial aversion, tend to leave foundation of judgements
inarticulate/unconscious.
 Margaret Davies – Asking the law question (Feminism)

 Claim that common law theory or positivism is patriarchal.

1. Men have written law and theories about law
2. Laws are a reflection of male values
 Men have made the legal world in their own image, confusing it with the absolute truth;
over-representation of one group in legal decision-making and theorising; value systems of
law and culture reinforce oppression.
 When values like reasonableness, rationality etc. are culturally associated with men, it is no
surprise that the law seems to speak to men.
3. Presentation of a view of law which is supposed to explain its general characteristics
 Seen as a way of stifling dissent or diverse viewpoints. If there is a neutral way of seeing
something, then we are more likely to accept that ours is distorted and consequently
attempt to fit them into dominant mould; may also have an internalised message due to
prevailing ideologies.
 The fact that law might look completely different to those whose main experience of it is as
an instrument of oppression does not occur to mainstream thinkers.

 Carol Smart – Feminism and the power of law

 Law’s function is to make a claim as to the truth of things. Law is a form of knowledge that
sometimes disqualifies other ways of thinking.
 System ultimately divines the truth
 Law’s claim to truth is not manifested in its practice but rather in the ideal of law.
 Comparison to scientific law, weight given to truths and denial of possibility of others. Law not to
this extent but judge’s pronouncement more important than defendant’s proclamation.
 Law’s ability to disqualify other knowledge – non-legal knowledge is suspect or secondary.
Everyday experiences are of little meaning, should first be translated into legal issues before
they can be processed through the legal system.
 Law is taken to be outside the body, transcends it and acts upon it. The more it is seen as a
unified discipline that responds to its own internal reasoning, the more powerful it becomes.
 Denning constructs law as a sovereign with the power to give or withhold rights.
 Wrt non-legal issues – judge retains authority drawn from legal scholarship and ‘truth of law’,
applies it to non-legal issues. Legal Imperialism – legitimacy that law claims in the field of law
extends to every issue in social life.

Summary:

1. Law makes claims of truth

2. Rational/Logical thinking – Indoctrination
3. Different from other disciplines
4. Science and Law – disqualify other knowledge
5. Law outside social action – benefactor
6. Legal Imperialism

Class notes:
- Women being subjugated under laws, being treated as inferior
- If women classified as rational/objective – called suspect, deviant from normal.
 Lucinda M Finley – Breaking Women’s silence in Law

 Language – socially constructed and construed – rather than being naturally ordained or neutral,
it reflects world views and chosen meanings of those who have had power to affect definitions
and create terms, which then shape our understanding.
 Law is a language, a form of discourse, and a system through which meanings are reflected and
construed and cultural practices organised. It can pronounce definitively what something is and
what it isn’t – potent ability to shape popular and authoritative understandings of situations.
 Through its definitions and how it talks about events, law has the power to silence alternative
meanings.
 Baby M case – ‘surrogate’ term – situation viewed contractually.
 Changes in how a situation is characterised can affect how the law approaches and resolves it.
(Baby M – contract v. custody)
 Legal language and reasoning is male gendered, based on life experiences typical to empowered
white males.
 Normative reason for legal language being called patriarchal – male-based perspectives, images,
and experiences are often taken to be the norm in law. (for equality, reasonability etc)
 Rape law analogy.
 Women’s own understandings of things whose meanings are greatly influenced by legal
definitions will be construed with reference to male meanings. Therefore, incorporating
women’s experiences is not as simple – no true woman’s experience is unaffected by social
construction, incl. legal construction incl. male defined understandings.
 David Kairys – The politics of Law, a Progressive Critique (CLS + Realism)

1. Separation of law and politics

2. Idealised decision-making process
 Objective nature of legal analysis, technical expertise of judges and lawyers etc.
 Attributes - Law on a particular issue is pre-existing, predictable, and available to anyone
with reasonable legal skills; facts related to a case are ascertained by objective hearing
and evidentiary rules; result of a case determined by routine application of law to facts;
except for the occasional bad judge, most judges will reach a fair and correct decision.
3. How do we demystify these ideas?
 Theories resting on the legitimacy of law and on the existence of widely shared values at
least implicitly recognise the social and political content of law.
4. Shift from legality to legitimacy. Deviation or characteristics?
 Legal decisions are expressed and justified in terms of this idealised process.
 Cynical views of the system being fixed etc are being used to define deviations and not
characteristics.
5. Malleability of law – matter of common knowledge, not a cause for concern.
6. Know the law or know the judge? – judge assigned to a case has significant bearing on the
outcome
7. Response to judgements
 Focus on whether courts have deviated from the idealised decision making process
rather than on the substance of decisions or the nature and social significance of judicial
power. Perceived deviations undermine legitimacy of the court – institutional and public
challenges
8. Response from judges
9. Outcome
 Underlying conception is that if not perverted by bias, corruption, or stupidity, it will
produce a distinctly legal, fair rules and results obtained untainted by politics or
anyone’s social values.
 Conservative criticism that courts have outstepped their bounds is now common – go
beyond idealised process.
 CLS - We reject idealised model. Problem not that courts deviate, but that there is no
methodology or process for reaching particular, correct results.

Class notes:

1. Idealised decision making process

2. Why do they repudiate this?
3. Why are decisions, judgements expressed in terms of this idealised process?

- Talks about the content of law

- Theories lie in critiquing three points.
- Difference between realism and CRT:
Realism: they clear the ground of other theories and they build up something. CRT: only clear
the ground, no new theories.
 Crenshaw – Critical Race Theory

 Challenges the ways in which race and racial power are construed and represented in legal
culture and society.
 CRT unified by two common interests:
1. To understand how a regime of white supremacy and its subordination of people of colour
has been created and maintained.
2. Desire to change the vexed bond between law and racial power.
 Antithetical knowledge – development of counter accounts of social reality by subversive and
subaltern elements of the reigning order.
 CRT, like CLS, rejects the prevailing orthodoxy that scholarship should/could be neutral and
objective; belief that legal scholarship about race could never be written with detachment or
with an attitude of objectivity; no scholarly perch from which only to observe; scholarship
inevitably political.

Class notes:

- Committed to the idea of human liberty

- Left scholars
- Questioned racial hierarchy
- Antithetical knowledge – political process of law making
 Stychin – Law’s desire, sexuality, and the limits of Justice (CLS + Queer)

 Challenged the naturalness of the public-private distinction, stated that it was a social construct
that was used to justify the intervention of the state in some areas and not the others.
 Importance of a zone of privacy – symbolic and practical matter. The private has been a crucial
realm of safety from a metaphorical and literal violence that lurks within the public sphere.
 Metaphor of the closet. Positive because it has a protective function, allows for some freedom in
determining where to position oneself in terms of out-ness. However, it has also acted as a
regulatory boundary by which sexual minorities are removed from a public dialogue sphere into
a realm of discretion.
 In order to get rights, one must first come out into the public sphere.
 Davis – Situating Fluidity (Trans)Gender Identification and the Regulation of Gender Diversity

 Fluidity and whether it can be theorised

 Construed as changing, unstable, inconsistent, and ambiguous; Temporal and situational
nature of gender performances; Don’t necessarily renounce social construction/ regulation.
 Unbounded or unconstrained
 Fluidity has also been conceptualised as unbounded or unconstrained; Transgender fluidity
seen as indicative of gender freedom and primacy of individual choice; escape from
constraints of gender assumptions, refusal to stay within one category or another.
 Rejection of Identity
 Postmodern queer theorists have questioned the “unity, stability, viability, and political
utility of sexual identities.”; Identity is something restrictive that one needs to move beyond
 Postmodern gender theory has largely (wrongly) been interpreted as a description of and a
call for greater degrees of flexibility. Act of labelling becomes a sign of oppression; LG happy
to move to a pluralistic world of infinite diversity; Tendency to focus on creative agency of
individuals may underemphasize hegemonic power relations.
 Why theorists are rejecting the ideas of self-identification or voluntarism
 The revelation that gender is a social construct does not in any way relieve the effects of
that construction to the point where we can manipulate at will the terms of our gendering.
 Butler – rejects the idea that gender performativity is based on radical free agency.
 Implications of self-identification
 Identity claims require individuals to downplay or obscure parts of their experiences or
history; Binaries fail to represent fully the diversity of individuals’ experiences, behaviour, or
self-understandings. Public gender performances are formulated in relation to regulatory
frameworks structuring what is acceptable and intelligible – “compulsory performances”
 Importance of authentic representation
 Representation is a subjective determination of the credibility of self-presentations.
 Credibility of one’s own gender identity is assessed based on the extent to which individual
appears to follow the ‘rules’ of gender; gender clams must be intelligible to others.
 Social validation and authentication
 Authentication is important because it enables trans-sex individuals to be accepted and
treated in a manner with which they feel comfortable.
 Corollary to self-identification
 By presenting themselves as a typical gender, trans-sex people seen to be hiding their
incongruent gender history, passing off as non-transgendered (claiming illegitimate status)
 Gender Identity Management
 Does not necessarily mean concealing one’s identity, but may require negotiating the
cultural norms of appropriate gender presentation.
 Monitoring and regulation of identity
 Monitoring increases in situations where gender delineates individual’s opportunities,
inclusion, and personal safety; both formal and informal regulations used to locate
individuals within a dichotomous framework.
 Practical consequences of legal classification
 Gender identities may be used to delineate social rights and opportunities. Eg. Bathroom.
 Paradox
 Push for coherence highlights multiplicity and complexity of identity. Stability and fluidity
interconnected, rather than oppositional.
 Module 2

The Executive: Strength with Democracy – Granville Austin

- Sapru Report – favoured constitutional head of state, but presented two alternative
recommendations both of which reflected its preoccupation with communal issues.
1. Parliamentary type, but included special provisions for minority representations.
2. Council of ministers elected for proportional representation.
o Two other things of note from the report:
a. Punjab Hindu Mahasabha – recommended traditional parliamentary government
b. Akali Sikh board – irremovable Executive along swiss lines with special minority
provisions claiming that the parliamentary system had been inefficient, corrupt, etc.
- Constituent Assembly: members of sensitive minorities (Muslims particularly) supported the
swiss system or some form of elected ministry. Others favoured traditional cabinet govts.
- K.M Munshi preferred British Parliamentary to American Presidential, believing it to be
stronger because of the overlapping memberships of government and legislature.
- B.N Rao questionnaire – name/method of choosing/functions of head of state and VP if
there was to be one; nature/type of exec.
- One suggestion – PM could either be elected by the parliament or be chosen as leader from
majority party.
- B.N Rau – favoured cabinet government.
- Committee decided against including a special provision to ensure greater governmental
stability. They believed that ministries would be assured of a reasonable stay in office due to
congress’ ascendancy.
- Presenting committee report to Assembly – Nehru explained the ministerial character of the
Executive, emphasizing that the President had no real power, but was position of ‘great
power and dignity’.
- Nehru also agreed with the proposition that the President should be a non-party man, but
said that this would be impracticable and that the best one could hope for was the
President’s impartial behaviour in office. His role as figurehead was reflected in his indirect
election. If he was to be elected by Universal Adult Franchise, and then not give him any
powers, it would be anomalous – need to emphasize ministerial character of the govt.
- Reasons for favour of direct election – may have believed that a directly elected president
would have a greater stature, be a greater symbol of national unity, especially if the election
placed him above party, though that was by no means an outcome of the election.
- Major resistance to an indirectly elected president – Muslim Assembly – favoured indirectly
elected ministry but directly favoured head. Reasons – self-protection. Elected ministries
they said would be more stable considering India’s diversity. In India, where political parties
were based on religion, the Swiss system with religious and sectarian politics, was more
effective than BP.
- Swiss – mutual differences in India can be settled by having the representative of every
party. Ministers ought to be elected by legislatures from among their own number by
proportional representation and ought to have a fixed term of office. Criticism from Nehru
and Munshi – candidates would make their appeal primarily to particular groups and that
would fragment the political life of the economy. Backdoor entry to communalism.
- For stability and strength, BP was advocated, as opposed to Swiss/American. Ayyar – An
infant democracy cannot afford, under modern conditions, to take the risk of a perpetual
cleavage, feud, or conflict or threatened conflict between the Legislative and the Executive.
- The aim of the Assembly was to create a new unity by breaking down the old loyalties that
had fragmented and compartmentalised Indian life. Having proportional representation
would have taken a step back from goal of national consciousness.
The Judiciary and the social revolution – Granville Austin

- Constituent Assembly envisaged the Judiciary as a bastion of rights and justice. Question –
how to render it impregnable to sapping by private interests?
- Need to keep politics away, this to be done by protecting it with constitutional provisions.
Tenure/salaries etc. detailed. Done to insulate courts from attempted coercion by forces
within and outside the government.
- Sapru Report – Judges salaries should be fixed in the constitution act, should neither be
varied to his advantage or disadvantage during his tenure.
- Nothing could undermine public confidence more than possibility of executive interference
with the strength and independence of the highest tribunal.
- Members of the Constituent Assembly’s ad hoc committee – believed that salaries and
pensions should be laid down in statutory rules and only their main recommendations to be
included in constitutional provisions.
- Collegium model of appointing judges -President in consultation with CJ of SC and other
judges of SC and HC as may be necessary.
- Amendment of articles pertaining to the SC should require the consent of the provinces.
- These were all measures they thought would ensure its independence.
- The recurrent theme of unity
 Munshi stressed the unifying effect of a uniform interpretation of laws by the SC. With
growing enthusiasm for linguistic provinces, they thought it would lead to the
formation of petty nation states
 Unconscious process of consolidation which a uniformity of laws and interpretation
involves making the unifying unconscious and therefore more stable.
 Provision that allows for advocates to practice be included in the Union list. Criticism –
infringes upon provincial autonomy. Defence – uniform qualification set by the
Parliament were needed for lawyers to follow their cases from court-to-court, and
because it kept newly formed High Courts from setting standards that departed
radically from the norm.

- Can Judiciary function in a vacuum?

 National anthem case
Common Points between the three readings:
- Goal of social, political, economic unity
- Mechanism to ensure that everyone has adequate say
 Universal Adult Franchise
 Reservation of seats for minorities to ensure representation
- Long and short-term stability

- Functional Representation v. Proportional Representation

- Composition of each of the bodies

- Internal Aids of Interpretation

- External Aids of Interpretation
 “An Introduction to Legal History” in laying down the law
Cook et al.
- Feature which distinguishes common law from other Western Legal Systems – extent of reliance
on precedent. Judge uses past as a yardstick against which to measure the propriety of present
conduct.
- The relevance of English Legal History to Australia
 Legal and political systems in Australia find their roots in the traditions of the colonial power
which imported its understanding of law and social organisation; Australian experience
cannot be considered in isolation from that of other Commonwealth countries.
- Roots of English Law:
 Pre-William conquest legal system – sophisticated, but lacks commonality. It was based on
local custom, and because of the number of invasions, there were several different customs
in force in different parts; unified political entity, but no set of common rules.
- Feudalism:
 Norman Conquerors – adaptation and administration. Did not impose a new body of
substantive law, but built on pre-existing social structure to establish an administrative
framework which allowed a new legal system to develop and flourish.
 The system of economic and social organisation introduced by them – feudalism – system of
land ownership based on formal social hierarchy. Kings>nobles(tenants-in-chief)> sub-tenants
 Underlying premise of feudal tenancy – mutual promise. Feudal loyalty owed to each level
above and got protection and assistance in times of need in return.
 Reason this was implemented – did not have enough power to govern entire country; William
effectively leased out power to nobles who helped with conquest and Anglo-Saxons in return
for pledges of loyalty. Laid foundation for stable system of govt. in which institutions of civil
authority could develop and replace military authority.
- Birth of common law: extension of the King’s jurisdiction.
 Though the old system was not formally abolished, overarching dominion asserted by the
new kings led to decline of local law.
 Kings travelled around to decide cases, did not know local law, and decided to decide all
cases alike – foundation of stare decisis.
 Success of this – attempt to avoid arbitrariness. King’s word also greater than local lords, less
biased, held more force throughout England, could be enforced anywhere in England.
- Formalisation of legal structures: itinerant justice and the growth of courts
 King’s court – body of trusted advisors to the king. Curia Regis and justiciars (viceroy’s in the
king’s absence) – step in transformation of common law from personal instrument of King to
real apparatus of govt.
 Circuits formed – helped increased accessibility.
 More people, curia regis became more specialised and divided – judges whose job it was to
hear pleas of common folk.
 Some advisors still remained, apart from Exchequer and Court of common pleas. They were
of two kinds – those who advised on individual disputes (King’s Bench), and those who
advised on general questions of law (Council). Common Pleas + Exchequer + King’s Bench –
Common Law courts. Curia Regis into 3+council – attempt to cope with central gov demands.
- The Writ System:
 Attempts to regularise and formalise procedures. writ system -chief means of systematisation
 Writ- written command from monarch that something be done. This formalisation did not
stem demand for king’s justice.
 Writ system story highlights underlying feature of common law system – obsession with
procedure. Ability to bring a suit depended on being able to find a form of action which
would accommodate the claim.
- Trial Procedures in Early Common Law
  Chief weakness of common law – reason for popularity – lack of local knowledge of judge.
 They attempted to circumvent this problem by divine intervention – trial by ordeal and battle
 Existing alongside this – disprove allegations by producing witnesses – wager of law. Based on
local knowledge, this jury was to tell if someone was probably saying the truth. Initially, jury
supposed on act on basis of prior knowledge & assumptions of truthfulness, not be impartial.
- Equity:
 Systematised, also rigid. Informal and speedy changed to procedurally complex and slow.
Became the opposite of why it had become popular.
 People again went to the king to resolve disputes, started with him and Council deciding, but
soon delegated it to Chancellor. Chancellors trained as priests – they did not ground their
decisions according to common law principles or precedents, but on Christian precepts. This
chancellor made, Christianity based law – Equity, court of Chancery; Features – discretionary
 Initially ComL and Eq coexisted, but then rivalry. Decided that in case dispute were to arise,
equity would prevail.
- Foundations of modern constitutionalism:
 Magna Carta and the first parliaments
 Reformation and Parliament during the Tudor dynasty
 Henry VIII wanted to divorce wife, Pope did not allow, created Church of England – had
effect of freeing parliamentarians from limitation of political authority by church.
 The English Civil War
 James I – divine right of kings. Wanted to sit in on ComL cases, judges determined this
was not appropriate – law not to be decided by natural reason but artificial reason, and
that law is an art that requires long study. Court said king cannot change ComL by
proclamation.
 Crown v. Parliament – Divine, so tried to dispense of services of parliament, but called
them to vote on taxes. This formal acknowledgement did not sit well with him. His son
tried dispensing with them entirely. Case held in favour of king – but held that this could
be due to fear of consequences.
 Parliamentary forces defeated royalists, but Cromwell despised entertainment.
- The Glorious Revolution and the constitutional settlement
 Second royal overthrow – glorious revolution – marks end of any basis for claim that English
Monarchs ruled by anything apart from parliamentary consent.
 Judges given security of tenure – at king’s pleasure said to have left them susceptible to
pressure. Now, ‘good behaviour’.
- Statutes:
 Increased prominence given to the workings of the Parliament from constitutional
settlement. All legal authority traces back to royal authority. Statute – instrument of the
parliament
- Common law Procedural reforms of 19th century:
 ComL Procedure Act, and Chancery Procedure Act – simplified procedures. Judicature Acts –
profound effect on the way justice was administered in England. Organised courts, and it also
provided for concurrent systems of common law and equity – no matter where judge sat, he
could apply either rule as he saw fit.
- The Legal Profession:
 With creation of common law courts – judges. Lawyers cropped up to represent clients.
Serjeants – highest ranking members of legal profession – they had monopoly of appearance
in Common Pleas, where bulk of litigation took place – defacto division into classes.
- Legal Scholarship:
 Reports of actual cases – rolls and yearbooks; yearbooks soon replaced by Nominate Reports.
 Module 4
Interpretation of Statutes – Amita Dhanda

Constitutional Provisions and Statutes

- Interpretation of the Constitution
 Statutes and Constitution both emanate from the same source (people), but there is a
difference in the mode of their enactment. Constitution is a direct mandate from the
people, statutes are the will of the legislature. Constitution mechanism under which laws
are to be made, not merely an Act which determines what the law is.
 Constitutional provisions to be construed in a manner which is most beneficial to the widest
possible amplitude of its power. Exclusionary clause – narrow interpretation.
- Applicability of Rules of Statutory Construction
 Court will have to ascertain the intention gathered from words in the Constitution/Act.
Where two are possible, the one that ensures smooth and harmonious working of the
Constitution and which is in accordance with the other parts of the Statute, and eschews
that which would lead to absurdity/ give rise to practical inconvenience is to be adopted.
- Original Intent and Dynamic Interpretation
 Courts should interpret against the social setting of the country to show complete
consciousness and deep awareness of the growing requirements of society and complex
problems being faced which the legislature seeks to solve through beneficial legislation.
 Mechanical v. Organic Theory.
Mechanic – Constitution must be construed now as it was construed at the time of
adoption. Gather the intention of the drafters, read the Constituent Assembly debates
and look into contemporaneous material.
Organic – requires us to see the present social conditions and interpret the Constitution
in a manner so as to resolve the present difficulties. Interpreting it from the view of the
drafters may help arrive at an outdated and unrealistic view. (Katju).
A constitution provision is to be construed in a wide and liberal manner so as to take into
account changing conditions, and to help law remain dynamic.
- The Constituent Assembly Debates as an aid to Constitutional Interpretation
 Fundamental principle of constitutional construction – give effect to the intent of the
framers of the organic law and of the people adopting it. (according to the intent that made
it). Intent can be gathered from the words, but if ambiguous, then can go beyond.
 One must read the words, not as one reads legislative codes which are subject to
continuous revision, but as the revelation of great purposes which were intended to be
achieved by the Constitution as a continuing instrument of the Government.
- Interpretation of Legislative Powers
 Doctrine of liberal interpretation – special application wrt seventh schedule. While
considering the extent of legislative competence of the legislature wrt entry in the seventh
schedule, the entry must be given the widest scope; construed liberally. Reason – the
allocation of subjects is not scientific or logical. If laws intersect, judiciary steps in. However,
if subject matter has been defined by a statute, that definition shall prevail.

Beneficial and Welfare Statutes

- Beneficial statutes and Rules of Beneficent Construction
 Beneficial statutes – statutes which purport to confer benefits on individuals or a class of
persons, by relieving them of onerous obligations under contracts or which tend to protect
 persons from oppressive acts by individuals with whom they stand in certain relations. To
be interpreted liberally rather than restrict and defeat object of Act.
 Does not have to be retrospective; if conferment is subject to fulfilment of certain
conditions, non-compliance has effect of nullifying the benefit. Eg. Social Boycott Act etc.
- Remedial Statutes and their Interpretation (rights of illegitimate children/ live-in rel’s etc.)
 Remedial Statutes correct defects in pre-existing law. Purpose – to keep pace with views of
society and conceptions of what is just and proper human conduct. A construction that
promotes improvements in the administration of justice and eradication of wrongs would
be given preference over one that perpetuates it. Remedial taken to mean the converse of
legislation imposing criminal or other penalties; only compensatory.
 Narayanaswami Reddiar v. Padmanabhan – bigamous marriage maintenance. Court
conceded that a welfare legislation like Hindu Adoption and Maintenance Act 1956, should
be interpreted liberally, but liberality cannot over-step the legislative limits of interpretation
putting into the legislation something that is not there. Other courts – legislature never
intended for a second wife to not come under wife atleast under section 18 and be
deprived of maintenance – would give premium to the husband for defrauding the second
wife. Granted a statutory status in Rameshchandra Daga v. Rameshwari Daga. Appellant
argued that extending the benefit to second wives would defeat purpose of discouraging
bigamous marriages. Held that it cannot be considered immoral, because of Indian history
and culture, so as to deny even the right of alimony or maintenance to a financially week of
dependent spouse.

Penal Statutes
- Strict Construction (takes away people’s liberties)
 Penal statutes must be strictly construed, and usually in favour of the subject, since
legislators are generally solicitous of individual liberties and desire to interfere with them as
little as possible. However, must not be so unreasonable construed so as to defeat intention
of the legislature or such that it would lead to absurd results. No case shall fall within a
penal statute which does not comprise all elements which, whether morally material or not,
are in fact made to constitute the offence. Cannot penalise someone for something not an
offence at the time of commission of the act.
- No extension by implication
 Penal statute must not suffer from vagueness, must be clear and specific, prohibition
cannot be left to be implied. Care must be taken to ensure that no one is brought within it
who is not within express language.
 Sakshi v. UoI – NGO wanted definition of rape to include all forms of penetration. Court
held that attention is to be paid to what has been said and also what has not been said. The
fact that an enactment is a penal provision is in itself a reason for hesitating before
ascribing to phrases used in it a meaning broader than they would ordinarily bear.
 Rajinder Singh v. State of Punjab – definition of dowry. Court held that definition must come
under the plain meaning of the words used, courts noticed how strict v. liberal distinction
almost disappeared, but fair construction was stressed upon. Law must be interpreted
having regard to subject matter of offence + object the law seeks to achieve
- Benefit to the subject in case of doubt and standards of compliance
 Benefit to go to the subject. Existence of ambiguity does not necessarily mean creation of a
doubt, if by application of ordinary rules of construction applicable to other statutes that
meaning can be ascertained. Ambiguous words – liberal construction.
- The rule of strict construction today (should not strain words beyond meaning)
 No case shall be held to fall within it which does not come within reasonable interpretation
of the statute. In former times, strict construction more rigorously applied. Tendency of
 modern decisions is to narrow materially the difference between what is a strict and a
beneficial construction. Express or paramount intent instead.

Fiscal Statutes
 Strict because people are entitled to their own property they have created by their own
effort. Taxation should not be expropriatory, should only take part of the entity’s earning
- Taxation only by express words
 Welfare state – state entitled to make a levy even against the people sought to be
benefitted. No relevance that person does not think it to be so.
 Construction that favours the citizen rather than placing a burden on him. Motive with
which tax was imposed becomes immaterial, validity with reference to legislative
competence to levy the tax to be taken into account. One validity is ascertained, pith and
substance/character has to be adjudged.
- Rule to determine tax liability
 Look merely at what is clearly said, no room for intendment or presumption. In accordance
with ordinary rules of construction.
- Exemption from taxation
 Benefit of exemptions to be interpreted strictly and in its entirety, not parts.
 When exemption granted by a clause, the clause has to be liberally interpreted.
 Should be construed strictly but when it is found good to satisfy the test by which it falls in
the exemption notification, then it cannot be excluded from it by resorting to applying or
construing such notification narrowly. Once it falls even narrowly within these, no
justification to exclude it. Cannot be unduly stretched to produce unintended results.
 Taxation laws are remedial, and intended to prevent fraud, promote public good. Must be
construed in a way to accomplish these objectives.
 Activist Challenges to Deliberative Democracy – Iris Young

Introduction
- Deliberative democrat claims that parties to political conflict ought to deliberate with the other
and through reasonable argument, try to come to an agreement on policy satisfaction to all.
- Activist suspicious to exhortations to deliberate, believes that democratic processes are usually
biased towards the more powerful. Thus, one should engage in critical oppositional activity
The characters
- Gendered roles: If deliberative democrat is male, then that position appears to carry added
weight of rationality and calm, and the activist then appears flighty, primarily moved by passion.
 If activist male, then dangers of stereotyping as aggressive. However, this assignment gives
females more power. Making the activists or outsiders the women would show that
women, who are already the outsiders, wield no power.
 Gives the power that men wield to activism, thus balancing not only the genders but the
concepts. Also helps fight the structure laid down. Can’t justify breaking down the structure
without breaking down stereotypes.
 Using only ‘he’ or ‘she’ results in invisiblising the other, like queer with binaries. Result of
power of language and classification.
- In deliberation, parties to a conflict propose solutions to their collective problems and offer
reasons for them, criticize and are open to being criticized. They listen to and take account of the
other parties’ interests. This practice also aims to bracket power differentials so that agreements
are reached through argument and not because of threat or force. Best way to limit political
domination and naked imposition of partisan interest is to foster creation of sites and processes
of deliberation among diverse and disagreeing elements of polity. Conclusion acceptable to all.
- Activism committed to social justice. Since ordinary rules and practices of these institutions tend
to perpetuate these wrongs, we cannot redress them within those rules. May also sometimes be
propelled by anger or frustration at what he judges to be the intransigence of people in power;
motivates others to act; eschews deliberation because he feels that powerful officials have no
motive to sit down with him, and even if they did, they have power to unfairly steer the course
of the discussion. For this characterisation, author assumes that activist believes that violence is
neither morally nor politically acceptable but that he has the right to physically defend himself if
physically attacked.

1. Deliberative Judgement of Activism

- Reasons against activism from pov of deliberative democrats:
a. Activists engage in interest group politics rather than orienting their commitment to
principles all can accept. Instead – pressure group interest based politics. Activist, slightly
different, aim to win most for their group by lobbying etc., no obligation to discuss issues.
Activist response – Committed to a universalistic rather than a partisan cause; not usually
motivated by personal gain or the gain of groups at the expense of others. While suspicious
of deliberation, does not reject it altogether; tries to avoid complicity with the workings of
those institutions that produce structural inequalities.
b. Stance is flatly unreasonable. Activist declines to engage persons he disagrees with, relies on
emotional appeal, slogans, irony etc. Blanket labelling done, called extremist – can be seen as
a power ploy. Activist – reasonable here is having a range of alternatives in belief and action,
and person being able to justify his/her actions to others. Thus, activist reasonable in this
sense. Primary reasons for protest – to make a wider public aware of institutional wrongs
 and persuade that public to join him in pressuring for change in the institutions.

2. Deliberative processes are exclusive

- Ideal deliberative process – where everyone is the political equal of the other. Reality – powerful
elites representing structurally dominant. Elites exert their power party through managing
deliberative settings. Among themselves, they engage in debate about the policies that will
sustain their power and further their collective interests. Entrance to these deliberations are
tightly controlled; often not open to general observation, leave no public record; structural
inequality and exclusive power. Activists should instead use the power of shame and expose to
pressure the deliberators to widen their agenda and include attention to the assumptions made
in them etc. Eg. WTO Seattle meeting. DD – It is not a democratic process if it is exclusive and
non-public, even if deliberative. It requires publicity, accountability, and inclusion, and ought to
include representation of all affected interests and perspectives. She also considers the
deliberative process to be illegitimate if it does not meet these conditions. She considers the
activist protest a healthy means of deepening democracy, of creating open and inclusive settings
of deliberative democracy.

3. Formal Inclusion is not enough

- Sometimes, steps may be taken to make the process more inclusive. Open door to public and
press, publish proceedings and evaluations. Eg. Oregon wrt low-income health program. DD
vigorously advocates for creative ways to expand the publicity of deliberations about problems
and policy proposals and make them inclusive. Activist – suspicious; says that political elites
have greater access to deliberative process and therefore are able to dominate the proceedings
with their interests and perspectives. Under this condition of structural inequality, deliberation
restricted to agents with greater resources, knowledge, or ties. It is not taken into account that
some cannot afford to come to meetings and engage in deliberation. Activist thinks citizens
should atleast partially remain outside and should aim to speak on behalf of those de facto
excluded. Additionally, if they participate in these proceedings, they might help confer
undeserved legitimacy on them and fail to speak to those who remain outsiders. Wrt WTO
example, agenda already decided, minimal time to answer questions or prepare speeches,
mostly listening to WTO heads or other powerful figures. DD – citizen should engage and argue
with those who design and implement these settings to persuade them that they should devote
thought and resources to activities that will make them more inclusive.
- So far, both DD and Activist have criticised formal and de facto exclusion, but they differ in how
optimistic they are about whether political agents can be persuaded that there are structural
inequalities, the remedy for which an inclusive deliberative public ought to agree on.

4. Constrained Alternatives
- Going to the table to meet with representatives gives both the institution and deliberative
process too much legitimacy, co-opts the energy of citizens, leaves little time to mobilise them to
fight against the institutional constraints from the outside. Thus, activist thinks they ought to
withdraw from implicit acceptance of structural/ institutional constraints. Eg. welfare activists
refusing to join the council as the constraints federal and state laws put on welfare policy make
it impossible to administer a humane welfare policy. No power to expand number of offices or
get more funds, to decide who is eligible etc. DD – seem to find no problem with structures and
institutional constraints that limit policy alternatives in actual democracies. Activist – to extent
that institutional constraints on policy alternatives assume existing patterns of class inequality,
racial segregation, and gender division of labour, there is little difference among the alternatives
debated. Makes it nearly impossible for structurally disadvantaged to propose solutions to social
problems that might alter the structural positions in which they stand. DD should create an
inclusive deliberative setting in which basic social and economic settings can be examined, such
 settings to be outside of and opposed to ongoing official political discussion for most part.

5. Hegemonic Discourse
- Response to the above challenge, proposing to create deliberative fora removed from
immediacy of given economic imperatives and power structures. However activist worried that
majority of participants in such a reflective deliberative setting will be influenced by a common
discourse that itself is a complex product of structural inequality. Discourse – stories and expert
knowledge diffused throughout society and convey the widely accepted generalisations. In a
society with longstanding and multiple structural inequalities, some such discourses are
hegemonic: most of the people in a society think about their social relations in these terms,
whatever their location in the structural inequalities. Not genuinely free consent – false
consensus as systematically distorted communication (Habermas). Not threats or coercion, but
subtler – refers to how conceptual and normative framework of members of the society is
deeply influenced by premises and terms of discourse that make it difficult to think critically
about aspects of their social relations or alternate possibilities of institutionalisation and action.
- James Bohman’s deliberative theory – structural inequalities operate effectively to magnify the
political influence of some while blocking the others. Test – degree to which groups may not
only gain a hearing but are able to initiate discussion on problems and proposals.
- Conceptualistic and imagistic frame of discussion may be distorted/contain falsifications etc.
- Media contributes to naturalising assumptions and makes it difficult for participants to speak
outside of a certain set of concepts and images. One of the activist’s goals – make us wonder
about what we are doing, to rupture a stream of thought, rather than to weave an argument.

Conclusion
- Both important for democratic practice and theory
- Two conclusions about where democratic theory should go:
1. DT should keep distance from democratic practices in existing structural circumstances;
resist temptation of ideals; should be understood as primarily a critical theory which exposes
the exclusions and constraints in supposed fair processes.
2. Even if we take a broader understanding where individuals express their opinions in a DD in
a more rowdy or disorderly manner through sit-ins (Habermas terms), individuals and
organisations seeking to undermine injustice need both to engage in discussion with others
to persuade them to direct action. However, they cannot occur together, and one tends to
eclipse the other. Best democratic theory will affirm both while recognising the tension
between them.
 Tutorial Notes:

- Questions relating to scope and applicability of laws. Law in books v. Law in practice.
Example of CRC Draft Constitution, where ADR Board was being questioned as to whether it
was irrelevant after constitutionalising ADR Committee. Expertise from ADR board v. mostly
“popularity contest” elected ADR Committee
- Delegated Legislation – ambit given by the legislature, power given to the executive to form
laws
- Questions can be of paragraph form; may be asked to identify different schools or thinkers;
different concepts within these schools etc.
- Question on why we would need to study LM – imp for Dhanda ma’am.
Draw comparisons between all the schools; between the ideas behind the schools and the
reality; bias of judges shaping judgements; application of laws which may be politically
motivated.

Judiciary steps in if conflict between the state and the centre

- Lower courts cannot look at interpretation of statutes, only the Supreme Court and High
Courts.

Supreme Court
1. Original Jurisdiction
2. Appellate Jurisdiction
3. Advisory Jurisdiction
4. Writ Jurisdiction
- Article 32
- In cases where FRs are breached, then SC can give remedy by nature of any of the five
writs – Habeas Corpus (some act on the part of the state which has deprived you of
your right to life and liberty), Mandamus (order a lower authority to do or not to do
something), Quo Warranto (asking someone by what authority they occupy a certain
office with), Certiorari (ask a lower court to produce a record before you), Prohibition
(stop proceedings before a lower court).

High Court
1. Writ Jurisdiction
- Same 5, but more wider scope under 226.
2. Appellate Court
- Wider scope, on appeal from lower courts.
3. Supervisory Jurisdiction
- Have supervisory powers over all lower courts in their jurisdiction. Looks into which
judges transfer, which judges look at cases on which topics, etc.

Three Judges cases:

1. SP Gupta v. UoI
- Collegium system formed
 2. Advocates on Record Association v. UoI
- 4 judges of the SC form part of the collegium
3. In Re Presidential Ref
- To see the role of the executive. If executive vetoes a name, then they cannot be made
a judge.

To answer a question:

- First talk about the system eg Gaavki. Then go to its positivist aspects, then ideational or
normative. Then go to the critical schools to analyse.
Module 2: How legislature and executive interact, common points etc.

- Reasons for having xyz provision, need not remember other pointless details
- Why do they exist in the first place, how are they separated?
- Overlaps and interrelations between the 3 organs. Exec performing judicial, legislative functions
etc.
- Delegated legislation – ambit of parental legislation
- Interpretation
- Evaluation
Module 3:

- History, but not facts, how it came about, why rules were considered rules etc.
- Law v. policy – dworkin

Things to take note of

- How do institutions and ideas come together to make a law?

- Law v. practice – which one should institutions take note of?
- Transparency and involvement of people - deliberation etc.
- Legality v.legitimacy
- Fletcher – law borrowing from other disciplines – political, social etc.
- Libertarianism v. Utilitarianism
 Legal Methods
Prof. Faizan Mustafa

Islamic Legal System

- Recognition of individuality of females, right to say no to marriage etc., was a revolution in

recent years.
- Islam derived from word Salaam, which means peace; means submission to god. When someone
first said this, it was also a revolution
- Error 404: no point found
- “Whoever is in power indulges in persecution of minorities”?
- When the state adopts a religion, they tend to impose that religion on its citizens. When the
influence of state goes, then they may have freedom to choose
- Prophet Mohammed did not bring Islam. The reason it spread was that it was already a religion.
He just affirmed earlier Prophets. He also reaffirmed Judaism. Jesus and Moses appear more in
the Quran than Mohammed. This is why people were able to get connected to it.
- Cannot be a Muslim if they do not believe in Jesus and the Bible. It affirms all previous Prophets.
- It affirmed other religions, which is why marriage can happen with them and Christians/Jews
without converting them.
- Societies move from status to contract. Progress is judged on this basis. Critiques Eastern
societies for being status based, rather than contract; no flexibility or mobility.
- Substantial part of Islamic law borrowed from Roman law. It was a contractual law because it
was borrowed from Arab traders; dealing with a trading community. Since they were trading
with the Romans, roman law influenced Islam. Therefore, Islam law is not largely divine, and
hence amendments and reforms are possible. Islamic law, like Roman Law, is also largely private.
- State does not have the power to violate fundamental rights – negative restrictions on the
power of the state.
- Law-making in Islam is an enterprise. Juristic, progressive, contract based, etc.
- “If there was a state sponsored conversion in India, how is there still a Muslim minority in
India?” – bro, we know you want to defend it, but is this really the way?
- Humans have to interpret the laws. Original texts may be sacred, but not the interpretation. This
is because the interpretation is jurist-driven and have not been given by the divine.
- Pervasive aspect of Islamic Law is Mercy. We need to see who needs this mercy more while
interpreting laws. Underlying tendency of Islamic Law was thus to favour the underprivilege.

- Basis of Sharia law:

1. Wahi (Divine)
 Minimum divine, maximum scope of interpretation
2. Aql (Human Reason)
 Have to deduce and speculate law.

- Dual Identity of Islamic law, which Prof. says that most of India does not understand, resulting in
the triple talaq judgement.
1. Shariah – bears a stronger affinity to divinity. Based on Quran, which is a religious text. It is
not law. Shariah Application Act 1987 – equated with Fiqh, and with law, but it is not law. If
Muslim law is divine, then no scope for reform because Muslims will see it as the word of
 God, and hence would not want to change it. If Muslims don’t see possibility for reform,
then other religions will not see it possible within Islam either.
2. Fiqh – law. It is a rational endeavour primarily based on speculative reasoning.
 Therefore, Quran in itself is not a source of law, neither legal nor a constitutional document.
However, it is divine. Apart from this, all other sources are human.
 Should not be looked at from divinity perspective, but from human perspective.
 Quran is religion, not law. Law is divine, but not to a large extent. Which is why
amendments and new interpretations are possible.

- Sources
1. Sunna (Tradition)
2. Juristic Reasoning
3. Qiyas
4. Ijma
5. Istihsan
6. Istiscah
7. Uri

- Islam does not believe in the universality of law; they believe in localisation, local customs and
practices etc.
- “God decided that he wouldn’t give us law as a finished product”?
- What does a jurist do in Islamic la3w – he formulates a rule based on the evidence found in
sources.

- Islamic Law v. Common Law

- Islamic law v. Roman Law; both jurist driven
 In Roman law – state and jurist were working in Tandem. Jurist under Roman law in
controlled by the state
 The state does not control a Jurist under Islamic law. Jurists used to even refuse state
appointments.
- Second wife in Hindu law has less rights than in Muslim law. Not allowed for a muslim to have a
second wife unless he can do complete justice to that wife.

Out of context VC quotes <3

- “Each apple tastes different. You have to cut it into two”

- “Leave the second wife high and dry”
- “She wants to marry you, you want to marry her, and then her husband dies.”
(Um, where are you going with this?)
- “Lipstick will help you from being divorced. Along with Biryani making skills.”