Jurisprudence

Jurisprudence is the study of legal principles. It can be scientific, philosophical, and historical.
It lays down the foundation of law. It explains the history and rationale behind the concept of
law.

Name of Sources of law Prominent theories Important

school thinkers notable work
exponent
supporters
Analytical It takes the Bentham, austin, Austin’s
/imperative legislation as the salmond, HLA imperative
source of law. Hart, kelson theory of law,

Natural school Socrates, plato Renaissance U6

and Aristotle theory, social
(ancient). contract, modern
(Medieval) – theory.
Aquinas, and
Augustine
Revival phase –
fuller and
stamler
Historical Montesquieu,
burke, savignyi,
henry maine

Sociological Hobbs, locke,

russou

Philosophical

Realist

Positive
Question of law, question of fact ad role of sanctions

12/09/23
Natural law: these are the set of universal principles and rules that properly govern moral human
conduct.
Greek philosophy
Sophists:
The Greeks were the earliest to have a conception of Keeton of natural law principles. For the
sophists natural justice was a body of permanent unchangeable and non – negotiable rules
which were never arbitrary and always applicable equally to all human beings.
Plato’s contribution to natural law theory:
Plato believed in the idea of justice and not law as law is an abstract concept which cannot be
applied to complex situations. His ideas of law and justice revolved around his fundamental
belief in the inmate inequality of human beings. He opined that nature has endowed human
beings with varying degrees of capacity and thus he justified the creation and continuity of
class system in a society based on division of labor.
Philosopher king – gold
Auxillary – silver
Farmers –
Trader –
Only farmers and traders were allowed to keep and buy land and property.
Aristotle's idea of natural law: His perception of law was based on a deal and pragmatic
understanding of human nature. Aristotle believed that Plato’s conception of justice demanded
exceptional nobility from individuals which was anti thesis of average human nature. He
conceived man as a part of the nature and rationality was endowed to human beings and thus
humans are best of animals when controlled by law.
Natural Law – Its Meaning and Definition
There is no unanimity about the definition and exact meaning of Natural Law. In jurisprudence
the term ‘Natural Law’ means those rules and principles which are supposed to have originated
from some supreme source other than any political or worldly authority. It is basically a priori
method different from empirical method, the forms, accepts things or conclusions in relation to
a subject as they are without any need or enquiry or observation while empirical or a posteriori
approach tries to find out the causes and reason in relation to the subject matter.
It symbolizes Physical Law of Nature based on moral ideals which has universal applicability
at all places and terms. It has often been used either to defend a change or to maintain status
quo according to needs and requirement of the time. For example, Locke used Natural Law as
an instrument of change but Hobbes used it to maintain status quo in the society. The concepts
of ‘Rule of Law’ in England and India and ‘due process’ in USA are essentially based on Natural
Law. Natural Law is eternal and unalterable, as having existed from the commencement of the
world, uncreated and immutable.
Natural Law is not made by man; it is only discovered by him. Natural Law is not enforced by
any external agency. Natural Law is not promulgated by legislation; it is an outcome of
preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law.
Natural Law has no formal written Code. Also, there is neither precise penalty for its violation
nor any specific reward for abiding by its rules. Natural Law has an eternal lasting value which
is immutable. Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc.
Divine Law means the command of God imposed upon men. Natural Law is also the Law of
Reason, as being established by that reason by which the world is governed, and also as being
addressed to and perceived by the rational of nature of man.
It is also the Universal or Common Law as being of universal validity, the same in all places
and binding on all peoples, and not one thing at Athens. Lastly in modern times we find it
termed as “moral law” as being the expression of the principles of morality. The Natural Law
denies the possibility of any rigid separation of the ‘is’ and ‘ought’ aspect of law and believes
that such a separation is unnecessarily causing confusing in the field of law. The supporters of
Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have been drawn from the
nature of man and the Law of Nature and, therefore, this aspect cannot be completely eliminated
from the purview of law. It has generally been considered as an ideal source of law with
invariant contents.

Natural law theories in Ancient Period

Ancient theories of Greek period
It is believed that the Greeks were the first Ancients who discovered the concept of natural law
and developed its essentials. At that time in Greece, there was no political stability which made
jurists think to develop new universal principals that would tackle and control the arbitrariness
and tyranny. The philosophy developed by the Greek thinkers was that if there is anything
universally valid, that is valid by Nature for all men irrespective of time and country. And nature
is something which is outside the control of men.
Socrates
He was a rational thinker and an enlightened master believed in human ‘insight’. He believed
that moral is the higher law. According to him man has his own insight which help him to know
what is good or what is bad, thus man should act accordance with his insight. He believed that
through his insight a man is able to inculcate moral values in him.
Aristotle
Aristotle is considered to be the founding father of natural law. In his logic, the whole world is
the product of nature. He divides the life of man into two parts, first, that the man is the creature
which is created by god and second he endowed with active reason by which he is capable of
forming his will. He also says that the principal of natural justice can be discovered by this
reason.
Plato
Plato’s work was much inspired by subsequent speculation of natural law themes. He opined
that God gave to all men an equal sense of justice and of ethical reverence so that they can
preserve themselves in the struggle of life. He believed that the justice is a harmony of man’s
inner life and it can be achieved by reason and wisdom of man. In his ideal state each individual
is given a particular role according to his capacity.
Natural law in Ancient Rome
Natural law exercised a very constructive influence in Roman law. Romans applied natural law
to transform their narrow and rigid system into cosmopolitan. They had three divisions of law
viz., jus civile or civil law which was applicable on Roman citizens only. Jus gentium, the law
which is applicable on foreigners. And jus naturale was the law fixed by nature, immutable and
above to all human laws discovered by right reasons. On the basis of natural law roman
magistrates applied those rules which were common with foreign laws and to foreign citizens.
The body of rules which was developed in this processes was called jus genitum. These laws
were considered as the laws with universal legal principles and represented a good sense of
justice. Later on, jus civile and jus genitum became one when Roman citizenship extended all
over the Europe. There was unanimity among Roman jurists that whenever any contradiction
arose between Natural law and Positive law, former would prevail.
Cicero
Cicero believed that the law is the highest reason which derives its authority from Nature. He
opined that there is divine reason inherent in the universe which sometimes can be more or less
identified with the physical ordering of the universe. Man is the highest creation by virtue of
his faculty of reasoning and his welfare is the ultimate purpose of his creation, thus this reason
commands what ought to be done and what ought not be done. It is reason of the man by which
the sense of justice and injustice can be measured.
Stoics
Stoics was inspired by the principles of Plato’s theory of natural law and developed his own
theory. He says that the entire universe is governed by reason. Man is a part of the universe that
is also governed by reason. It is the reason of man which leads him to live according to the
nature. His theory of natural law had a great influence at the time of republic period.
Natural Law in Ancient India
Ancient Hinduism is the oldest religion in the world and much earlier to Greeks and Romans
the early rig Veda thinkers were deeply impressed by the forces and powers of nature. They
began to think about the natural powers such as the sun, the moon, the rains, the wind, the
storms, and lightning, etc. And they also began to put themselves into the questions that why
does the sun not fall down? Where go the stars by day? What is the reason behind the lightning
in the sky? The most prevalent perception was that the forces of nature were all represented by
divine forces of nature. In Ancient India the high moral law was always seen above the positive
law with universal validity like dharma “righteousness”, Artha “wealth” Kama “desires” and
moksha “salvation”. It was dharma in which the ethos of Indian way of life was characterised.
In the Vedas different gods had been mentioned who were responsible for different natural
phenomena. It is the God “Varuna” who was very important in Vedic time. He was considered
as the apostle of justice, virtue, and righteousness in the universe. He is also given the status of
sky guardian of “Rita” in Vedas. “Rita” is the cosmic order, the ordered course of things in the
universe which is based on the laws of uniformity of nature and universal causation.
Law of Rita
“Rita” is “satya” and “dharma” truth, justice and equity. Rita also means social order in the
society and the Vedic Gods were also responsible to maintain social order. Rita played an
important role in building an organised social life in the Vedic society. It provided social norms
and morality under which individual could realised his goods. In Vedas the Rita is defined in
moral sense as the unerring inner voice of conscience which tells us” this is Rita” that means
simply “this is right”, “this is true”.
Rita literally means “the straight line”. According to the MAX MULLER Rita in the Vedas
applies as the straight line for the natural force and powers such as the straight line for the sun,
the straight line for day and night, the straight line that regulates seasons, and straight line for
the universal natural phenomena. Rita also defined morality under the purview of its straight
line that means there is a straight line in the society which decides just and unjust.
Dharma
Dharma means “righteousness” and prescribes socio-religious code of conducts in the society.
It is known as the customs, moral laws, laws and duties in general, religious virtue ideas,
absolute truth, divine justice, conventional code of customs and traditions, what is right and
what is wrong. Individuals should pursue that is right universally instead of that is wrong. Its
principles are immutable, eternal, based on reason, truth and morality that purpose is to sustain
social order.
According to PANINI, a great Sanskrit grammarian of 5th century BC Dharma is an act of
religious merit, custom and usage. Dharma was considered as the regulator of all human
activities weather social or individual, rational or mystical and mundane or spiritual. Dharma
states that the social hierarchy must be maintained by the individuals by performing their
respective duties which have been assigned to them by nature. It established an ideal of higher
law by which the ruler and the ruled were equally bound and it was the model indicator to
distinguish between evil and good, right and wrong, just and unjust.
SAMKHYA was one the Philosophies that emerged around fourth century AD, according to
this school of philosophy “the world owes it creation and evolution from nature or prakriti.
Kapila was earliest exponent of SAMAKHYA. He opined that man’s life is shaped by the forces
of nature and not by any divine agency.
Natural law in medieval Period
During the middle ages, the theological and philosophical ideas of catholic church Inspired by
the speculative thoughts and set up their own theory of Natural law. It was the time when there
was no political stability in a world emerging from the dark ages. The struggle was beginning
between the church and the state and there was the need for the church to establish its
supremacy. With a view to establish stability many catholic philosophers and theologians came
up with their theories that were more logical and systematic. Thomas Aquinas was the most
influential writer with the traditional approach to Natural law and his famous work was the
Summa Theologica. Thomas Aquinas
The core concept of the theory of Thomas Aquinas was the connection between means and
ends. According to him there is a relation in nature of things between a given operation and its
result. There is a tendency to develop in a certain way is inherent in things. Fire burns but it
does not freeze. However, the human mind can appreciate the relation between the means and
ends. He can himself choose a particular end and devise means of achieving and law consist
means of achieving the ends.
He defined law as “an ordinance of reason for the common good made by him who has the care
of the community and promulgated”. Further he divided law into four categories –
Eternal Law ( Lex aeterna)
Natural Law (Lex Naturalis)
Divine Law (Law of Scriptures)
Human Laws (Lex Humana)
According to him eternal law as unchangeable law, natural law was that part of eternal law
which can be revealed by reason as he stated that man is a rational animal and he can decide
what is good by reflecting his own impulses and nature. Divine law is eternal law revealed
through scriptures and the church has the authority to interpret it. Human laws are the laws
made by the state with the purpose of safety and wellbeing of the men. However, these laws
must be in conformity with the natural laws.
If the human law is contradictory with natural law then it is unjust law as he gave the phrase
“Lex iniusta non est lex” an unjust law is not a law, and such unjust laws need not to be
followed. Hugo Grotius set up a new dimension of natural law. He states that natural law is so
immutable even it cannot be changed by god that means natural law is independent from every
divine force and it would exist if there were no God. According to him natural law is depend
upon the nature of the man and he called human nature as the grandmother, natural law the
parent and positive law the child. He also emphasised on the sovereign authority which is
formed by the individuals whose nature is to form an intellect desire a peaceful society and
from that are derived the principles of natural law.
Natural law and Social Contract theory
The period of Renaissance and revolutions in Europe and America pave the way for the spiritual
emancipation for the individuals. Political absolutism needed a legal justification of its claim
over unlimited authority over the people. The legal construction used by the individuals in the
political struggle was that of social contract.
The concept of social contract is hypothetical construction of reason. The perception regarding
the social contract is that men in primitive society lived under the state of Nature; they neither
had government nor any law. According to some philosophers that state of nature was full of
hardships and oppressions while by some others there was bliss and joy. Men entered into an
agreement for the protection of their life and property and thus society came into existence. In
this society they undertook to respect each other and live with peace. In another agreement they
surrendered whole or a part of their freedom and rights to a sovereign authority which
guaranteed every one of them the protection of life, property and to certain extent liberty. This
was the process in which the sovereign authority was established. The main exponents of social
contract theory were Hobbes, Locke and Rousseau.
Hobbes
Hobbes understood natural law not certain ethical principles but the law of nature based on
observation and appreciation of human nature. According to him the chief principle of natural
law was the right of self-preservation. In his state of nature man lived in a chaotic state and his
life was under fear and selfishness. In that state of nature there was perpetual and devastating
warfare which threatened everyone. Under these prevailing circumstances, natural reason
dictated to man the rule of selfpreservation for which he tried to escape from the state of
permanent insecurity. Resulted to which they surrendered all their natural rights to a single
person whom they promised to obey unconditionally. The principle of self-preservation means
man has natural desire for security and order. Law of nature can be discovered by reason which
says what a man should do or not to do. During his time the England was under the civil war
and this situation convinced him of a great importance of state authority which he wanted to be
vested in an absolute ruler.
John Locke
John Locke’s state of nature was state of peace, goodwill, mutual assistance and preservation
which was contrary to Hobbes’ state of nature. He was in favour of individualism and therefore
According to him, Natural law gives more power to individuals than the sovereign. According
to him individuals’ natural rights are inalienable; among them the right to property was
foremost. In his state of nature men had all the rights which nature could give them. But they
did not have an organisation which could regulate these rights.
According to him the right of private property existed prior to any social contract. With the
purpose of protection of property men entered into a social contract. Under this contract they
surrendered only a part of their rights in order to maintain law and order in society. Some natural
rights like right to property, liberty and life were vested in the individuals.
Rousseau
According to Rousseau social contract is the hypothetical construction of reason. In his state of
nature every individual a free life of a savage. He neither knew right nor wrong and there was
no private property, no jealousy and no competition. There was innocence everywhere.
However, this state of affairs did not last long. In due course of time people started to think
about their possessions and the differences between the rich and poor came into picture which
became the reason of inequality.
In order to tackle these problems, people entered into a contract in which they surrendered their
rights to the community as a whole. Hence, the right of the individual were the rights of the
community. Rousseau’s emphasise was on the general will of the society and the sovereign
power was bound to do that which was in common good of the society.
Decline of Natural of Natural law theory in 18th Century
In 18th century the social contract theory saw its decline. Natural law theory was reflected by
the economic and political changes which had taken place in Europe. These new changes and
developments required concrete and political solutions. The stupendous growth of natural
science and new political theories gave strength to empirical methods and rejected deductive
methods. There were many historians and philosophers who rejected natural theory by saying
that it was just a myth.
Hume showed that the reason understood in the system of natural law was based on confusion.
And neither values nor justice are inherent in nature. According to Bentham natural law is
nothing but a phrase. He criticised natural law and called it “simple and rhetorical nonsense”.
His view regarding the principle of equality was negative as he said that “Absolute inequality
is absolutely impossible” and absolute liberty is directly repugnant in any kind of government.
Austin was also against natural law theory and according to him it was ambiguous and
misleading. He says that all the natural rights of the individuals were created and regulated by
the state and the state did not originate in a social contract.
Modern Period
19th Century Hostility towards Natural Law
The Natural Law theory received a setback in the wake of 19th century pragmatism. The
profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on the
ground that it was ambiguous and misleading. The doctrines propagated by Austin and Bentham
completely divorced morality from law. In the 19th century, the popularity of Natural Law
theories suffered a decline. The ‘Natural Law’ theories reflected, more or less, the great social
economic and political changes which had taken place in Europe.
‘Reason’ or rationalism was the spirit of the 18th century thought. A reaction against this
abstract thought was overdue. The problems created by the new changes and individualism
gave way to a collectivist outlook. Modern skepticism preached that there are no absolute and
unchangeable principles. Priori methods of the natural law philosophers were unacceptable in
the emerging age of science. The historical researches concluded that social contract was a
myth. All these developments shattered the very foundation of the Natural Law theory in 19th
Century. The historical and analytical approaches to the study of law were more realistic and
attracted jurists. They heralded a new era in the field of legal thought. In this changed climate
of thought it became difficult for the ‘Natural Law’ theories to survive. Therefore, though
solitary voices asserting the superiority of ‘Natural Law’ are still heard, the 19th century was,
in general, hostile to the ‘Natural Law’ theories.

20th Century Revival of Natural Law

Towards the end of the 19th century, a revival of the ‘Natural Law’ theories took place. It was
due to many reasons: First, a reaction against 19th century legal theories which had exaggerated
the importance of ‘positive law’ was due and theories which overemphasized positivism failed
to satisfy the aspirations of the people because of their refusal to accept morality and ‘reason’
as element of law; Second, it was realized that abstract thinking or a priori assumptions were
not completely futile; Third, the impact of materialism on the society and the changed socio-
political conditions compelled the 20th century legal thinkers to look for some value-oriented
ideology which could prevent general moral degradation of the people. The World War 1 further
shattered the western society and there was a search for a value-conscious legal system. All
these factors cumulatively led to revival of Natural Law theory in its modified form different
from the earlier one. The main exponents of the new revived Natural Law were Rudolf
Stammler, Prof. Rawls, Kohler and others.

Rudolf Stammler (1856 – 1938)

Stammler defined law as, “species of will, others-regarding, self-authoritative and inviolable”.
For him, a just law was the highest expression of man’ social life and aims at preservation of
freedom of individuals. According to him, the two fundamental principles necessary for a just
law were: (1) principles of respects, and (2) the principle of community participation. With a
view to distinguishing the new revived Natural Law from the old one, he called the former as
‘Natural Law with variable content’. According to him, law of nature means ‘just law’ which
harmonizes the purposes in the society. The purpose of law is not to protect the will of one but
to unify the purposes of all.

Professor Rawls
Professor Rawls made significant contribution to the revival of Natural Law in the 20th century.
He propounded two basic principles of justice, namely, (1) equality of right to securing
generalized wants including basic liberties, opportunities, power and minimum means of
subsistence; and (2) social and economic inequalities should be arranged so as to ensure
maximum benefit to the community as a whole.

Kohler
As a neo-Hegelian, Kohler defined law as, “the standard of conduct which in consequence of
the inner impulse that urges upon men towards a reasonable form of life, emanates from the
whole, and is forced upon the individual”. He says that there is no eternal law and the law
shapes itself as the society advances morality and culturally in course of evolution. He tried to
free the 19th century Natural Law from the rigid and a priori approach and attempted to make
it relativistic, adapting itself to the changing norms of the society.

The approaches of these philosophers are very scientific and logical and are free from the
right and a priori principles.

Lon Luvois Fuller (1902 – 1978)

He rejected Christian doctrines of Natural Law and 17th and 18th century rationalist doctrines
of Natural Rights. He did not subscribe to a system of absolute values. His principal affinity
was, with Aristotle. He found a “family resemblance” in the various Natural Law theories, the
search for principles of social order. He believed that in all theories of Natural Law it was
assumed that “the process of moral discovery is a social one and that there is something akin
to a ‘celebrative articulation of shared purposes’ by which men come to understand better their
own ends and to discern more clearly the means for achieving them.” To fuller, the most
fundamental tenet of natural law is an affirmation of the role of reason in legal ordering.

Hart
Hart, the leader of contemporary positivism, though critical of Fuller’s formulation, has
attempted to restate a national law position from a semi-sociological point of view. Hart points
out that there are certain substantive rules which are essential if human beings are to live
continuously together in close proximity. “These simple facts constitute a case of indisputable
truth in the doctrines of natural law”. Hart places primary emphasis here on an assumption of
survival as a principal human goal. “We are concerned”, he says, “with social arrangements for
continued existence and not with those of suicide clubs. There are, therefore, certain rules which
any social organization must contain and it is these facts of human nature which afford a reason
for postulating a ‘minimum content’ of Natural Law”

Finnis
Finnis who in his writing ‘Natural Law and Natural Rights’, restated the importance of natural
law. For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering human
life and human community. Drawing on Aristotle and Aquarius, Finnis sets up the proposition
that there are certain basic goods for all human beings. The basic principles of Natural Law are
pre-moral. These basic goods are objective values in the sense that every reasonable person
must assent to their value as objects of human striving.
Conclusion
This brief survey of the content of ‘Natural Law’ has varied from time to time. It has been used
to support almost any ideology, absolutism, individualism and has inspired revolutions and
bloodshed also. It has greatly influenced the positive law and has modified it. The law is an
instrument not only of social control but of social progress as well, it must have certain ends.
A study of law would not be complete unless it extends to this aspect also. The ‘Natural Law’
theories have essentially been the theories regarding the ends of law. The ‘Natural Law’
principles have been embodied in legal rules in various legal systems and have become their
golden principles.
critically analysis the reason of the revival of natural law. Do you think revived form of natural
law is value loaded, value oriented and value conscious
The revival of natural law can be attributed to a number of factors. One reason for the revival
of natural law is the development of positivism in the 19th century, which posits that laws are
created by human beings and are not based on any inherent moral principles. This led to a
backlash against positivism and a renewed interest in natural law, which holds that there are
universal moral principles that underlie the laws of nature and that are the basis for human laws.
Another reason for the revival of natural law is the emergence of various social and political
movements in the 20th century, such as the civil rights movement, that sought to challenge and
change existing laws and legal systems that were seen as unjust or discriminatory. These
movements often appealed to natural law principles, such as the inherent dignity and rights of
all human beings, in order to argue for legal and social change.
As for whether the revived form of natural law is value loaded, value oriented, and value
conscious, it could be argued that it is all of these things. Natural law is based on the idea that
there are certain universal moral values that should inform the laws and legal systems of society.
These values may include justice, equality, and the inherent dignity of all human beings.
Therefore, natural law is value loaded in that it is based on a set of specific moral values. It is
value oriented in that it seeks to orient laws and legal systems around these values. And it is
value conscious in that it is aware of and seeks to uphold these values in the laws and legal
systems of society.

examine the nature of jurisprudence and state its utility and relevance in modern
legal education
Jurisprudence is the study of law and the legal system. It involves the examination of the nature
of law, the sources and principles of law, the role and functions of law in society, and the
relationship between law and other social, political, and philosophical concepts.

Jurisprudence is a broad and multifaceted field that encompasses a wide range of

subdisciplines, including legal theory, legal history, legal anthropology, legal sociology, and
legal philosophy. It is a discipline that is concerned with the theoretical and conceptual
foundations of law, as well as with the practical and empirical aspects of the legal system.
The utility and relevance of jurisprudence in modern legal education lies in its ability to provide
a deeper understanding and appreciation of the law and the legal system. By studying
jurisprudence, students can learn how to think critically about the law and how to analyze and
interpret legal texts and cases. Jurisprudence also helps students understand the social and
political context in which the law operates, and how the law is shaped by and affects society.

In addition, the study of jurisprudence can help students develop the skills and knowledge
necessary to become effective and ethical lawyers. It can provide a framework for legal
reasoning and decision-making, and help students understand the role and responsibilities of
lawyers in society. Overall, the study of jurisprudence is an essential part of legal education
and is essential for those who wish to understand and work within the legal system.

Do you think revived form of natural law is value loaded, value oriented and value conscious
As I mentioned in my previous response, the revived form of natural law could be considered
value loaded, value oriented, and value conscious.
Natural law is value loaded in that it is based on a set of specific moral values, such as justice,
equality, and the inherent dignity of all human beings. These values inform the principles of
natural law and serve as the basis for the laws and legal systems of society.
Natural law is value oriented in that it seeks to orient laws and legal systems around these moral
values. It is concerned with ensuring that the laws and legal systems of society reflect and
uphold these values, and that they are used to promote the common good.
Natural law is also value conscious in that it is aware of and seeks to uphold these values in the
laws and legal systems of society. It recognizes the importance of these values and works to
ensure that they are protected and promoted in the legal system.
Overall, natural law could be seen as value loaded, value oriented, and value conscious because
it is based on moral values, seeks to orient laws and legal systems around these values, and is
aware of and seeks to uphold these values in the legal system.

explain austin command theory and his Tacit command theory. can you sovereign in india
John Austin's command theory of law is a theory of legal positivism, which holds that laws are
created by human beings and are not based on any inherent moral principles. According to
Austin, the essence of law is the command of a sovereign, which is an individual or group that
has the authority to make and enforce laws within a particular jurisdiction. The sovereign issues
commands, or laws, which are backed by the threat of punishment if they are not obeyed.
Austin's command theory has several key features. First, it holds that laws are the commands
of a sovereign and are not based on any moral principles. Second, it posits that the sovereign
has the right to make and enforce laws, and that the authority of the sovereign is not subject to
any higher authority or legal system. Third, it asserts that the purpose of laws is to regulate the
behavior of individuals and to maintain social order.
Austin's Tacit command theory is an extension of his command theory of law. According to this
theory, a person is subject to the law not only when they are explicitly told what to do or not to
do, but also when they are aware of the expectations and duties that are imposed on them by
the law. In other words, a person's acceptance of the law and their willingness to abide by it is
enough to make them subject to the law, even if they have not been explicitly told what to do
or not to do.
As for whether there is a sovereign in India, it could be argued that the President of India, who
is the head of state, could be considered a sovereign in a limited sense. The President holds a
ceremonial role and does not have the power to make or enforce laws. However, the President
does have the power to issue ordinances, or executive orders, which have the force of law. The
President also has the power to appoint judges and to grant pardons, among other powers. So,
in this sense, the President could be considered a sovereign. However, the real power to make
and enforce laws in India lies with the Parliament and the courts.
explain the various defination given by various jurist. also distinguish between
classical and modern jurisprudence

There have been numerous definitions of jurisprudence given by various jurists throughout
history. Here are a few examples:

1. John Austin defined jurisprudence as the "science of positive law." According to Austin,
positive law is the law that is made by a sovereign and is enforced by the threat of
punishment.

2. Herbert Hart defined jurisprudence as the "theoretical and philosophical analysis of

law." According to Hart, jurisprudence is concerned with the nature of law and its role
in society, as well as with the principles and concepts that underlie the legal system.

3. Roscoe Pound defined jurisprudence as the "sociological study of law." According to

Pound, jurisprudence should study the social and economic factors that shape the law,
as well as the way in which the law operates in society.

4. Ronald Dworkin defined jurisprudence as the "theory of the rule of law." According to
Dworkin, jurisprudence should focus on the principles that should govern the legal
system, such as fairness, equality, and justice.

In terms of the distinction between classical and modern jurisprudence, classical jurisprudence
refers to the traditional and long-standing approach to the study of law. It is often associated
with legal positivism, which holds that laws are created by human beings and are not based on
any inherent moral principles. Classical jurisprudence is also often concerned with the formal,
logical, and analytical aspects of the law.
Modern jurisprudence, on the other hand, refers to more recent approaches to the study of law
that have emerged in the 20th century and beyond. Modern jurisprudence is often more
concerned with the social, political, and philosophical foundations of the law, and with how the
law operates in practice. Modern jurisprudence also tends to be more critical and interpretive
in its approach, and is more likely to consider the moral and ethical implications of the law.

explain the various defination of jurisprudence given by various juris

Here are a few additional definitions of jurisprudence given by various jurists:

1. Jeremy Bentham defined jurisprudence as the "science of legislation." According to

Bentham, jurisprudence is concerned with the principles and techniques of law-making,
and with the ways in which laws can be made more efficient and effective.

2. Friedrich Carl von Savigny defined jurisprudence as the "science of the necessary
relations between legal norms and the life of the people." According to von Savigny,
jurisprudence should study the way in which legal norms reflect and shape the social,
cultural, and economic practices of a particular society.

3. Lawrence Friedman defined jurisprudence as the "theory of law." According to

Friedman, jurisprudence is concerned with the nature and function of law, and with the
principles and concepts that underlie the legal system.

4. Jules Coleman defined jurisprudence as the "theory of legal practice." According to

Coleman, jurisprudence should study the way in which legal principles and concepts
are applied in legal practice, and how the legal system operates in practice.

Overall, these definitions demonstrate the wide range of approaches and perspectives that have
been taken in the study of jurisprudence. Jurisprudence can be seen as a discipline that is
concerned with the theoretical and conceptual foundations of law, as well as with the practical
and empirical aspects of the legal system.

critically analysis the reason of the revival of natural law

The revival of natural law can be attributed to a number of factors. One reason for the revival
of natural law is the development of positivism in the 19th century, which posits that laws are
created by human beings and are not based on any inherent moral principles. This led to a
backlash against positivism and a renewed interest in natural law, which holds that there are
universal moral principles that underlie the laws of nature and that are the basis for human laws.
Another reason for the revival of natural law is the emergence of various social and political
movements in the 20th century, such as the civil rights movement, that sought to challenge and
change existing laws and legal systems that were seen as unjust or discriminatory. These
movements often appealed to natural law principles, such as the inherent dignity and rights of
all human beings, in order to argue for legal and social change.
Additionally, the revival of natural law can be seen as a response to the increasing globalization
and complexity of modern society. As society becomes more interconnected and
interdependent, there is a need for a set of universal moral principles that can provide a common
framework for understanding and addressing the challenges and conflicts that arise. Natural
law, with its emphasis on universal moral principles, can provide this framework.
Overall, the revival of natural law can be seen as a response to the limitations of positivism and
as a way to provide a moral foundation for the laws and legal systems of modern society.

what do you understand by pure theory of law?

The pure theory of law, also known as the "Kelsenian" or "normative" theory of law, is a theory
of law that is based on the idea that law is a system of norms or rules that regulate the behavior
of individuals within a society. According to the pure theory of law, law is a separate and distinct
system from other social, political, and moral systems, and it should be studied and analyzed
in isolation from these other systems.
The pure theory of law was developed by the Austrian legal scholar Hans Kelsen in the early
20th century. Kelsen argued that the law is a hierarchical system of norms, with each level of
the hierarchy derived from and dependent on the levels above it. At the top of the hierarchy is
the "basic norm," which is the fundamental principle that gives the legal system its authority
and legitimacy. All other legal norms are derived from and dependent on the basic norm, and
they serve to specify and detail the legal rules that govern the behavior of individuals within
the society.
According to the pure theory of law, the law is a self-contained system that operates
independently of moral and political considerations. The validity of a legal norm is determined
by its place in the hierarchy of norms, and not by its content or moral justifiability. This means
that the pure theory of law is a valueneutral theory of law that does not consider the moral or
ethical implications of the law.
Overall, the pure theory of law is a theory of law that emphasizes the formal, structural, and
systemic aspects of the legal system, and that seeks to analyze and understand the law in
isolation from other social and moral systems.

give a critical analysis of presupposition of basic norm

The basic norm, also known as the "Grundnorm," is a central concept in the pure theory of law
developed by Hans Kelsen. According to Kelsen, the basic norm is the fundamental principle
that gives the legal system its authority and legitimacy. It is the highest level in the hierarchy
of legal norms and serves as the foundation for all other legal norms.

One of the key presuppositions of the basic norm is that it is a purely formal and abstract
principle that does not have any specific content or meaning. The basic norm is not a concrete
legal rule or provision, but rather a general principle that serves to give the legal system its
authority and legitimacy.

Another presupposition of the basic norm is that it is accepted and accepted as valid by the
members of the society governed by the legal system. In order for the legal system to be
legitimate and effective, the basic norm must be accepted by the members of the society as the
source of the legal system's authority.

A third presupposition of the basic norm is that it is the ultimate source of the legal system's
authority and cannot be derived from or subject to any higher authority. The basic norm is the
foundation of the legal system and is not subject to the authority of any other legal or moral
system.

Overall, the basic norm is a central concept in the pure theory of law and is based on a number
of presuppositions about its nature and function in the legal system. It is a formal and abstract
principle that is accepted as valid by the members of the society governed by the legal system,
and that serves as the ultimate source of the legal system's authority.

what are the essential principles of nature school of law? Evalute th usefulness of
these principle in the development of principles of natural justice in India The natural school
of law is a tradition of legal thought that is based on the idea that there are universal moral
principles that underlie the laws of nature and that should inform the laws and legal systems
of human society. According to the natural school of law, these universal moral principles are
inherent in human nature and are discoverable through reason and natural law.
The essential principles of the natural school of law include the following:

1. The principle of inherent human dignity: This principle holds that all human beings
have inherent dignity and worth that should be respected and protected by the law.

2. The principle of natural rights: This principle holds that all human beings have certain
inherent rights that are protected by the law, such as the right to life, liberty, and
property.

3. The principle of the common good: This principle holds that the law should be used to
promote the common good of society, rather than the interests of specific individuals or
groups.

4. The principle of justice: This principle holds that the law should be fair, impartial, and
based on the principle of treating like cases alike.
These principles of the natural school of law have been influential in the development of
principles of natural justice in India. The principle of inherent human dignity, for example, has
been used to argue for the protection of individual rights and liberties under the Indian
Constitution. The principle of natural rights has also been used to argue for the protection of
fundamental rights, such as the right to life and freedom of expression. And the principle of the
common good has been used to justify the use of the law to promote the welfare and well-being
of all members of society.
Overall, the principles of the natural school of law have been useful in the development of
principles of natural justice in India, as they provide a moral foundation for the law and help to
ensure that the legal system is fair, just, and based on universal moral values.

Evalute th usefulness of these principle in the development of principles of natural justice in

India

The principles of the natural school of law, such as the principle of inherent human dignity, the
principle of natural rights, the principle of the common good, and the principle of justice, have
been useful in the development of principles of natural justice in India.
The principle of inherent human dignity has been used to argue for the protection of individual
rights and liberties under the Indian Constitution. The principle of natural rights has also been
used to argue for the protection of fundamental rights, such as the right to life and freedom of
expression. And the principle of the common good has been used to justify the use of the law
to promote the welfare and well-being of all members of society.
The principle of justice has also been important in the development of principles of natural
justice in India. The principle of justice holds that the law should be fair, impartial, and based
on the principle of treating like cases alike. This principle has been used to argue for the fair
and impartial application of the law, and for the protection of the rights and interests of all
individuals and groups in society.
Overall, the principles of the natural school of law have been useful in the development of
principles of natural justice in India because they provide a moral foundation for the law and
help to ensure that the legal system is fair, just, and based on universal moral values.

POSITIVIST SCHOOL OF LAW

Austin

As we know, according to Austin, there are three elements in law:

a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of desire.

Command is also an expression of desire which is given by a political superior to a

political inferior. The relationship of superior and inferior consists in the power which
the superior enjoys over the inferior because the superior has ability to punish the
inferior for its disobedience.

He further said that there are certain commands that are laws and there are certain commands
that are not laws. Commands that are laws are general in nature.
Therefore, laws are general commands. Laws are like standing order in a military station which
is to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or

persons whom a bulk of politically organized society habitually obeys and who does not himself
habitually obey some other person or persons. Perfect obedience is not a requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men

2. Human Law- Given by men to men

a. Positive Laws- Statutory Laws

b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were
societies prior to existence of sovereign and there were rules that were in prevalence. At
that point of time, there was no political superior. Law had its origin in custom, religion and
public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus,
the belief that sovereign is a requirement for law has received criticism by the Historical
and Sociological School of Thought. However, the above mentioned criticism is not
supported by Salmond. Salmond said that the laws which were in existence prior to the
 existence of state were something like primitive substitutes of law and not law. They only
resembled law. Salmond gave an example.

He said that apes resemble human beings but it is not necessary to include apes if we define
human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable
only to a particular domain. There are laws which are not universally applicable. Thus, laws
are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects need to be
communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws
cannot be expressed as commands. Greater part of law in the system is not in the nature of
command. There are customs, traditions, and unspoken practices etc. that are equally
effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a
Democratic state, laws exist not because of the force of the state but due to willing of the
people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists
no sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to International

Law. International Law represents law between sovereigns. According to Austin,
International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various
organs of the state. It comprises of various doctrines such as separation of power, division
of power etc. Thus, no individual body of a state can act as sovereign or command itself.
Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal

Laws have their origin in religion, customs and traditions. Austin’s definition strictly
excludes religion. Therefore, it is not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour
and essence. Justice is considered an end of law or law is considered a means to achieve
Justice. However, Austin’s theory is silent about this special relationship of Justice and Law.
 Salmond said that any definition of law which is without reference to justice is imperfect in
nature. He further said ‘Law is not right alone, it is not might alone, it a perfect union of the
two’ and

Law is justice speaking to men by the voice of the State. According to Salmond, whatever
Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice,
social welfare and law in the abstract sense. Austin’s definition lacked this abstract sense. A
perfect definition should include both ‘a law’ and ‘the law’.
10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we
devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by
Austin.

Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of
law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount
truth that law is created and enforced by the state.

KELSON (1881-1973) Kelson’s Theory of Pure Science of Law / Pure theory

Kelson was not in favors of widening the scope of jurisprudence by co-relating it with other
social sciences. He insisted on separation of Law from politics, sociology, metaphysics and all
other extra- legal disciplines. Kelson tried to rescue jurisprudence from vague mysticism and
in a way revival of John Austin’s 19th century analytical jurisprudence. Kelson wished to create
a pure science of law devoid of all moral and sociological considerations. He rejected Austin’s
definition of law as a command because it introduces subjective considerations whereas he
wanted legal theory to be objective. He defines ‘science’ as a system of knowledge or a ‘totally
of cognitions’ systematically arranged according to logical principles. Keelson’s Grundnorm is
analogous to Austin’s concept of sovereign without which, law cannot be obligatory and
binding. Keslon’s theory being a theory of positive law is based on normative order eliminating
all extralegal and non-legal elements from it. He believed that a theory of law should be
uniform. The theory of Hans Kelson, says Dias, has represented a development in two different
directions; on the one hand, it marks the highest development to date of analytical positivism.
On the other hand, it marks a reaction against the welter of different approaches that
characterized the close of the 19th century and the beginning of the 20th century. For Kelson
and his followers any such legal idealism is unscientific. He claimed that his pure theory was
applicable to all places and at all times. He wanted it to be free from ethics, politics, sociology,
history, etc. though he did not deny the value of these branches of knowledge.
LAWS AS NORMATIVE SCIENCE
Kelson described law as a ‘normative science’ as distinguished from natural sciences which are
based on cause and effect such as law of gravitation. The laws of natural science are capable of
being accurately described, determined and discovered in the form of ‘is’(das seen) which is
an essential characteristics of all natural sciences. But the science of law is knowledge of what
law ought to be (das sollen). It is the ‘ought to’ character which provides normative character
to law. For instance, if ‘A’ commits a theft he ought to be punished. Like Austin, Kelson also
considers sanction as an essential element of law but he prefers to call it ‘norm’. Kelson argues
his science of law as ‘pure’ and time and again, insists that law ‘properly so-called’ must be put
unspotted from elements which merely confuse and contaminate it. It should not be mixed with
politics, ethics, sociology and history. By ‘pure theory of law’, he meant it is concerned solely
with that part of knowledge that deals with law, excluding from such knowledge everything
which does not belong to subject matter of law. He attempts to free the science of law from all
foreign elements. It is called positive law because it is concerned only with actual and not with
ideal law. For Kelson, legal order is the hierarchy of norms having sanction and jurisprudence
is the study of these norms which comprise legal order.

THE GRUNDNORM
The basis of Kelson’s pure theory of law is on pyramid cal structure of hierarchy of norms
which derives its validity from the basic norm i.e. ‘Grundnorm’. Thus it determines the content
and gives validity to other norms derived from it. He was unable to tell as to from where the
Grundnorm or basic norm derives its validity. But when all norms derive their validity from
basic norm its validity cannot be tested. Kelson considers it as a fiction rather than a hypothesis.
According to Kelson it is not necessary that the Grundnorm or the basic norm should be the
same in every legal system. But there will be always a Grundnorm of some kind whether in the
form of a written constitution or the will of a dictator. In England there is no conflict between
the authority of the king in Parliament and of judicial precedent, as the former precedes the
latter. For example, In England, the whole legal system is traceable to the propositions that the
enactments of the crown in Parliament and Judicial precedents ought to be treated as ‘law’ with
immemorial custom as a possible third. Keelson says that system of law cannot be grounded
on two conflicting Grundnorms. The only task of legal theory for Kelson is to clarify the
relation between the fundamental and all lower norms, but he doesn’t go to say whether this
fundamental norm is good or bad. This is the task of political science or ethics or of religion.
Kelson further states that no fundamental norm is recognizable if it does not have a minimum
of effectiveness e.g. which does not command a certain amount of obedience. Producing the
desired result is the necessary condition for the validity of every single norm of the order. His
theory ceases to be pure as it cannot tell as to how this minimum effectiveness is to be measured.
Effectiveness of the Grundnorm depends on the very sociological and political questions, which
he excluded from the purview of his theory of law.

Pyramid of Norms
Kelson considers legal science as a pyramid of norms with Grundnorm at the top. The basic
norm (grundnorm) is independent of any other norm at the top. Norms which are superior to
the subordinate norms control them. He defines ‘Concretization’ as the process through which
one norm derives its power from the norm superior to it, until it reaches the Grundnorm. Thus
the system of norms proceeds from bottom to top and stops when it reaches to the top i.e.
‘Grundnorm’. The Grundnorm is said to be a norm creating organ and the creation of it cannot
be demonstrated scientifically nor is it required to be validated by any other norm. Thus a statute
or law is valid because they receive their legal authority from the legislative body and the
legislative body derives its authority from a norm i.e. the constitution. According to him the
basic norm is the result of social, economic, political and other conditions and it is supposed to
be valid by itself.13There is a difference between propositions of law and propositions of
science. Propositions of science are observed to occur and necessarily do occur as a matter of
cause and effect. Whenever, a new fact which is found not to comply to a scientific law it is so
modified to include it. On the other hand propositions of law deal with what ought to occur e.g.
if ‘A’ commits theft, he ought to be punished.

Bentham:

One of the main rationales for Bentham establishing the positive law theory was that he thought
the system of common law, that was then in use in England in the 17th century, was insufficient
and inconsistent. He classified this common law system as ‘dog law’, referring to the way it
often applied retrospectively and assimilated it to the way in which we treat animals. He
criticized the lack of legal certainty and clarity that the common law system provided. Bentham
proposed a system whereby the limits of power and conduct were specifically outlined, and
were available for all to see and abide by. He often intertwined his own ideas with the ideas of
utilitarianism (i.e. “the greatest good for the greatest number”), which then obviously formed
the basis of the scientific approach to the law. His “science of legislation” approach meant that
the law had a rigid format, was clear in its terms, and achieved a positive result overall for the
subjects of the law, thus satisfying the requirements of the utilitarian aspects of Bentham’s
theory. He also identified that human behavior is often governed by two key factors: the desire
for pleasure, and the avoidance of pain. It was Bentham that proposed a system of codification
of the law, similar to the system of legislation we see in the modern context, where the premise
was that it would create a universal set of laws that was easy to understand, and was able to be
easily communicated to the public, so they knew what they had to do to obey the laws. It also
meant that judges would effectively have their law-making powers reduced or rescinded,
meaning they assumed more of an administrative role in the judiciary. Bentham had a similar
view of the sovereign, believing that the sovereign is a person or group to whom the people of
the society are “in a disposition to pay obedience” to. For Bentham, law had to contain the
following factors:
 • A collection of signs

• Which indicate an intention

• Which are conceived or adopted by a sovereign in a state

• Which describe the desired behavior

• Of the people to whom the intention is directed

• Which should also provide a motive for those subjects to obey?

This heavily itemized list is similar to that of Austin; however Bentham’s theory came first
according to the history books. It shows the much more scientific approach to the law that a
positivist tends to take rather than, say, a natural law theorist. Bentham’s rationale for creating
such a system was that, as mentioned, judges were much more restricted in their law-making
powers. This meant that they were not able to apply any form of morality to their legal
arguments, as they were simply bound to apply the law as it was enacted by the Parliament.
This further supports the fact that those who follow analytical jurisprudence maintain a strict
separation from the law and any social or political factors surrounding it, leaving the debate of
merits and demerits to the legislature.
FEMINIST JURISPRUDENCE
ORIGINS
Feminist jurisprudence emerged about 35 years ago. Its origins can be explained in a
number of ways. One sees it as an off-shoot of critical legal studies. Many feminist
legal theorists subscribed to the early principles of the CLS (Critical legal studies (
CLS )) movement in the 1970s, including the “basic critique of the inherent logic of
the law, the indeterminacy and manipulability of doctrine, the role of law in legitimating
particular social relations, the illegitimate hierarchies created by law and legal
institutions.

But women at CLS conferences were “ghettoised.” In 1983 the CLS conference
devoted a section of the conference to feminism specifically.

A caucus of “Fem-Crits” emerged. Some of the earlier work in feminist jurisprudence

reflects this, Olsen on the family and the market, 4 MacKinnon’s comparison of sexism
to classism and feminism to Marxism, work on the “public” and the “private,” 6 analysis
of the law’s relationship to oppression, in particular to patriarchy.

Feminist jurisprudence is also, necessarily, a development from the women’s

movement more generally. This emerged (more accurately re-emerged) in the late
1960s and early 1970s with the writing of Simone de Beauvoir, Betty Freidan,
Germaine Greer, Kate Millett, Eva Figes and others.
To Ashe the development of feminist jurisprudence, on the heels of feminist sociology,
feminist philosophy and feminist history was a natural “extension of the engagement
of female reflection and speech to one more area of discourse.” There was a large
proliferation in the 1970s and 1980s in women’s studies courses.
The large number of women studying law—a phenomenon of the late 1960s
onwards—also had its impact, as female students began to question a curriculum
which neglected issues of central concern to women: rape, 19 domestic violence, 20
reproduction, 21 unequal pay, 22 sex discrimination, 23 sexual harassment. 24

Most of the leading writers in feminist jurisprudence were studying law at this time or
later. Some who became practicing lawyers undertook litigation on behalf of women
and this litigation nourished both their scholarship and that of others.

It is unimportant when the term “feminist jurisprudence” was first used. Some trace it
to an intervention of Ann Scales at a Harvard conference in 1978.

Her article “Towards a Feminist Jurisprudence” was published in 1981 27: Catharine
MacKinnon’s influential article “Feminism, Marxism, Method and the State: Toward
Feminist Jurisprudence” first appeared in 1983.

Feminist jurisprudence is a house with many rooms: in this it reflects the different
movements in feminist thought. But what unites feminist legal theorists is a belief that
society, and necessarily legal order, is patriarchal.
It seeks to analyse the contribution of law in constructing, maintaining, reinforcing and
perpetuating patriarchy and it looks at ways in which this patriarchy can be undermined
and ultimately eliminated.
Although there is much, and an increasing amount of grand theorising, what Carol
Smart has called “scientific feminism,” 30 there remains a belief in the “desirability of
the concrete.” 31 This is one of the things that clearly demarcates feminist
jurisprudence from mainstream legal theory.

THE INQUIRIES OF FEMINIST JURISPRUDENCE

Clare Dalton has written of feminism that it is a “range of committed inquiry and activity
dedicated first, to describing women’s subordination— exploring its nature and extent;
dedicated second, to asking both how— through what mechanisms, and why—for
what complex and interwoven reasons—women continue to occupy that position; and
dedicated third to change.
To engage in feminist legal thought is to use feminism to concentrate this inquiry and
activity on the legal system. . Like CLS, feminist jurisprudence inquires into the politics
of law, but its particular focus is on the “law’s role in perpetuating patriarchal
hegemony.’’

The inquiry is feminist in that it is grounded in women’s concrete experiences: the

personal is the political. The method of feminism is consciousness-raising, in Catharine
MacKinnon’s words, 35 “the collective critical reconstruction of the meaning of
women’s social experience, as women live through it.” The goal is change, “revision,”
as Adrienne Rich puts it. 36 And she adds, “this is ‘more than a chapter in cultural
history; it is an act of survival

There is a useful list of feminist inquiry into law in an essay by Heather Wishik. She
suggests seven questions that feminist jurisprudence poses:
• What have been and what are now all women’s experiences of the “life
situation” addressed by the doctrine, process or area of law under examination?

• What assumptions, descriptions, assertions and/or definitions of experience—

male, female or ostensibly gender neutral—does the law make in this area?

• What is the area of mismatch, distortion or denial created by the differences

between women’s life experiences and the law’s assumptions or imposed
structures?

• What patriarchal interests are served by the mismatch?

 • What reforms have been proposed in this area of law or women’s life situation?
How will these reform proposals, if adopted, affect women both practically and
ideologically?

• In an ideal world, what would this woman’s life situation look like, and what
relationship, if any, would the law have to this future life situation?

• How do we get there from here?

It is important to realise, as Wishik notes, that “the analytic frames of patriarchal law
are not the spaces within which to create visions of feminist futures.” 38
Postmodernism is also having an impact.
Thus, as Dalton argues, “we cannot only research what happens to women in the world
shaped by law, law language and legal institutions, but challenge even the structure of
legal thought as contingent and in some culturally specific sense ‘male,’ implying the
need for more radical changes than the ameliorative amendations we have offered in
the past.

There are different feminist jurisprudences. In the second extract Cain offers a useful
categorization into four schools of thought:

• liberal
• radical
• cultural and
• postmodern.
An early theme and pursuit for feminist thinkers about law was equality-H.H. Kay
(1985) I Berkeley Women’s Law J I see further A. Scales, Legal Feminism (2006),
Ch.4. Cain takes this theme and shows how the different models perceive and tackle
this problem.

For liberals, equality amounts to equal opportunity

Radical feminists, such as Littleton and MacKinnon, focus on differences between

women and men and support affirmative measures to challenge inequalities.
Cultural feminists also emphasize difference, but view it more positively. They (thinkers
such as Carol Gilligan and Robin West) use the rhetoric of equality to advocate change
that supports the values (caring, relational connectedness) of this difference.
Postmodern feminism41 sees equality as a social construct and, since it is a product
of patriarchy, one in need of feminist reconstruction, but it warns against searching for
a new truth to replace an old one.
It denies that there is a single theory of equality that will benefit all women. Some
feminist critics of postmodernism see it as leading to doing nothing “even faster than
traditional liberalism”. 42
Cain herself wants feminists to turn away from debates about equality. She looks to
legal theories that will support the process of self-definition, and to methods that will
raise consciousness and give voice to the unknown in women’s experiences. 43 A
number of examples of this have now appeared. 44

To Scales, in the first of the extracts, the underlying problem is the objectification of
women, the “tyranny of objectivity’’.
Feminism, she argues, proceeds from the principle that objective reality is a myth, with
patriarchal myths as projections of the male psyche. She is critical of the US Supreme
Court’s equal protection approach to sex discrimination (and would be equally so of
the model adopted in the United Kingdom) because it makes maleness the norm of
what is human, the goal being neutrality.

t is, she argues, necessary to reconstruct the legal system. She points both to the
significance and the dangers of Gilligan’s In a Different Voice. 45 Gilligan, a
developmental psychologist, has argued that women’s moral development reflects a
focus on responsibility and contextuality, whilst men’s relies more heavily on rights and
abstract justice.
An “ethic of justice” is rooted in the value that everyone should be treated the same:
an “ethic of care” rests on the premise of nonviolence, that “no one should be hurt.” 46
Gilligan has been enormously influential, 47 though she has been criticized inter alia
for her essentialism, her categorization of a common female voice, rather than a
plurality of different voices. 48
To Scales the danger of taking Gilligan’s insight is to believe that a care-based and
rights-based view are compatible. She is critical of what she calls “incorporationism.”
This, she says, “represses contradictions”; it “usurps women’s language in order to
further define the world in the male image.”
But inequality is not a legal mistake that can be undone by expressing examples of
irrationality. “The injustice of sexism is not irrationality; it is domination.” 50 Scales
looks to a feminist jurisprudence which will focus on domination, disadvantage and
disempowerment rather than one which examines differences between men and
women.

To Robin West, in the third extract, 51 the failure of modern legal theory lies in its
understanding of what it is to be a human being.

Such theory is male because it assumes that individuals are essentially separate from
one another. She argues, to the contrary, that women are connected to other human
beings, especially through the biologically-based activities of pregnancy, breast-
feeding and heterosexual intercourse.
West argues for a feminist jurisprudence that reconstructs legal concepts to take
account of the realities of women’s experiences. Not only is the “separation thesis” an
obstacle to the development of feminist legal theory, but it constitutes a barrier to the
demolition of patriarchy. West’s “connectedness” thesis is essentialist 52 : other
feminists 53 working within jurisprudence have criticised her reliance on a concept of
“woman” that it is, they claim, based on the experiences of white women.

NOTES FROM SLIDES

Legal feminism seeks to ‘explore and to expose the gendered nature of legal thought
and how the law constructs gender’

Legal feminism sees gender as being socially constructed and law plays a major role
in the construction.
The driving force at the initial stages aimed at achieving formal equality between men
and women. This is still important but legal feminism now ‘seeks to question the
underlying structure of the law in order to ‘explore and expose the gendered nature of
legal thought and how law constructs gender’.
The emphasis is on the disadvantaged position of women due to unequal gender
construction. And that the law plays a role in that construction

Legal feminists seems to have realised formal equality and have turned their attention
to ‘women’s empowerment’. Empowerment is by creating awareness of women’s
rights particularly for the developing countries to ensure full realisation of their rights.
By the theoretical level, empowerment means ‘interpreting and understanding what it
is to be a woman in the society and the forces which constrain and create this being’
(pg 181).

In the pursuit of women’s empowerment several models for interpretation have

emerged to create insight into women’s empowerment. The models include:

1. Comparative model: it makes comparison between men and women in terms of

differences and similarities and how these have been used to create roles for women
that put them at a disadvantage.
Flowing from this has emerged the ‘sameness’ ideology to argue for equality for
women. A disadvantage though has been that the model suffers where there is not
comparator.
Ratner postulates the emphasis should be that the differences remain but the
differences should not be employed as tools to devalue women.

2. Domination Model: this model is used to explain the disadvantage of women as

having been caused by male domination through the patriarchal system which has
influenced legal structures that exist in the societies.
This manifests in male power which sometimes leads to rape, assault, mutilation,
prostitution etc. For example a crime of rape is not just a crime, the victim suffers it
because she is a woman.

3. Cultural Representation of Women: This explores ways in which reality is

framed through the language of legislation and law reporting and how it creates certain
identity for women.

i. Black Feminism: This has reviewed these models further to criticize how white
feminists generalize the discourse on women. But the black feminism has brought a
perspective for the need to have different discourse on the differences between the
different groups of women.

ii. Third World Feminists: This also points out the different situation of the third
world woman.

The cultural representation has led to a discourse on how a female identity is

expressed in legal, cultural and political discourse.

Aside equality and empowerment there is the reforming role of legal feminism: it aims
at legal reform and also resists those who are considered to be detrimental to women’s
empowerment.
From the above it is clear that legal feminism cuts across ‘varieties of law including
the use of construction of legal language, the appointment of judges and the
functioning of the legal machinery
The historical and sociological analysis of structure and effect of legal institution and
the policies which inform the law. Empirical work has been carried out on women as
victims, as perpetrators of crime, as prisoners and as lawyers etc.’ (pgs 185-186)

CRITICISM

The main problem is the lack of uniformity in theoretical approach to legal feminism.
Another problem is whether or not it gives rise to feminist jurisprudence.
In spite of this, it is possible to categorizes legal feminism into four; as Liberal
Feminism, Radical Feminism, Cultural Feminism and Marxist/Socialist Feminism

History
The essay discusses the field of Feminist Legal History, shedding light on the ways
in which women have engaged with the legal system in the United States over the past
two centuries. It emphasizes the role of feminist theory in reshaping the legal
landscape to acknowledge gendered realities and highlights the concept of
"engendering legal history." This approach seeks to integrate women's stories and
contributions into the dominant legal narrative, challenging assumptions about the past
and rewriting traditional historical accounts.
One of the primary objectives of this research is to recover the often overlooked stories
of women and their significant contributions to legal history. By doing so, it aims to fill
gaps in our understanding of the legal landscape and offers alternative interpretations
of historical legal discourse. The research reveals that American history is more
complex than previously assumed, leading to a reevaluation of generalizations and a
critical examination of the social construction of gender.

Furthermore, this collection of essays demonstrates that incremental progress did not
prevail in the law, and historical accounts of women's legal rights are often one-
dimensional. It divides this history into waves, with the first wave spanning from the
demand for suffrage in the mid-19th century to the adoption of the Nineteenth
Amendment in 1920, granting women the right to vote. However, it criticizes the
tendency of official histories to focus primarily on white, middle-class women with
professional ambitions, overlooking the impact of race and class on gender inequities
and alliances among women.
The essay delves into the legal concept of coverture, which legally subordinated
married women to their husbands, stripping them of rights to property, wages, child
custody, and suffrage. It highlights how women found ways to exercise social and legal
power in colonial America, even within the constraints of coverture. The Seneca Falls
Convention in 1848, led by Elizabeth Cady Stanton and her Declaration of Sentiments,
marks the beginning of the movement for women's political and social rights, including
the right to vote.
The struggle for suffrage continued through the 19th and early 20th centuries, with
setbacks and challenges from both conservative and progressive forces. It mentions
the rejection of women's suffrage claims by the Supreme Court and the eventual
success of the suffrage movement with the passage of the Nineteenth Amendment.

The essay also addresses issues related to female labor reform, the Equal Rights
Amendment, debates over women's rights and social conservatism, and legal battles
over reproductive rights. It notes that gender-based restrictions persisted in various
forms, leading to ongoing legal battles for equality.
The second part of the essay explores how feminists worked to transform existing legal
norms and the law itself. It discusses the use of legal strategies by women, including
Elizabeth Cady Stanton's pioneering work on legal class theory. It also explores the
role of women lawyers and legal activists in advocating for social change and
expanding the scope of legal advocacy beyond economic concerns.

In summary, the essay provides a comprehensive overview of the history of women's

engagement with the law in the United States, from challenges to coverture to the fight
for suffrage and beyond. It underscores the complexities of gender, race, and class in
shaping legal history and highlights the transformative power of feminist legal theory
and activism in reshaping the legal landscape.

#Metoo Feminism
The #MeToo movement is a significant feminist collective action that draws attention
to the prevalence of sexual abuse and harassment in society and seeks substantial
structural change. Its strength is rooted in collective solidarity, where individuals
sharing their experiences gain credibility and power through mutual support. #MeToo
is inherently feminist because it challenges deeply ingrained gender-based norms,
cultures, and systems.
Nonetheless, #MeToo faces challenges, notably the danger of individualization, where
the focus narrows down to specific incidents and individual wrongdoers, potentially
sidelining the broader need for systemic change. Critics often depict complainants as
overly sensitive or prioritize due process for accused individuals, both of which could
dilute the collective impact of #MeToo.

Furthermore, collective counternarratives emerge to resist changes in cultural norms,

structures, and systems that perpetuate harassment and gender inequality. Some
argue that challenging these norms is excessive or threatens established cultural
values. Others suggest that extreme harassment in male-dominated workplaces is
less problematic, reinforcing subordinating cultures.
To maintain its feminist force, #MeToo must confront these challenges. It should
emphasize the necessity of systemic change, expand opportunities for class actions,
fight against mandatory arbitration, and directly address problematic organizational
cultures. Additionally, #MeToo needs to resist the tendency to individualize incidents
and effectively respond to collective counternarratives that seek to protect existing
norms and structures. Only by doing so can #MeToo achieve a lasting impact as a
feminist movement.

Kimberlé Crenshaw's paper, titled "Demarginalizing the Intersection of Race and

Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory,
and Antiracist Politics," is a seminal work that delves into the concept of
intersectionality and its significance in understanding the experiences of Black women
in the context of discrimination.

The central theme of the paper revolves around the idea that conventional approaches
to antidiscrimination laws and mainstream feminist theories often fall short in capturing
the complex and multifaceted discrimination faced by Black women. Crenshaw argues
that when addressing issues of discrimination, it is essential to recognize that
individuals may simultaneously encounter various forms of oppression, such as racism
and sexism, and that these forms of oppression can intersect and compound each
other, creating unique challenges that are not adequately addressed by traditional
legal and feminist frameworks.
Crenshaw highlights that mainstream feminism, particularly in the late 20th century,
primarily focused on issues that were relevant to white women. This led to the
marginalization of Black women's experiences, as their unique struggles at the
intersection of race and gender were often ignored or overshadowed. In this context,
the paper calls for a more inclusive and intersectional approach to feminist theory that
takes into account the experiences of all women, regardless of their racial or ethnic
backgrounds.
Similarly, the paper critiques antidiscrimination laws, pointing out that these legal
frameworks are often developed with a singular focus on addressing either racial or
gender-based discrimination. This narrow approach fails to acknowledge and address
the complex ways in which these forms of discrimination intersect and interact.
Consequently, Black women may find themselves without adequate legal protection
or remedies when their experiences of discrimination do not neatly fit into one category
or the other.
Crenshaw's paper argues for a fundamental shift in legal and feminist thinking,
advocating for the recognition of intersectionality as a critical concept. By
understanding that individuals can face discrimination at the intersection of multiple
identities, such as race and gender, the paper contends that society, policymakers,
and activists can better address the unique challenges and vulnerabilities experienced
by Black women and other marginalized groups.
In essence, Kimberlé Crenshaw's paper serves as a foundational piece of scholarship
that highlights the importance of acknowledging and addressing intersectionality in
both legal and feminist contexts. It underscores the need for a more comprehensive
and inclusive approach to combating discrimination, ensuring that the experiences of
Black women and other marginalized individuals are fully recognized and addressed
in the pursuit of social justice and equality.

The evolution of feminist legal theory has traversed a remarkable journey spanning
over a century, with its roots deeply embedded in the comprehensive philosophy of
the nineteenth-century women's rights movement, famously ignited at the Seneca
Falls Convention in 1848. This evolutionary narrative encompasses several critical and
interconnected points:

Beginning with the Foundations of Feminist Legal Theory, the Seneca Falls
Convention in 1848 served as the epicentre of the burgeoning women's rights
movement. Here, the Declaration of Sentiments was drafted, which presented a
comprehensive agenda for women's rights, demanding voting rights and reforms
across various aspects of women's lives, including family, property, and employment
laws.

At the heart of this movement stood Elizabeth Cady Stanton, an intellectual

powerhouse who played a monumental role in constructing the legal framework for
women's equality. Stanton's legal analysis was informed by the ideas of early feminist
thinkers such as Margaret Fuller, Sarah Grimké, and Mary Wollstonecraft. Her
advocacy centered on the concept of gender as a unified class, a unifying idea that
heightened awareness of gender-based oppression and encouraged unity among
women from diverse backgrounds.

Early feminist legal thought was marked by a rich tapestry of ideas, encompassing the
notions of women's "sameness" and "difference," the role of institutions in perpetuating
gender inequality, and the interconnectedness of private and public spheres.
Throughout these periods, two imperatives persisted: the need to pose "the woman
question" and the recognition of law as both a perpetrator of women's inequality and
a potent tool for change.

However, the feminist movement was not without its challenges, particularly in dealing
with issues of intersectionality. Early feminism faced rifts related to race, as divisions
emerged between suffragists and Black reformers. Despite a common goal, tensions
arose, resulting in the predominance of the suffrage issue while other aspects of the
feminist agenda took a backseat.
The early twentieth century ushered in a new wave of feminism - Progressive
Feminism. This era expanded the feminist agenda to encompass women's economic
independence and sex rights, notably the birth control movement. Leaders like Alice
Paul and her National Woman's Party used militant tactics to garner public and political
support for a federal constitutional amendment.

As the years progressed, the movement's focus gradually narrowed towards Formal
Legal Equality Feminism, emphasizing the challenge of gender stereotypes and
advocating for equal treatment under the law. Figures like Justice Ruth Bader
Ginsburg played pivotal roles in this era, pushing for legal change.

Today, Intersectional Feminism is at the forefront of feminist legal theory. Modern

feminism recognizes the need to address not only gender but also other factors such
as race and class in the pursuit of gender justice. This perspective acknowledges that
gender inequality cannot be isolated from other forms of discrimination and that a
holistic approach is essential.
In summary, the evolution of feminist legal theory from its inception at Seneca Falls to
the present day underscores the enduring commitment to gender equality. Over the
years, the focus and strategies may have shifted, but the core values of equality,
justice, and inclusivity have remained constant, guiding the movement towards a more
comprehensive and integrated understanding of women's rights.

Critical Race Theory of Jurisprudence

The Critical Race Theory (CRT) of jurisprudence is a legal framework that examines
the intersection of race, power, and the law. It originated in the United States in the
1970s and 1980s as a response to the limitations of traditional legal theories in
addressing racial inequality.

Key Principles of Critical Race Theory

Intersectionality: CRT recognizes that race intersects with other social identities, such
as gender, class, and sexuality, to shape individuals' experiences of oppression and
privilege. It emphasizes the need to consider these intersecting identities when
analyzing legal issues.

Racism as Structural: CRT views racism as a systemic and institutionalized problem

rather than an individual bias. It highlights how laws, policies, and practices can
perpetuate racial inequality and maintain existing power structures.

Counter-Storytelling: CRT encourages the use of counter-narratives and personal

experiences to challenge dominant legal narratives. It aims to amplify the voices and
experiences of marginalized communities that have been historically silenced or
ignored.

Social Justice: CRT seeks to address racial injustice and promote social change. It
advocates for the recognition of systemic racism and the implementation of policies
that promote equality and equity.

Critiques of Critical Race Theory

Lack of Objectivity: Critics argue that CRT is subjective and lacks objectivity in its
analysis of legal issues. They contend that it prioritizes personal experiences and
narratives over legal principles and precedent.

Overemphasis on Race: Some critics argue that CRT places excessive emphasis on
race, neglecting other important factors such as class, gender, and religion. They
argue that this narrow focus may limit the understanding of complex social issues.
Political Agenda: Critics claim that CRT is driven by a political agenda and seeks to
advance specific policy goals rather than providing a neutral analysis of the law. They
argue that this undermines the credibility and legitimacy of the theory.
Limited Practical Solutions: Some critics argue that CRT does not offer practical
solutions to address racial inequality. They contend that it focuses more on critiquing
existing systems rather than proposing concrete reforms.

Conclusion

The Critical Race Theory of jurisprudence provides a valuable framework for

understanding how race intersects with the law and perpetuates racial inequality.
While it has faced criticism for its subjectivity and narrow focus, CRT has contributed
to important discussions on race, power, and social justice within the legal field. It
continues to shape legal scholarship and advocacy efforts aimed at addressing
systemic racism.

Adrien Katherine Wing is a legal scholar who has made significant contributions to
the field of critical race feminism. Her work, along with other scholars in the field, has
helped shape and define the concept. Critical race feminism, as explained by Adrien
Katherine Wing and others, can be summarized as follows:

Intersectionality: Critical race feminism recognizes that individuals possess multiple

social identities, including race, gender, class, sexuality, and more. It emphasizes the
intersectionality of these identities, acknowledging that people's experiences of
discrimination and privilege are shaped by the interplay of these factors. This approach
challenges simplistic and one-dimensional analyses of oppression and privilege.
Centering Marginalized Voices: A key aspect of critical race feminism is the focus on
centering the voices and experiences of marginalized individuals, particularly women
of color. This means giving prominence to the narratives and perspectives of those
who have historically been marginalized or excluded from mainstream feminist and
anti-racist discourses.

Challenging Dominant Narratives: Critical race feminism critiques and challenges

dominant narratives and ideologies that perpetuate stereotypes, biases, and systemic
inequalities related to race and gender. It scrutinizes traditional legal, social, and
political systems, highlighting how they may reinforce or challenge intersecting forms
of oppression.
Structural Change and Activism: Critical race feminism is not solely an academic
framework; it is also a call to action. It emphasizes the importance of addressing social
injustices and advocating for change. This activism may take the form of legal
advocacy, policy reform, grassroots organizing, and social justice movements.
Legal Analysis: In the context of legal scholarship, critical race feminism provides a
lens through which to analyze and critique laws, regulations, court decisions, and legal
institutions. It highlights the ways in which legal systems may perpetuate or challenge
systemic racism and sexism, advocating for reforms that promote justice and equality.

Solidarity and Allyship: Critical race feminism recognizes the significance of solidarity
and allyship among diverse groups of individuals committed to combating racism,
sexism, and other forms of discrimination. It encourages collaboration and coalition-
building to advance social justice goals.
Global Perspective: Adrien Katherine Wing's work has also addressed international
and global issues. Critical race feminism can extend beyond national boundaries,
examining issues of global significance, including international human rights, global
social justice, and the experiences of women of color in a global context.

In summary, Adrien Katherine Wing and critical race feminists emphasize the
importance of recognizing and addressing the intersectionality of race and gender,
empowering marginalized voices, challenging dominant narratives and structures, and
advocating for social justice and equity. This framework provides a comprehensive
and holistic approach to understanding and addressing the complex issues related to
race, gender, and inequality.

"Feminist Approaches to International Law," authored by Hilary Charlesworth,

Christine Chinkin, and Shelley Wright and published in The American Journal of
International Law in 1991, explores feminist perspectives on international law. The
article is a seminal work that examines the intersection of feminism and international
law, shedding light on the ways in which feminist theory can challenge and transform
the field of international law.

The authors begin by highlighting the historical absence of gender considerations in

international legal discourse. They argue that international law has traditionally been
shaped by a male-dominated perspective, often overlooking the experiences and
rights of women. The article contends that international law has reinforced traditional
gender roles and hierarchies, resulting in the subordination of women's rights and
interests on the global stage.
The central theme of the article revolves around the feminist critique of international
law. The authors argue that feminist perspectives offer valuable insights into the
limitations and biases inherent in the existing international legal framework. They
emphasize the need to deconstruct traditional legal concepts and norms to uncover
the hidden gender biases within them.

The article also discusses the significance of incorporating gender into international
legal analysis. It highlights how feminist approaches to international law seek to
challenge and expand the traditional boundaries of the field. Feminist scholars and
activists have called for the recognition of women's rights as human rights and have
worked to address issues such as violence against women, discrimination, and sexual
exploitation on the international stage.

Moreover, the article explores the ways in which feminist scholarship and advocacy
have influenced international legal developments. It acknowledges the role of feminist
activists in advocating for the inclusion of gender-related provisions in international
treaties and conventions. The authors also discuss the impact of feminist critiques on
the jurisprudence of international tribunals and the decisions of international
organizations.

In conclusion, "Feminist Approaches to International Law" provides a comprehensive

overview of the feminist perspective on international law. It underscores the
importance of gender considerations in reshaping international legal norms and
advancing women's rights globally. The article serves as a foundational text in the field
of feminist international law, challenging the traditional assumptions and biases within
the discipline and advocating for a more inclusive and equitable global legal
framework.