K.U – LL.

M 1st Year 1st Sem

PAPER – I

LEGAL THEORY AND JURISPRUDENCE – I

Prepared by Advocate J Vijay Krishna

B.Com (Vocational), M.B.A, P.G.D.C.A, LL.B (Honours), (LL.M (I.P.R))

Email: Lawyer.jvk@gmail.com

Ph: +91 7670870089

Self-study notes prepared from various publicly available sources, to be used for
academic purposes only and not for commercial use.

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Contents
PAPER – I - LEGAL THEORY AND JURISPRUDENCE – I ........................................................ 3
Unit-I: ................................................................................................................................................. 4
Q. Meaning, nature and definition of jurisprudence ................................................................. 4
Q. Relationship of Jurisprudence with other Social Sciences ................................................... 9
Q. Schools of jurisprudence - Introduction .............................................................................. 10
Q. Analytical School.................................................................................................................... 12
Q. Historical School .................................................................................................................... 15
Q. Philosophical School .............................................................................................................. 16
Q. Sociological Schools of jurisprudence .................................................................................. 16
Q. Realist School ......................................................................................................................... 17
Unit-II: ............................................................................................................................................. 18
Q. Kelsen’s Pure Theory of law ................................................................................................. 18
Q. Hart’s Concept of law ............................................................................................................ 20
Q. Analytical and Normative Jurisprudence ............................................................................ 23
Q. Legal Realism and Economic Theory of Law ...................................................................... 32
Q. American and Scandinavian Realism – Critical Legal Studies Movement. ..................... 43
Unit-III:............................................................................................................................................ 48
Q. Meaning and Definition of Law ............................................................................................ 48
Q. The Nature and functions of Law ......................................................................................... 50
Q. The Classification of Law ...................................................................................................... 51
Q. History of Natural Law – Greek Origins – Medieval Period – Period of Renaissance.... 56
Q. Transcendental idealism ........................................................................................................ 66
Q. Natural Law and Social Contract Theories ......................................................................... 67
Unit-IV: ............................................................................................................................................ 70
Q. Sources of Law-Legal and Historical sources...................................................................... 70
Q. Custom as Source of Law- Definition of custom- General and Local Custom and
Prescriptions ................................................................................................................................ 73
Q. Precedent as Source of Law-Definition of Precedent, Kinds of Precedent ....................... 76
Q. Doctrine of Stare Decisions- Original and Declaratory Precedent- Authoritative and
Persuasive Precedents ................................................................................................................. 80
Q. Legislation as Source of Law- Definition of Legislation - Classification of Legislation –
Supreme and Subordinate Legislation – Direct and Indirect Legislation. ............................ 83

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PAPER – I - LEGAL THEORY AND JURISPRUDENCE – I
Unit-I:
Meaning, nature and definition of jurisprudence - General and particular
jurisprudence - Schools of jurisprudence- Analytical, Historical, Philosophical
and Sociological Schools of jurisprudence.
Unit-II:
Theories of Law - Kelsen’s Pure Theory of law – Hart’s Concept of law – Modern
Trends in analytical and Normative Jurisprudence – Economic Theory of Law –
Views of Karl Marx - American and Scandinavian Realism – Critical Legal
Studies Movement.
Unit-III:
Meaning and Definition of Law - The Nature and functions of Law - The Purpose
of Law- The Classification of Law- History of Natural Law – Greek Origins –
Medieval Period – Period of Renaissance – Transcendental idealism – Natural
Law and Social Contract Theories.
Unit-IV:
Sources of Law-Legal and Historical sources- Custom as Source of Law-
Definition of custom- General and Local Custom and Prescriptions - Precedent
as Source of Law-Definition of Precedent, Kinds of Precedent- Doctrine of Stare
Decisions- Original and Declaratory Precedent- Authoritative and Persuasive
Precedents- Legislation as Source of Law- Definition of Legislation -
Classification of Legislation – Supreme and Subordinate Legislation – Direct and
Indirect Legislation.

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Unit-I:
Meaning, nature and definition of jurisprudence - General and particular
jurisprudence - Schools of jurisprudence- Analytical, Historical, Philosophical
and Sociological Schools of jurisprudence.

Q. Meaning, nature and definition of jurisprudence

The term jurisprudence has been derived from the Latin word ‘juris prudentia’
which means ‘skill or knowledge of law’.
In the early decades of the 19th century with the theories propounded by Bentham
and Austin, the term ‘jurisprudence’ acquired a definite meaning. Bentham is
known as Father of Jurisprudence was the first one to analyze what is law. He
divided his study into two parts:
• Examination of Law ‘as it is’ i.e. Expositorial Approach– Command of
Sovereign.
• Examination of Law ‘as it ought to be’ i.e. Censorial Approach–
Morality of Law.
The term Jurisprudence has at different times been used in different senses;
sometimes as synonyms of law; sometimes as a philosophy of law; and
sometimes as the science of law. Presently, Jurisprudence is aptly termed as the
“Legal Theory”.
Jurisprudence denotes a logical and analytical study of the law. The term
Jurisprudence originated from the Latin word “Juris” and “prudentia”, which
can be divided into two sections, and that is the jurisprudence that originated from
the word “jus”, meaning “law”, and the word “prudential”, meaning
“prudence”, forethought, or discretion.
Jurisprudence can also be referred to as a legal philosophy. Jurisprudence offers
us an outline and a much deeper understanding of the law and the role the law
plays in society. It deals with legal logic, bodies of law and legal frameworks.
Importance of Jurisprudence:-
1. Fundamental significance is of utmost importance under the field of the
study of jurisprudence. Jurisprudence consists primarily of analysis and the
process for building and clarifying the fundamental principles of law.
Jurisprudence is not about making the new rules; rather, it focuses on
current rules in the structure and jurisprudence, and its ideas will help

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 lawyers develop a different, much better procedure and rules while
practicing.
2. Jurisprudence can support students too. In students life it has its own
scholastic value. Jurisprudence not only focuses on primary laws but also
addresses the social impact of those laws. Jurisprudence incorporates both
theoretical and logical study of legal principles.
3. Jurisprudence frequently reflects on the law and its importance for society.
There is discussion of justice and the articulation of law. It deals with the
fundamental principles of the in the eye of law. It helps a person understand
the thoughts of law and its divisions.
4. Jurisprudence is the grammar of law, too. It helps a person understand the
language and the legal grammar. Compared with ordinary language, legal
language and grammar are somewhat different, so Jurisprudence teaches a
lawyer’s mind so that he can use proper legal terminology and phrases.
5. Jurisprudence provides interpretation rules and, as a result, helps judges
and lawyers understand the importance of laws passed by lawmakers.
6. Jurisprudence and its relationship with other social sciences provide
students with a broad spectrum of understanding how law can be related
and linked to other disciplines.
7. Jurisprudence teaches people that the answer to a legal problem is not
hidden in the past or awaiting in the future, rather than hidden around them
in the fundamentals of legal studies in the answer to a legal issue.
8. Jurisprudence also discusses political and legal rights, and how the system
can strive to balance them.
Nature of Jurisprudence
Jurisprudence analyses conceptions of law. It also seeks to figure out what the
basic concepts of law are. It not only analyses the already defined laws but also
analyses and sets the foundation for new rules. It is the product of Jurists ‘and
Philosophers’ thought. They have the right to view, analyze and comment about
the legal system. As such, it can be viewed as an analytical exercise that does not
have immediate practical application. It sets the tone for legislative change.
Jurisprudence binds laws to other fields, such as psychology, politics, economics
etc. The scale constantly shifts. It is not derived from any legislative act or
state assembly. Lord Tennyson calls it, Lawless subject of law. Various

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concepts like Origin of law, need of the law, the utility of the law are studied by
various Jurists. This study of concepts of law is called Jurisprudence.
Jurisprudence offers answers to multidimensional legal questions. It helps in
overall growth of society. It enhances the capacity of the lawyer to justify rational
reasoning. It blesses or hastens a lawyer’s skill with a sense of philosophy, ethics
and morality which helps them move forward in their discipline. There are also
occasions when there are loopholes in the rules; Judges choose the path of
Jurisprudence at those periods. Jurisprudence is the theoretical foundation of
the law, and without it; it is not possible to enforce the law in effect.

Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias
7. Hughes
ANCIENT DEFINITIONS
Ulpian termed jurisprudence as Observation of things or divine & the knowledge
of the just and unjust.
Austin’s definition was vague and inadequate. Thus, jurisprudence at that time
was mixed up with theology.
Bentham, who was the Father of Jurisprudence, divided his study into two parts:-
• Expository Jurisprudence means the Law is to be followed “as it is”. It
means that the Law is the command of the sovereign. The state is the
sovereign, so what the state says is the Law and thus all of it is to be
followed in that exact sense.
• Censorial Jurisprudence means the law is to be followed “as it is ought to
be”. It bends towards the theory of Morality of Law stating that Morality
of Law is to be followed and not the law in its exact literal sense.

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Austin- Definition
He said that “Science of Jurisprudence is concerned with Positive Laws that is
laws strictly so called. It has nothing to do with the goodness or badness of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are common
to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it. Basically, in essence they are same but in scope they are different.

Salmond’s Criticism of Austin

He said that for a concept to fall within the category of ‘General Jurisprudence’,
it should be common in various systems of law. This is not always true as there
could be concepts that fall in neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular and not the science itself

Holland’s Definition-
Jurisprudence means the formal science of positive laws. It is an analytical
science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the general
rule of external human action enforced by a sovereign political authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition.
Formal here means that we study only the form and not the essence. We study
only the external features and do not go into the intricacies of the subject.
According to him, how positive law is applied and how it is particular is not the
concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’ is that it describes only the
form or the external sight of the subject and not its internal contents. According
to Holland, Jurisprudence is not concerned with the actual material contents of
law but only with its fundamental conceptions. Therefore, Jurisprudence is a
Formal Science.
4. This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form,

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conditions, social life, human relations that have grown up in the society and to
which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it is a systematized and
properly coordinate knowledge of the subject of intellectual enquiry. The term
positive law confines the enquiry to these social relations which are regulated by
the rules imposed by the States and enforced by the Courts of law. Therefore, it
is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes,
methods and ideas on the basis of the legal system as distinct from material
science which deals only with the concrete details of law.
7. This definition has been criticized on the ground that this definition is
concerned only with the form and not the intricacies.
Salmond- Definition
He said that Jurisprudence is Science of Law. By law he meant law of the land or
civil law. He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the
doctrines.
‘Specific’ is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an actual
legal system existing at any time, past or the present.
2. Historical , It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as
it ought to be. It deals with the ‘ideal’ of the legal system and the purpose for
which it exists.
Criticism of Salmond-
Critics says that it is not an accurate definition. Salmond only gave the structure
and failed to provide any clarity of thought.
Keeton- Definition
He considered Jurisprudence as the study and systematic arrangement of the
general principles of law. According to him, Jurisprudence deals with the
distinction between Public and Private Laws and considers the contents of
principle departments of law.

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Roscoe Pound- Definition
He described Jurisprudence as the science of law using the term ‘law’ in juridical
sense as denoting the body of principles recognized or enforced by public and
regular tribunals in the Administration of Justice.
Dias and Hughes- Definition
They believed Jurisprudence as any thought or writing about law rather than a
technical exposition of a branch of law itself. Conclusion- Thus, we can safely
say that Jurisprudence is the study of fundamental legal principles.

Q. Relationship of Jurisprudence with other Social Sciences

1. Sociology and Jurisprudence-
There is a branch called as Sociological Jurisprudence. This branch is based on
social theories. It is essentially concerned with the influence of law on the society
at large particularly when we talk about social welfare. The approach from
sociological perspective towards law is different from a lawyer’s perspective. The
study of sociology has helped Jurisprudence in its approach. Behind all legal
aspects, there is always something social. However, Sociology of Law is different
from Sociological Jurisprudence.
2. Jurisprudence and Psychology-
No human science can be described properly without a thorough knowledge of
Human Mind. Hence, Psychology has a close connection with Jurisprudence.
Relationship of Psychology and Law is established in the branch of
Criminological Jurisprudence. Both psychology and jurisprudence are interested
in solving questions such as motive behind a crime, criminal personality, reasons
for crime etc.
3. Jurisprudence and Ethics-
Ethics has been defined as the science of Human Conduct. It strives for ideal
Human Behavior. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code - This could be found in relation to Natural Law.
b. Positive Moral Code- This could be found in relation to Law as the Command
of the Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.

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d. Jurisprudence is related with Positive Morality in so far as law is the
instrument to assert positive ethics.
e. Jurisprudence believes that Legislations must be based on ethical
principles. It is not to be divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of
human value.
g. A Jurist should be adept in this science because unless he studies ethics, he
won’t be able to criticize the law.
h. However, Austin disagreed with this relationship.
4. Jurisprudence and Economics-
Economics studies man’s efforts in satisfying his wants and producing and
distributing wealth. Both Jurisprudence and Economics are sciences and both aim
to regulate lives of the people. Both of them try to develop the society and
improve life of an individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History-
History studies past events. Development of Law for administration of justice
becomes sound if we know the history and background of legislations and the
way law has evolved. The branch is known as Historical Jurisprudence.
6. Jurisprudence and Politics-
In a politically organized society, there are regulations and laws which lay down
authoritatively what a man may and may not do. Thus, there is a deep connected
between politics and Jurisprudence.

Q. Schools of jurisprudence - Introduction

On the basis of the definitions of law as provided by jurists and legal philosopher
over time, one can understand that there cannot be a universally accepted
definition of law as different schools of law are characteristically different in their
approach.
For example, the positive school does not consider moral values as part of the
law, while the natural law school considers law and morality as inseparable.
Schools of Jurisprudence - Overview
• Philosophical school or Natural law school

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• Analytical School
• Historical School
• Sociological School of jurisprudence
• Realist School
There are basically five schools of jurisprudence. We will discuss these schools
along with their leading jurists.

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Q. Analytical School
The Analytical School is positive in its approach to the legal problems in society.
This school takes for granted the developed legal system and proceeds logically
to analyze its basic concepts and classify them so as to bring out their relations to
one another. The jurists of this school consider that the most important aspect of
law is its relation to the State. Law is treated as a command or imperative
emanating from the State. For this reason this school is also known as the
Imperative School.
Contributions of the Analytical School
The important contributions made by this school are as follows:-
1. All positive law is deduced from a determinable law-giver i.e. a sovereign.
2. This school has kept positive law and ideal law strictly distinct. Therefore, it
has analysed the concept of civil law and established its relationship with other
forms of law.
3. It has laid down the essential elements that make the whole fabric of law like
State sovereignty and the administration of justice.

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4. It also takes into account the legal sources from which the law proceeds. The
most important legal sources are legislation, judicial precedents and customary
laws.
Analytical School is also known as the Imperative School because law is treated
as command or imperative emanating from the State. All positive law is deduced
from the Sovereign.
Jurists of the Analytical School:
1) Bentham (1748-1832)
Jeremy Bentham heralded a new era in the history of legal thought in England.
He is considered to be the founder of positivism in the modern sense of the term.
Bentham’s concept of law is an imperative one which means that law is an
assembling of signs, declarations of volition conceived or adopted by the
sovereign in a State. Bentham’s legal philosophy is called “Individualism”
Function of law is to emancipate the individual from the bondage and restraint
upon his freedom.
Bentham’s utilitarianism: He supported the economic principle of “Laissez-faire”
which meant minimum interference of the State in the economic activities of
individuals. According to his Utilitarian theory, the proper end of every law is the
promotion of the “greatest happiness of the greatest number” He discussed this
principle of utility in “Introduction to the Principles of Morals and Legislation”
Bentham summed up his philosophy in the following words: Nature has placed
man under the empire of pleasure and pain. We owe to them all our ideas; we
refer to them all our judgments, and all the determinations of our life. According
to him, the purpose of law is to bring pleasure and avoid pain. Pleasure and pain
are the ultimate standards on which a law should be judged.
2) Austin (1790-1859)
John Austin is the founder of the Analytical School. He is considered to be the
“father of English Jurisprudence” He was born in 1790 and till 1812 he served as
an army officer. After his graduation he joined the newly founded Benthamite
University College as Professor of Law.
Austin’s conception of law: Austin’s theory of Law has the following important
characteristics.
a) That law is a command of a sovereign authority;
b) That Sovereign is the only source of Law;
c) That Law being a command there are sanctions for its enforcements
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 According to Austin “Law” is only an aggregate of individual laws. They are
either directives or those imposed by general opinion. A directive is issued in the
form of commands. A command may be a particular command or general
command. Austin distinguished between “laws properly so called” and “laws
improperly so called”. The key to “laws properly so called” lies in obligation.
Laws properly so called are subdivided into divided law into two parts
1) Laws set by God for men, and
2) Human laws, i.e. laws made by men for men.
Laws set by men to men are “positive laws” Positive laws are the subject matter
of Jurisprudence.
a) Positive laws: These are the laws set by political superiors as such, or by men
not acting as political superiors but acting in pursuance of legal rights conferred
by political superiors. Only these laws are the proper subject-matter of
jurisprudence. According to Austin, the study and analysis of positive law alone
is the subject matter of jurisprudence, and the chief characteristics of positive law
are command, duty and sanction.
3) HLA Hart:
As per Hart’s account, Analytical Jurisprudence searches for some kind of clarity
about the idea of law and other basic legal ideas as they occur in our ordinary
experience. In short, HLA Hart at best can be described both a positivist and
naturalist and by correlating law and morality he conceived what Austin and
Kelsen failed to conceive in legal theory.
4) Hans Kelsen (1881-1973):
Kelsen proposes to expel all non-legal, historical, sociological, metaphysical
notions from science of law in order to make it truly formal. The Basic Norm:
Nature and Origin: In Kelsen’s Pure Theory of Law the basic norm or Grundnorm
supplies the legal order with a hierarchy of norms which derive the validity from
the basic norm itself. The Grundnorm the basic norm, determine the content and
gives validity to other norms derived from it. Basic norm or the grundnorm is a
concept created by Hans Kelsen used this word to denote the basic norm, order
or rule that forms an underlying basis for a legal system. For Austin, law is a
command backed by a sanction. However, Kelsen disagreed in two respects.
Firstly he rejected the idea of command, because it introduces a psychological
element into a theory of law, which should, in his view, be ‘pure’. Secondly to
Austin the sanction was something outside a law imparting validity to it. To
Kelsen, the operation of the sanction itself depends on the operation of other rules

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of law. In this way, the contrast between law and sanction in the Austinian sense
disappears.
Q. Historical School
The Historical School arose more or less contemporarily with Analytical
Positivism at the beginning of the 19th century. The Historical approach to law
arose as a reaction against natural law theories. The Historical School
concentrates on the evolution of law from the primitive legal institutions of the
ancient communities.
Characteristics of Historical School:
1. Law is found and not made
2. Law is self-existent. i.e. exists even before a State comes into force
3. Law is independent of political authority and enforcement. It is enforced by the
sovereign because it is already law; it does not become law because of
enforcement by the sovereign.
4. Law created in this form is called custom.
Savigny:
Savigny is regarded as the founder of the historical school. He was a teacher in
the University of Berlin. His works include “The Law of Possession” The History
of Roman Law in the Middle Ages” According to Savigny, the chief supporter of
the school held that law is the spontaneous expression of the people and is the
result of organic growth. Law of a Country develops in the same way in which
language and culture of that country develop. According to him law is the result
of the popular spirit of the people which he termed as VOLKSGEIST (Volk =
people, geist=spirit) So law has its foundation in the common consciousness of
the people and associated with people. He further says that law grows with the
nation, increases with the nation and dies with its dissolution. As per him the
Nation means people.
2) Henry Maine:
The honour of being the founder of the Historic Comparative School of
jurisprudence in England belongs undoubtedly to Sir Henry Maine. Maine
improved upon Savigny’s legal theory explaining the inter-relationship between
law and community. He recognized the role of legal fictions, equity and
legislation in the evolution of law.
The Historical School traced evolution of law through four stages namely, divine
law, customary law, priestly class as a sole repository of customary law and
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codification. Societies which do not progress beyond the fourth stage of legal
development are called static societies whereas those which continue
development of law by new methods are called progressive societies.

Q. Philosophical School
Philosophical school is interested primarily in the “development of the idea of
justice as an ethical and moral phenomenon and its manifestation in the principles
applied by the courts”. The exponents of this School of Jurisprudence firmly
believed that law, in order to command respect from the society, must have an
element of ethical value so that it may achieve the ideals of thought which has
been called as the Ethical or Philosophical School of Jurisprudence.
Hugo Grotius:
He says that there are certain rules of human conduct on which there is a general
agreement among majority of mankind. Hugo Grotius is regarded as the Father
of the Philosophical jurisprudence. According to him, law investigates the
purpose of law and the measure and manner in which that purpose is fulfilled.
The Philosophical jurists’ regards law neither as the arbitrary command of a Ruler
nor as the creation of historical necessity, but is the product of human reason and
its purpose is to elevate and ennoble human personality.
Immanuel Kant:
Distinguished between law and ethics. “Ethics concerns itself with laws of free
action in so far as we cannot be compelled to it but positive law concerns itself
with free action in so far as we can be compelled to it. Ethics is science of Virtue;
Law is science of Right.
Hagel:
Emphasized the purpose of law. The free Ego (i.e. individual will) comes into
conflict with other ‘Egos’ in society. The purpose of legal order is to produce a
synthesis of these conflicting ‘Egos in society’. His main contribution to
philosophical jurisprudence is the development of the idea of ‘Evolution’ in
society. Kohler and Stammler are the other Jurists who contributed to
Philosophical School.

Q. Sociological Schools of jurisprudence

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The sociological school of jurisprudence emerged as a result of the synthesis of
various juristic thoughts.
Auguste Comte:
He was the first to use the term “Sociology” and he is considered to be the founder
of the science of sociology.
Roscoe Pound (1870-1964):
He conceived of law as “social engineering” whose main task is to accelerate the
process of social ordering by making all efforts to avoid conflicts of interests of
individuals in the Society. Pound classified the various interests into three heads:
viz.
A. Private Interests
B. Public Interests
C. Social Interests
Q. Realist School
An extreme wing of sociological Jurisprudence developed in America was the
Realist School.
Holmes:
Justice Holmes issued a paper in which for the first time seeds of realism were
sown by him.
Gray:
Gray defined law as “what the judges declare”

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Unit-II:
Theories of Law - Kelsen’s Pure Theory of law – Hart’s Concept of law – Modern
Trends in analytical and Normative Jurisprudence – Economic Theory of Law –
Views of Karl Marx - American and Scandinavian Realism – Critical Legal
Studies Movement.
Q. Kelsen’s Pure Theory of law
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,

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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

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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.There 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.

Q. Hart’s Concept of law

Jurisprudence is a name given to a certain type of investigation into law, an
investigation of an abstract, general and theoretical nature which seeks to lay bare
the essential principles of law and legal systems.
Different jurists have given different definitions of the term jurisprudence as per
follows:-

According to Salmond jurisprudence is the ‘Science of the first principles of the

civil law’.
According to Austin jurisprudence is the ‘Philosophy of positive law’ ,etc.
Professor Herbert Lionel Adolphus Hart (H.L.A.Hart) is an influential legal
professor. Hart revolutionized the methods of jurisprudence and the philosophy
of law. He authored ‘The Concept of Law’ and made major contributions to
political philosophy. He is regarded as the leading contemporary representative
of British positivism. From his book it shows that he is a linguistic, philosopher,
barrister and a jurist.
To Hart, law is system of rules. According to him: “Where there is law, the human
conduct non-optional or obligatory.” Thus idea of obligation is at the core of a

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Rule. Rules of obligation are supported by great social pressures because they are
felt necessary to maintain the society. To Hart, concept of law is equivalent to the
legal system. Hart mentioned that rules of law fall into different logical categories
that have distinct legal and social functions. He distinguished primary rules from
secondary rules or duty imposing rules from power conferring rule. Primary rules
are rules meant to guide the conduct of the individuals and other legal persons
and secondary rules are rules about how primary rules are to be created and
recognized. The example of duty imposing rules are rules of Income Tax Act,
Wealth tax Act, etc. which requires that taxes must be paid. The examples of
power conferring rules are power to enter into a contract, make will etc. These
may be used or ignored.
Concept of “Rule”

Law can be analysed in terms of rules which is largely based on Hart’s theory of
law. According to him, rules are concerned not with what happens but with what
is to be done. Rules are imperative or prescriptive rather than indicative or
descriptive. Rules have a certain independence or self-legitimating character.
Rules are different from commands. Commands normally call for one unique
performance whereas rules have a general application and demands repeated
activity. In some cases rules are constitutive and define the activity in a question
like rules of a game while in others they regulate activities which would take
place in any case whether the rules existed or not like rules of grammar, of morals
and of law.
Rules of game, club, and societies share the feature of rule of law in so far as
these are of formal nature, are open to amendment by bodies authorized for this
purpose, and some sort of adjudicating process is also found when there is any
difficulty as to meaning or the application of these rules. As against these rules
of morality or law are not amenable to legislative alteration and are not resolvable
by adjudication.
Legal and moral rules both are invitum. Obedience to them is non-optional. Rules
of game and club apply only within limited context, to players during the game.
Law and morals are concerned with much broader aspects of life. Rules of games
are not compulsory; withdrawal and resignation are permanent possibilities. In
case of morals, there is no such choice and this is largely true of law also. Thus
according to Hart, ‘Law consists of rules which are of broad application and non-
optional character, but which are at the same time amenable to formalization,
legislation and adjudication.’

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Rules are of two kinds:-

Primary Rules
Secondary Rules
Primary rules regulate the behavior of man in the society. These rules either grant
rights or impose obligations on the members of the society.

Example:- Rules of criminal law forbidding murder, robbery, rash driving are
primary rules, tort rules, the individual right to freedom of speech ,the provisions
of contracts that define the primary obligations of the parties, the environmental
law rule that forbids discharge of toxic substances in rivers and streams etc.

Secondary rules are those that stipulate how and by whom the primary rules may
be formed, recognized modified or extinguished.
Example: - Contract law rules that enable parties to form contracts, the rules that
allow testators to create a will, the constitutional rules that confer legislative
powers on Congress, the statute that authorizes the Supreme Court to promulgate
rules of practice and procedure for the federal courts.

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you
what your are legally obligated to do (or refrain from) and what consequences
attach to obedience or disobedience. Thus, the criminal law rules that prohibit
theft, forbid certain conduct and provide for penalties for violating the
prohibition. Technically, the class of secondary rules includes everything except
primary rules. For example, secondary rules are legal rules that allow for the
creation, extinction, and alteration of secondary rules; secondary rules are power-
conferring rules. Thus, contract law empowers individuals and firms to make
contracts; contracts themselves are usually collections of primary rules. More
precisely, primary rules are rules that govern conduct, and secondary rules are
rules that do not. Thus, the distinction between primary and secondary rules is
just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-conferring
rules confer power. This leaves open the possibility that some rules can regulate
other rules, but do so by imposing duties. For example, a secondary rule might
impose a duty to legislate in a certain way or a prohibition on certain kinds of rule
creation. One of the really nifty things about Hart's introduction of the distinction
between primary and secondary rules was his account as to why secondary rules
are important. We can certainly imagine a system in which there were primary

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rules, but no secondary rules. This would be a system of customary law. Certain
actions would be required; others would be taboo. But there would be no
mechanism by which the set of obligations could be changed. Of course,
customary law need not be completely static. It is possible that customs might
gradually change over time, but this process would require a change in social
norms. It could not be legislated. Secondary rules enable relatively more rapid
legal change at a lower cost. Moreover secondary rules enable individuals to
create customized primary rules that govern their private relationships or
privately owned resources.

Q. Analytical and Normative Jurisprudence

Analytical Jurisprudence

The principal objective of analytic jurisprudence has traditionally been to provide

an account of what distinguishes law as a system of norms from other systems of
norms, such as ethical norms. As John Austin describes the project, analytic
jurisprudence seeks “the essence or nature which is common to all laws that are
properly so called” (Austin 1995, p. 11). Accordingly, analytic jurisprudence is
concerned with providing necessary and sufficient conditions for the existence of
law that distinguish law from non-law.
While this task is usually interpreted as an attempt to analyze the concepts of law
and legal system, there is some confusion as to both the value and character of
conceptual analysis in philosophy of law. As Brian Leiter (1998) points out,
philosophy of law is one of the few philosophical disciplines that takes conceptual
analysis as its principal concern; most other areas in philosophy have taken
a naturalistic turn, incorporating the tools and methods of the sciences. To clarify
the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number
of different purposes that can be served by conceptual claims:

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 1. to track linguistic usage;
2. to stipulate meanings;
3. to explain what is important or essential about a class of objects; and
4. to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial,
project in contemporary legal theory. Conceptual theories of law can be divided
into two main headings: (a) those that affirm there is a conceptual relation
between law and morality and (b) those that deny that there is such a relation.
Nevertheless, Ronald Dworkin’s view is often characterized as a third theory
partly because it is not clear where he stands on the question of whether there is
a conceptual relation between law and morality.
a. Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which is that
there is a necessary relation between the concepts of law and morality. According
to this view, then, the concept of law cannot be fully articulated without some
reference to moral notions. Though the Overlap Thesis may seem unambiguous,
there are a number of different ways in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of St.
Thomas Aquinas and William Blackstone. As Blackstone describes the thesis:
This law of nature, being co-eval with mankind and dictated by God himself, is
of course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this;
and such of them as are valid derive all their force, and all their authority,
mediately or immediately, from this original (1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute the
theoretical core of classical naturalism: 1) there can be no legally valid standards
that conflict with the natural law; and 2) all valid laws derive what force and
authority they have from the natural law. On this view, to paraphrase Augustine,
an unjust law is no law at all.
Related to Blackstone’s classical naturalism is the neo-naturalism of John Finnis
(1980). Finnis believes that the naturalism of Aquinas and Blackstone should not
be construed as a conceptual account of the existence conditions for law.
According to Finnis (see also Bix, 1996), the classical naturalists were not
concerned with giving a conceptual account of legal validity; rather they were
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concerned with explaining the moral force of law: “the principles of natural law
explain the obligatory force (in the fullest sense of “obligation”) of positive laws,
even when those laws cannot be deduced from those principles” (Finnis 1980, pp.
23-24). On Finnis’s view of the Overlap Thesis, the essential function of law is
to provide a justification for state coercion. Accordingly, an unjust law can be
legally valid, but cannot provide an adequate justification for use of the state
coercive power and is hence not obligatory in the fullest sense; thus, an unjust
law fails to realize the moral ideals implicit in the concept of law. An unjust law,
on this view, is legally binding, but is not fully law.

Lon Fuller (1964) rejects the idea that there are necessary moral constraints on
the content of law. On Fuller’s view, law is necessarily subject to a procedural
morality consisting of eight principles:

P1: the rules must be expressed in general terms;

P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on
them; and
P8: the rules must be administered in a manner consistent with their wording.

On Fuller’s view, no system of rules that fails minimally to satisfy these

principles of legality can achieve law’s essential purpose of achieving social order
through the use of rules that guide behavior. A system of rules that fails to satisfy
(P2) or (P4), for example, cannot guide behavior because people will not be able
to determine what the rules require. Accordingly, Fuller concludes that his eight
principles are “internal” to law in the sense that they are built into the existence
conditions for law: “A total failure in any one of these eight directions does not
simply result in a bad system of law; it results in something that is not properly
called a legal system at all” (1964, p. 39).

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b. Legal Positivism
Opposed to all forms of naturalism is legal positivism, which is roughly
constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the
Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact
Thesis (which is also known as the Pedigree Thesis) asserts that it is a necessary
truth that legal validity is ultimately a function of certain kinds of social facts.
The Conventionality Thesis emphasizes law’s conventional nature, claiming that
the social facts giving rise to legal validity are authoritative in virtue of some kind
of social convention. The Separability Thesis, at the most general level, simply
denies naturalism’s Overlap Thesis; according to the Separability Thesis, there is
no conceptual overlap between the notions of law and morality.
i. The Conventionality Thesis
According to the Conventionality Thesis, it is a conceptual truth about law that
legal validity can ultimately be explained in terms of criteria that are authoritative
in virtue of some kind of social convention. Thus, for example, H.L.A. Hart
(1996) believes the criteria of legal validity are contained in a rule of recognition
that sets forth rules for creating, changing, and adjudicating law.
ii. The Social Fact Thesis
The Social Fact Thesis asserts that legal validity is a function of certain social
facts. Borrowing heavily from Jeremy Bentham, John Austin (1995) argues that
the principal distinguishing feature of a legal system is the presence of a sovereign
who is habitually obeyed by most people in the society, but not in the habit of
obeying any determinate human superior. On Austin’s view, a rule R is legally
valid (that is, is a law) in a society S if and only if R is commanded by the
sovereign in S and is backed up with the threat of a sanction. The relevant social
fact that confers validity, on Austin’s view, is promulgation by a sovereign
willing to impose a sanction for noncompliance.
iii. The Separability Thesis
The final thesis comprising the foundation of legal positivism is the Separability
Thesis. In its most general form, the Separability Thesis asserts that law and
morality are conceptually distinct. This abstract formulation can be interpreted in
a number of ways. For example, Klaus F¸þer (1996) interprets it as making a
meta-level claim that the definition of law must be entirely free of moral notions.
This interpretation implies that any reference to moral considerations in defining
the related notions of law, legal validity, and legal system is inconsistent with the
Separability Thesis.

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c. Ronald Dworkin’s Third Theory
Ronald Dworkin rejects positivism’s Social Fact Thesis on the ground that there
are some legal standards the authority of which cannot be explained in terms of
social facts. In deciding hard cases, for example, judges often invoke moral
principles that Dworkin believes do not derive their legal authority from the
social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40).
Nevertheless, since judges are bound to consider such principles when relevant,
they must be characterized as law. Thus, Dworkin concludes, “if we treat
principles as law we must reject the positivists’ first tenet, that the law of a
community is distinguished from other social standards by some test in the form
of a master rule”
Normative Jurisprudence

Normative jurisprudence involves normative, evaluative, and otherwise

prescriptive questions about the law. Here we will examine three key issues: (a)
when and to what extent laws can restrict the freedom of citizens, (b) the nature
of one’s obligation to obey the law, and (c) the justification of punishment by
law.
a. Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for example,
remove certain behaviors from the range of behavioral options by penalizing them
with imprisonment and, in some cases, death. Likewise, civil laws require people
to take certain precautions not to injure others and to honor their contracts. Given
that human autonomy deserves prima facie moral respect, the question arises as
to what are the limits of the state’s legitimate authority to restrict the freedom of
its citizens.
i. Legal Moralism

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Legal moralism is the view that the law can legitimately be used to prohibit
behaviors that conflict with society’s collective moral judgments even when those
behaviors do not result in physical or psychological harm to others. According to
this view, a person’s freedom can legitimately be restricted simply because it
conflicts with society’s collective morality; thus, legal moralism implies that it is
permissible for the state to use its coercive power to enforce society’s collective
morality.
ii. Legal Paternalism
Legal paternalism is the view that it is permissible for the state to legislate against
what Mill calls “self-regarding actions” when necessary to prevent individuals
from inflicting physical or severe emotional harm on themselves. As Gerald
Dworkin describes it, a paternalist interference is an “interference with a person’s
liberty of action justified by reasons referring exclusively to the welfare, good,
happiness, needs, interests or values of the person being coerced” (G. Dworkin
1972, p. 65). Thus, for example, a law requiring use of a helmet when riding a
motorcycle is a paternalistic interference insofar as it is justified by concerns for
the safety of the rider.
iii. The Offense Principle
Joel Feinberg believes the harm principle does not provide sufficient protection
against the wrongful behaviors of others, as it is inconsistent with many criminal
prohibitions we take for granted as being justified. If the only legitimate use of
the state coercive force is to protect people from harm caused by others, then
statutes prohibiting public sex are impermissible because public sex might be
offensive but it does not cause harm (in the Millian sense) to others.
b. The Obligation to Obey Law
Natural law critics of positivism (for example, Fuller 1958) frequently complain
that if positivism is correct, there cannot be a moral obligation to obey the law qua
law (that is, to obey the law as such, no matter what the laws are, simply because
it is the law). As Feinberg (1979) puts the point:
The positivist account of legal validity is hard to reconcile with the [claim] that
valid law as such, no matter what its content, deserves our respect and general
fidelity. Even if valid law is bad law, we have some obligation to obey it simply
because it is law. But how can this be so if a law’s validity has nothing to do with
its content?

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The idea is this: if what is essential to law is just that there exist specified recipes
for making law, then there cannot be a moral obligation to obey a rule simply
because it is the law.
C. The Justification of Punishment
Punishment is unique among putatively legitimate acts in that its point is to inflict
discomfort on the recipient; an act that is incapable of causing a person minimal
discomfort cannot be characterized as a punishment. In most contexts, the
commission of an act for the purpose of inflicting discomfort is morally
problematic because of its resemblance to torture. For this reason, institutional
punishment requires a moral justification sufficient to distinguish it from other
practices of purposely inflicting discomfort on other people.
Justifications for punishment typically take five forms: (1) retributive; (2)
deterrence; (3) preventive; (4) rehabilitative; and (5) restitutionary. According to
the retributive justification, what justifies punishing a person is that she
committed an offense that deserves the punishment. On this view, it is morally
appropriate that a person who has committed a wrongful act should suffer in
proportion to the magnitude of her wrongdoing. The problem, however, is that
the mere fact that someone is deserving of punishment does not imply it is morally
permissible for the state to administer punishment; it would be wrong for me, for
example, to punish someone else’s child even though her behavior might deserve
it.
Q. Modern Trends
Jurisprudence, the modern trend in legal analytical studies
Jurisprudence is a branch of studies which systematically researches law. A jurist
is a researcher who detects responses of a society and reveals its legal impacts
to the awakened world. He critically analyses conflicts between society and law
and proposes remedies for it.
This character of this branch makes it different from other social researches. Law
prevails in society by the consent of people. Individuals consent to follow law for
their mutual existence. It is a moot question whether individual or society more
influences the legislature in the process of legislation. Occasionally, the
binding effect of law causes inconsistency among the people of the society. A
jurist can analyze the implications of a policy from different perspectives of the
society.
Jeremy Bentham, the first exponent of Utilitarianism, teaches law as morality.
In his opinion, moral values are mastered by pain and pleasure. Pleasure

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promotes happiness of majority. A legislation, which increases pain of a society,
cannot be encouraged in utilitarian views. JS Mill, also a follower of the same
school states that morality is right. Prevailing legislations, of the time, claim
that they are legislated for the common good of the society.
Utilitarian Jurists, especially Jeremy Bentham, introduced a system of calculation
of pain and pleasure of the society. India’s recent economic policy to permit
foreign direct investment in multi branded retail sector can be analyzed on a
juristic view.
It is evident that there are a number of non-branded retailers in India’s retail
sector. More number of consumers in India depends on non-branded retailers than
branded. Branded retailers are very few in number. If foreign direct investment is
permitted in multi brand retail sector, then it can support only those retailers who
sell branded products. It will adversely affect non-branded retailers. From a
utilitarian perspective, the introduction of FDI in multi branded retail sector may
result in a scenario where majority suffering for the sake of a minority. Eventually
it will result in an economic fall down of the whole society.
Libertarians advocate individual freedom and liberty. In their opinion, law
should not curtail liberty of an individual. Individual should have the right to
decide what he wants or what he doesn’t want. When liberty is absolute,
people can do whatever they like. They can propagate, practice and profess
their ideas without any interventions. On the other hand they may use others as a
means to attain this. Critically discussed topics like euthanasia, organ harvesting,
change of the concept of marital relation to living relationship, homosexual
relations etc can be justified on the basis of libertarian view.
Immanuel Kant’s thoughts on liberty have slight differences. He prescribes law
with liberty but which is not absolute. It has to undergo certain conditions. He
held that “no one shall use others as a means for their end”. He explains that even
a person couldn’t use himself as a means to fulfill his own desires. He gave
emphasis to universalization of laws. This means that if a law is uniformly
applicable to all circumstances, then it is justifiable. He teaches that no one should
do an act by the influence of an external pressure. Thrust to obey law should
come from inside not from outside.

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Post-colonial period witnessed significant amount of law-making that affected
much of social transformation in India. This started with the framing of Indian
Constitution, a document which could be referred to as socio-political and right-
based in approach. The Constitution has actually sown the seeds of a slow social
revolution that had triggered many progressive and purposive law-making. The
Constitution by incorporating provisions that brings in affirmative action,
promotes multiculturalism and measures of an obligation upon the State leading
to a welfare mechanism is an epitome of a law made within the framework of
sociological jurisprudence. Even though the Constituent Assembly was not an
elected body, the views and issues that were discussed and further got reflected
in the Constitution, had definitely the aspirations of the people and considered the
various aspects of interest of the Indian society. Further, we could very well
derive that the Constitution of India, is a purposive law-making for leading India
into a slow social revolution, and over the period of time Constitution has
moulded its shape with the changing need of the nation. In the following part an
attempt have been made to look into certain instances by which the laws as a tool
for social control and purposive policy making have been used so as to transform
the society. (a) Affirmative Action Affirmative action in India could be traced to
the Constitution. The provisions relating to affirmative action are Article 46 in
Part IV of the Constitution, which deals with directive principles of State policy
and also in Part III dealing with fundamental rights by way of Article 15(4) and
Article 16(4) for education and government jobs. Article 15(4) and Article 16(4)
are brought about by the first amendment to the Constitution, so as to balance the
original provisions, prohibiting any discrimination on the basis of caste, class,
and sex. It is further stated that affirmative action, as many of the fundamental
rights and directive principles provisions were brought in with the idea of greater
social equality. This clearly shows that the affirmative action in India was
incorporated in the Constitution of India, which is the basic policy document, as
reconciliation of individual and societal interest and to emphasizing on purposive
law making method under the sociological jurisprudence, to address the need of
Indian society at large, by removing the caste-based discrimination and
inaccessibility to opportunities. So in turn the affirmative action would lead to
removal of caste-based demarcation and lead to social transformation. But many
academic works have pointed out to the fact that making caste as major criteria
for reservation in public jobs and education had led to a situation of multiplicity
and re-enforcement of caste system.

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(b) Hindu Law Codification Hindu law codification, was one the steps taken by
the Indian Government during mid-1950&, so as to carry forward the notion of
women& equality and legitimizing it in Indian society. Hindu law reform was
seen as the first step towards this. Commonly referred to as the Hindu code, the
codified laws include the Hindu Marriage Act, 1955, the Hindu Minority and
Guardianship Act, 1956, the Hindu Succession Act, 1956 and the Hindu
Adoptions and Maintenance Act, 1956.
(c) Panchayati Raj Institutions (PRI) Though Mahatma Gandhi, had advocated
for a village model of development, with self-dependent villages having resources
and even the dispute resolution being done at the village level, the constitutional
framers were not very much in favor of such a model.41 The model that finally
got implanted in India is a top-down approach model, with a partial mention to
the need for village level administration in Article 40 of Constitution of India.
(d) Access to justice and PIL The greatest contribution the Indian judiciary has
provided regarding access to justice for the people of India, could very well be
identified as the concept of public interest litigation (PIL). Prof. Upendra Baxi
has referred this judicial activism trend by the nomenclature of Social Action
Litigation (SAL) as this is an Indian brand of class action suits and noted that the
Supreme Court of India is suffering seriously. The most important aspect
regarding PIL is that of relaxing the locus standi concept, any &public-spirited
person can approach the constitutional courts and could bring into the courts
notice the blatant violations of fundamental rights of people who are not capable
of being approaching the courts themselves. PIL is a concept aimed at increasing
the accessibility to justice and forms a part of constitutional jurisprudence in
India.
Q. Legal Realism and Economic Theory of Law
Legal Realism
The legal realist movement was inspired by John Chipman Gray and Oliver
Wendall Holmes and reached its apex in the 1920s and 30s through the work of
Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed the
conceptual approach of the positivists and naturalists in favor of an empirical
analysis that sought to show how practicing judges really decide cases (see Leiter
1998). The realists were deeply skeptical of the ascendant notion that judicial
legislation is a rarity. While not entirely rejecting the idea that judges can be
constrained by rules, the realists maintained that judges create new law through
the exercise of lawmaking discretion considerably more often than is commonly
supposed. On their view, judicial decision is guided far more frequently by

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political and moral intuitions about the facts of the case (instead of by legal rules)
than theories like positivism and naturalism acknowledge.
As an historical matter, legal realism arose in response to legal formalism, a
particular model of legal reasoning that assimilates legal reasoning to syllogistic
reasoning. According to the formalist model, the legal outcome (that is, the
holding) logically follows from the legal rule (major premise) and a statement of
the relevant facts (minor premise). Realists believe that formalism understates
judicial lawmaking abilities insofar as it represents legal outcomes
as entailed syllogistically by applicable rules and facts. For if legal outcomes are
logically implied by propositions that bind judges, it follows that judges lack legal
authority to reach conflicting outcomes.
Legal realism can roughly be characterized by the following claims:
1. the class of available legal materials is insufficient to logically entail a
unique legal outcome in most cases worth litigating at the appellate level
(the Local Indeterminacy Thesis);
2. in such cases, judges make new law in deciding legal disputes through the
exercise of a lawmaking discretion (the Discretion Thesis); and
3. judicial decisions in indeterminate cases are influenced by the judge’s
political and moral convictions, not by legal considerations.
Though (3) is logically independent of (1) and (2), (1) seems to imply (2): insofar
as judges decide legally indeterminate cases, they must be creating new law.
It is worth noting the relations between legal realism, formalism, and positivism.
While formalism is often thought to be entailed by positivism, it turns out that
legal realism is not only consistent with positivism, but also presupposes the truth
of all three of positivism’s core theses. Indeed, the realist acknowledges that law
is essentially the product of official activity, but believes that judicial lawmaking
occurs more frequently than is commonly assumed. But the idea that law is
essentially the product of official activity presupposes the truth of positivism’s
Conventionality, Social Fact, and Separability theses. Though the preoccupations
of the realists were empirical (that is, attempting to identify the psychological and
sociological factors influencing judicial decision-making), their implicit
conceptual commitments were decidedly positivistic in flavor.
Critical Legal Studies
The critical legal studies (CLS) movement attempts to expand the radical aspects
of legal realism into a Marxist critique of mainstream liberal jurisprudence. CLS
theorists believe the realists understate the extent of indeterminacy; whereas the
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realists believe that indeterminacy is local in the sense that it is confined to a
certain class of cases, CLS theorists argue that law is radically (or globally)
indeterminate in the sense that the class of available legal materials rarely, if ever,
logically/causally entails a unique outcome.
CLS theorists emphasize the role of ideology in shaping the content of the law.
On this view, the content of the law in liberal democracies necessarily reflects
“ideological struggles among social factions in which competing conceptions of
justice, goodness, and social and political life get compromised, truncated,
vitiated, and adjusted” (Altman 1986, p. 221). The inevitable outcome of such
struggles, on this view, is a profound inconsistency permeating the deepest layers
of the law. It is this pervasive inconsistency that gives rise to radical
indeterminacy in the law. For insofar as the law is inconsistent, a judge can justify
any of a number of conflicting outcomes.
At the heart of the CLS critique of liberal jurisprudence is the idea that radical
indeterminacy is inconsistent with liberal conceptions of legitimacy. According
to these traditional liberal conceptions, the province of judges is to interpret, and
not make, the law. For, on this view, democratic ideals imply that lawmaking
must be left to legislators who, unlike appointed judges, are accountable to the
electorate. But if law is radically indeterminate, then judges nearly always decide
cases by making new law, which is inconsistent with liberal conceptions of the
legitimate sources of lawmaking authority.
Law and Economics
The law and economics movement argues for the value of economic analysis in
the law both as a description about how courts and legislators do behave and as a
prescription for how such officials should behave. The legal economists, led by
Richard Posner, argue that the content of many areas of the common law can be
explained in terms of its tendency to maximize preferences:
[M]any areas of law, especially the great common law fields of property, torts,
crimes, and contracts, bear the stamp of economic reasoning. It is not a refutation
that few judicial opinions contain explicit references to economic concepts. Often
the true grounds of decision are concealed rather than illuminated by the
characteristic rhetoric of judicial opinions. Indeed, legal education consists
primarily of learning to dig beneath the rhetorical surface to find those grounds,
many of which may turn out to have an economic character (Posner 1992, p. 23).
Posner subscribes to the so-called efficiency theory of the common law,
according to which “the common law is best (not perfectly) explained as a system
for maximizing the wealth of society” (Posner 1992, p. 23).

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More influential than Posner’s descriptive claims is his normative view that law
should strive to maximize wealth. According to Posner, the proper goal of the
statutory and common law is to promote wealth maximization, which can best be
done by facilitating the mechanisms of the free market. Posner’s normative view
combines elements of utilitarian analysis with a Kantian respect for autonomy.
On the utilitarian side, markets tend to maximize wealth and the satisfaction of
preferences. In a market transaction with no third-party effects, wealth is
increased because all parties are made better off by the transaction-otherwise
there would be no incentive to consummate the transaction-and no one is made
worse off.
On the Kantian side, the law should facilitate market transactions because market
transactions best reflect autonomous judgments about the value of individual
preferences. At least ideally, individuals express and realize their preferences
through mutually consensual market transactions consummated from positions of
equal bargaining power. Thus, market transactions tend, ideally, to be both
efficient (because they tend to maximize wealth without harmful third-party
effects) and just (because all parties are consenting).
Economics of law and law with economics are two interrelated concepts having
a very wide perspective. Economics of law has a methodological approach, i.e.
the analysis of law from the perspective of economics along with the
introspection of the field of economics. Economics has a lot of impact on law,
and such an influence cannot be ignored. Although the law has a lot of impact on
the economy, this fact has not been taken into consideration in theory.
This is a newly developed discipline, which is gradually coming up. The origin
of this approach can be traced to the articles written by Ronald Coase and his
theorem.
The alternative approaches to the economics of law, which are commonly in use
are related to Austrian school (Hayek), “old institutional” economics
(Commons) and transaction cost economics (Coase) as well as the social
systems theory (Pearsons, Luhman and Teubner).
The first three theories are the most important ones as they lay the foundation,
regarding law and economic order. The Foundationalism theory also admits and
recognises the existence of the relation between law and the economy. The last
theory, which is also known as the system theory, takes into consideration the
independent existence of both economy and law as social systems and is therefore
known as anti-foundationalist theory. This classification is appropriate to study
the difference between modern and postmodern legal theories.

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Economic analysis of law
The Chicago School of Law
Economics of law has often been associated with the Chicago school of law and
economics. According to R. Posner, the popularity of this approach results from
two factors:
• The crisis of traditional legal doctrine.
• The success of the economics of non-market behaviour.
The starting point for economic analysis of law is the assumption that decisions
may be based either on intuition and vague moral beliefs or on scientific data.
The rationale behind the economic analysis of law is rather simple: to implement
economics to the legal decision-making process.
Assumptions under the Chicago School Of Law
The Chicago school implemented welfare economics with its theory of self-
interest, price and efficiency.
• Regarding human nature: it assumes that people are rational and they
maximize their satisfaction in a non-market as well as in market behaviour.
Their preferences may be represented by a utility function. The “economic
man” may be perfectly rational while breaking legal norms if it maximizes
his utility.
• The response of individuals: individuals respond to price incentives in
non-market behaviour in the same way as if they were in the actual market.
It means that legal sanctions are treated as prices.
• Legal decision-making target: the legal decision-making process should
imitate the market. It means that the law should be read from the
perspective of economic efficiency. The Chicago approach derives from
the Kaldor-Hicks criterion of wealth maximization.
The other theory stemming from this methodology is a hypothesis about the
internal efficiency of common law, the efficiency achieved due to the process of
selection of norms by virtue of litigation.
The Chicago approach includes both: positive and normative theory of
law. It claims that law is based on efficiency principle and that judges, even if
using other terms such as justice, still treat efficiency enhancement as the main
purpose of the law. Presently, economic analysis of law might be regarded as
one among equal trends of the contemporary jurisprudence.

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Criticism
It was strongly opposed by many of the authors. Some of the greatest critics are
as follows.
• Ronald Dworkin opposed the recognition of wealth as a basic value
within society and the dependence of other values and allocation of Rights
upon wealth maximization. Dworkin pointed out that the initial allocation
of rights cannot be instrumental, i.e. based on the efficiency principle
because the argument is deteriorated by its circularity.
• According to Coase,” economics of law was to overcome the narrow and
artificial approach of the welfare economics, especially concentrated on
the price theory and equilibrium model.”.He was in opposition of the
widening of the traditional principles of the economy to include the non-
market sectors.
The economic imperialism is, not only a theoretical project. It reflects a wider
social, political and historical phenomenon: the “economization” of social life.
The economy has a major role to play in framing the structure of the society, due
to the failure of the traditional theories time and again. In addition to this, the
technical progress, structured civilization, globalization and the bankruptcy of the
centrally planned economies, also fueled up the process.
According to Marshall, “Economics had to limit its scope to processes that had a
price measurement.” He also believed that economic laws were generalised facts
about the behaviour of human beings, which could be measured in terms of utility.
Therefore, it can be seen that economics has been based on the models by taking
inspiration from real life.
Thus, these models embrace new ideas such as the concept of equilibrium as
devised by Marshall or the concept of the market system and general equilibrium
as given by Walras and formalised by Arrow and Debreu. The majority of
economic analysis remains a normative project rather than a positive description
or explanation.
Therefore, a new methodology is required to do a complete interdisciplinary
analysis.
Foundationalist theories on law and economics
1. J.R. Commons Theory
J.R. Commons gave one of the most important and the earliest theory on law and
economics. His theory of property lead to generalised observations related to the

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evolution of law and economy. He termed “market” as a process, wherein the
flow of transactions takes place. According to him, the existence of the market
was only possible on the collaboration of two characters and transactions i.e. the
actual transaction and its next best alternative.
The price system was operating in this areal environment, which was determined
by the inequalities between parties. This disparity was related to the distribution
of economic power among the society. The transactions between legal and
economic superior and legal and economic inferior took place not in the market
but within the economic institutions. The economic power, in turn, influenced the
legal power of the institutions, thus widening the inequality.
The notion of legal power associated with the different strata of the society as
implemented by Commons was closely connected to Hohfeld’s theory of legal
power and legal rights. Thus this leads to the development of the concept of the
managerial transaction and economic institutions.
2. Ronald Coase Theory
Ronald Coase also shared the same view as J.R. Commons. He adopted the
distinction between bargaining and managerial transactions, stressed by
Commons. The former referred to market exchanges, the matter to economic
institutions “superseding” price mechanisms, such as firms and government.
According to Coase, the usage of Zero Transaction Costs (ZTC world) made
the initial allocations of rights irrelevant. But, this theory does not work in the
real world. In reality, the law has an overall effect on the transactional costs as
well as its allocation. This forms the ground for the normative Coase theorem,
which states that judges taking up any legal decisions should analyse all the
economic factors and their implications thoroughly. In addition to this, they
should consider them in order to minimize the transactional costs “insofar as this
is possible without creating too much uncertainty about the legal position
itself”.
3. The General Equilibrium Model
The General Equilibrium Model is also a way which helps in minimising the
transactional costs: by substitution of the market with a firm, which can be
seen as an institution with its own hierarchical authority, capable of decision
making power on its own.
Law thus creates a framework for the economic system to function properly. One
of the most important features of this framework remains the certainty about the

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legal position which is the limit of the instrumental purpose oriented legal
decision-making process.
The close analysis of Coase theory provides the view that economics of law seems
to be a more profound theory of the relationships between two systems of values,
two frameworks of society: law regarded as a normative system providing order
and stability for any actions of individuals, and market economy: economic order
maintained by legal rules and consisting of activities of individuals.
According to Hayek, free individual action defines the spontaneous order.
Nevertheless, the liberty of agents is limited by the so-called “abstract rules of
just conduct”. Hayek created a difference between the rules of just conduct
identified with nomos and the purpose-oriented rules resulting from the
legislative process- thesis. He further added that nomos is made up of rules
without any detailed purpose. Although the main objective of nomos collectively
as a set of “principles of just conduct” is to maintain cosmos i.e. spontaneous
order.
On the other hand, thesis defines the purpose oriented norms whose main task
refers to the aims of organization e.g. state. Further, the term social order is
divided into two types, i.e. cosmos and taxis. Cosmos means the spontaneous
order, usually used to refer to the Great Society with its pluralistic approach of
values and forms of social and individual life whereas taxis is the purpose-
oriented order of the state.
The interrelation and interaction between these two types of orders and the rules
are the main issues dealt with by Hayek. He attributes nomos to the rules of
private law whereas thesis to public law.
According to Hayek thesis and nomos should not blend together but be separate
since there is a real threat of domination of public law over private law because
the state has a natural inclination to growing and broadening the scope of the
public regulation. This assumption is however difficult to reconcile with the
contemporary structure of legal order, where the norms of private and public law
interfere between themselves.
Anti-foundationalist theories on law and economics
1. Luhman Theory
The system theory may be traced back to Talcott Parsons and his structural
functionalism. But the paradigm shift from foundationalist to antifoundationalist
social systems theory is associated with the functionalist-structuralism and the
theory of law as autopoiesis endorsed by Luhman.

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According to his theory, the law is characterized as an operationally closed self-
referential and self-replicating autopoietic social subsystem. Law may also be
defined as systematically and institutionally generalized normative behavioural
expectations. This means that law is regarded as a kind of information about the
possible actions taken by the legal system and by the subjects of legal norms –
legal actors. Thus for Luhman the enforcement of legal norms has no separate
significance. According to this theory, it has only the signalling function,
spreading information about the fact that state mechanism enforced or has not
enforced the legal rule.
On the other hand, the system theory of law does not refer exclusively to the legal
system. Social communication is common for all subsystems as a kind of inter-
systemic interface. Law is“the product of emergent reality, the inner dynamics of
legal communications”. Law emerges in the course of the communication process
which is not linear but circular. The same is to be said about the economy, which
is also a closed system.
2. Teubner’s Theory
According to Teubner, law encodes information regarding legality/illegality
whereas economy concerns information about utility and non-utility. Both
systems are totally autonomous, but intellectually some influence is possible
while decoding and translating information. The example such process of
translation of the legal information into economic language is e.g. sanctioning.
The legal sanction is translated by the economic environment as a mere cost or
price. If then such rationale is put into the circulation within the legal system of
communication, some kind of “economisation” of the legal system takes place.
According to Teubner, “hand formula” and “doctrine of efficient breach” are
examples of such a process. Both of these are closed systems of the market, and
the only interaction possible is via the process of communication. Law and
economics co-evolve, along with the social system. Thus the law is hypercycle
characterised by legal procedure, the notion of legal act, legal norms and
doctrines.
The process of co-evolution of law and economy requires a new regulatory
attitude: instead of a traditional “command-and-control” approach, an
“option policy” should be adopted, which is generally a type of reflexive
regulation. Such regulation has an overall influence on the economic system in
a more realistic way. This can be observed by the fact that the legal acts affect
both the systems equally. Thus, the regulations should not only be effective
within the scope of legal order but also from the perspective of the economic

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agents. It is a well-known fact admitted that this theory of social systems gives
an interdisciplinary insight of the interrelation between law and economy.
Interdisciplinary Paradigm
The foundationalist and anti-foundationalist theories of law and economics
contradict each other. This contradiction is related to the historical perspective.
The problem is in reality closely connected with the controversy on historical
justice in private law. The historical justice has been derived from the notion of
the Aristotelian theory of justice. He referred commutative justice to market
exchange.
The market forces define the price and the exchange-value accordingly. Only in
case of the collapse of voluntary exchange, the judge determines the price. He
does not represent the state but also a kind of justice system which is based on
distributive justice. Aristotle rejected the possibility of founding social life on
market exchange.
But, Aristotle did not distinguish between society and community – Greek polis
was based on interpersonal relations, on friendship rather than on an exchange.
The difference between those two types of relationships is based on the
assumption that friendship stems from the care about others and not from the self-
interest, as in the case of market relations. Therefore the Aristotelian notion of
friendship seems like a kind altruistic behaviour, which from the economic
perspective may be characterized as irrational or at least unexplainable.
According to Aristotle, there are two basic aspects of the law.
• Firstly, the law has to be seen as a piece of centralized information in the
form of a cognitive resource maintaining the expectations about the
behaviour of other agents. The nature of law as a cognitive resource is
linked to the legal norms and principles communicated in advance and used
as a kind of mechanism harmonizing social cooperation. This is what
would be called the essence of law, according to the theory of social
systems’ or the autopoietic theory of law.
• Secondly, the law is an institutionalised normative mechanism which can
be used for settlement of disputes, along with being a foundation of social
order. The reality of enforcement is not virtual system theory suggests, but
rather vicarious. Many legal rules are, in fact, self-imposing and may
resemble conventions. The ultimate character of legal sanction gives rise
to the law as a unique normative system.

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Tony Lawson claims that contemporary economic system is such a deductive
system.101 According to its positivistic version the legal system is another kind
of normative set of axioms, rules and principles. The normative nature of the
economic model is parallel to the notion of a legal one but on the normative level,
both systems do not interfere.
Karl Marx and Friedrich Engels
Both, Karl Marx and Friedrich Engels are considered to be the founders of
the greatest social and political movement. This movement began in the 19th
century and flourished in the 20th century as a political philosophy in Eastern
Europe which is the erstwhile Soviet Union and influenced all the decolonised
colonies of the world.
Karl Marx propounded the philosophy of Marxism. He is a German-born
economic theorist, social commentator, philosopher and revolutionary theorist.
Marxism relates to the themes devised by Karl Marx in his works later in his
life. He always had the view that society is merely ‘superstructural’, which
reflected the economic base of the society, the class struggle within that society
and the interests of the ruling classes.
Marxist philosophy on jurisprudence posits that legal relations are determined by
the economic base of particular kinds of society and modes of production. He
considers law as an instrument of class oppression that mostly benefits the ruling
class while taking away the opportunities from the working or the suppressed
class. All this has lead to the belief that capitalism is a very exploitative form of
economy. The system where the working class is oppressed and taken undue
advantage by the ruling class.
Marx’s view of state and law was co-terminus with the understanding of society
and social process. Marx synthesised and combined each and every philosophical
thought from Aristotle to Hegel. The understanding of the society from the
sociological point of view led Marx to pronounce that the desired system should
be a Communist Society based on rational planning, co-operative production and
equality of distribution and most importantly, liberated from all forms of political
and bureaucratic hierarchy.
He stated the money of the state as a Bourgeois concept. He believed that the
proletariat has a historical mission of emancipating society as a whole. For him,
the law seemed to be nothing more than a function of the economy without any
independent existence.
Following are his classification of society into various classes:

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 1. The Capitalists.
2. The Wage Labourers.
3. The landowners.
He said that the conflict between various classes of society will eventually have
to be resolved. The resolution of the conflict will take place in the shape of a
Proletarian revolution. Once this revolution takes place, it will seize the power of
the state and transform the means of production in the first instance into State
property. He said that the Communist society will have to develop and emerge
from a capitalist society and in respects, it is bound to carry with it some marks
of capitalist society.
Karl Renner
Karl Renner is an Austrian politician, also known by the name of “Father of the
Republic”. He led the first government of German-Austria and the First Austrian
Republic in 1919 and 1920 and was once again decisive in establishing the
present Second Republic after the fall of Nazi Germany in 1945, becoming its
first President after World War II (and fourth overall).
He authored “The institutions of private law and their social functions”. He
believed that the Socialists and Marxists have failed to understand that new
society as such societies have pre-formed in the womb of the old and that is
equally true for the law as well. According to him, the process of change from
one given order to another is automatic.
He had a view that the concept of property in terms of Marx did not remain the
same in contemporary times. According to him, it was time to rephrase the
concept developed by Karl Marx. He propounded that the property whether in
socialism and capitalism did not remain as a mere instrument of exploitation
rather, the natural forces of change have put property various restrictions upon
the property. For eg, the tenants, employees or consumers. However, he also said
that the power of property remains the same irrespective of the political character
of the state.

Q. American and Scandinavian Realism – Critical Legal Studies

Movement.

Legal realism (American Realism) was arguably the most important and
controversial theory of judging in the history. And in general as well, there were

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few intellectual developments in law that have been as influential, controversial,
and misunderstood. Its influence went far beyond as a theory of adjudication. As
one legal theorist notes, even contemporary legal positivism owes much of its
renewal to legal realism. Realism is a diverse school of thought and any attempts
to homogenize it will distort more than simplify. When it comes to judicial
decision-making, realists had two general theses.18 First, judges have a preferred
outcome of a case even before they turn to legal rules; that preferred outcome is
usually based on some non-legal grounds – conceptions of justice, attributes of
litigating parties (government, poor plaintiff, racial group, etc), ideology, public
policy preferences, judge’s personality, etc. Second, judges usually will be able
to find a justification in legal rules for their preferred outcome. This is possible
because the legal system is complex and often contradictory. Of course,
occasionally a judge will come across a preferred outcome that just “won’t write”,
but these are rare. Normally, however, judges will find some cases, statutes,
maxims, canons, authorities, principles, etc, that will justify their preferred
outcome.
Most accounts of how legal realism came to exist start with Holmes or the birth
of the movement in 1920s and 1930s. Yet, as some scholars showed, there were
plenty of realists in the US even before the birth of realism: when “the legal
realists arrived on the scene, realism about judging had circulated inside and
outside of legal circles loudly and often for at least two generations.” Francis
Lieber, an eminent American lawyer of the mid-nineteenth century, noted that
judicial decisions are rarely mechanistic; instead, experience and numerous other
factors influence the outcome significantly.
It is useless for judges to quote a score of cases from the digest to sustain almost
every sentence, when everyone knows that another score might be collected to
support the opposite ruling. The perverse habit of qualifying and distinguishing
has been carried so far that all fixed lines are obliterated, and a little ingenuity in
stating the facts of a case is enough to bring it under a rule that will warrant the
desired conclusion. ... [T]he most honest judge knows that the authorities with
which his opinions are garnished often have had very little to do with the decision
of the court - perhaps have only been looked up after that decision was reached
upon the general equities of the case. ... He writes, it may, a beautiful essay upon
the law of the case, but the real grounds of decision lie concealed under the
statement of facts with which it is prefaced. It is the power of stating the facts as
he himself views them which preserves the superficial consistency and certainty
of the law, and hides from carless eyes its utter lack of definiteness and precision.
Holmes, Cardozo, and other Predecessors of the Movement:

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Oliver Wendell Holme.
The birth of legal realism is largely credited to the jurist who probably would not
consider himself a realist – Oliver Wendell Holmes, Jr. Holmes famously wrote
that “the life of law has not been logic; it has been experience.” Holmes
essentially argued that changes in law (at least judge-made law) were not due to
logic or pre-existing law; instead, policy preferences or personal experiences of
judges mattered more.
Holmes also famously stated in his dissenting opinion that “general propositions
do not decide concrete cases”. Many commentators consider this statement as his
realist position that general rules of law will never decide actual cases. It seems,
however, that this may have been an exaggeration as Holmes himself believed
that specific legal propositions can determine how judges decide their cases. It is
probably fair to say that Holmes’ views were not iconoclastic by the later
standards. It might be also true that many of his ideas were voiced by a previous
generation of jurists. However, his prominence as a scholar and the Justice of the
US Supreme Court helped to spread his ideas in all legal circles.
Cardozo
Like Holmes, Cardozo was not only an outspoken legal commentator but also a
prominent judge. Thus, his position probably gave his views additional
credibility. Compared to later realists, Cardozo was far from a revolutionary
freethinker. His main treatise published in 1921 - The Nature of the Judicial
Process – shows that most of his views rather moderate. He observed that in most
cases, there are clear legal principles, which dictate the outcome. Yet, often a
clear legal answer does not exist; in such cases, Cardozo thought, the judge should
promote social ends; and here, Cardozo admitted, a judge may be tempted to
substitute his view for that of the community. Grant Gilmore observed that
“Cardozo’s hesitant confession that judges were, on rare occasions, more than
simple automata, that they made law instead of merely declaring it, was widely
regarded as a legal version of hard core pornography.” Gilmore probably
exaggerated Cardozo’s impact, but we should not make the opposite mistake of
underrating Cardozo’s impact.
Jerome Frank
Jerome Frank published his “Law and the Modern Mind”. If there ever was a
radical version of legal realism, then Jerome Frank was it. Like other realists,
Frank doubted judges’ ability to make decisions on the basis of general categories
or general rules. Like many other eminent realists, Frank himself was an eminent
federal judge. Frank thought that troubled psychological development is

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responsible for legal formalism. According to Frank, the judge’s preferred
outcome precedes the inquiry into legal rules: “Judicial judgments, like other
judgments, doubtless, in most cases are worked out backward from conclusion
tentatively reached”. Frank was also one of few realists who was preoccupied not
only with “legal rules realism”, but also with “fact finding realism” – a judge will
usually accept only that evidence which will support his or her preferred outcome:
“A judge, eager to give a decision which will square with his sense of what is fair,
but unwilling to break with the traditional rules, will often view the evidence in
such a way that the facts’ reported by him, combined with those traditional rules,
will justify the result which he announces”. Frank was also the only major realist
who thought that judge’s personality plays a more important role than legal rules.
Legal rules, for Frank, were in general not important. Furthermore, he considered
that rational element in law is an illusion. Frank argued that judicial outcomes
depend on many factors, most of which can be extra-legal: judge’s personality,
political preferences, mood, racial views, etc. On the other hand, Frank pointed
out that a judge, after arriving at the conclusion, can consult with the general rules
and principles to see if it is acceptable. So in a sense, Frank did not say that legal
rules do not matter; instead, his point was that they were not leading to the
decision, but they could provide guidance to a conscientious judge as a check-up.
Karl Llewellyn
Karl Llewellyn was arguably the most influential realist. He also presented the
version of legal realism that perhaps could lay claim for an established theory of
law and judging. Like other realists, Llewellyn scoffed at the idea that judging is
a rule-bound activity, where a judge proceeds downward from legal rules to the
outcome of the case
European Realism
Legal Realism, by and large, was an original school of thought. There were,
however, several attempts to promote similar view even before the movement. In
the late nineteenth century and to some extent in the early twentieth century
German Free Law School (Freirechsschule) expressed similar ideas. François
Gény, a famed French scholar, in his “Science and Technique in Positive Private
Law”, published from 1914 to 1924, also argued for a “free scientific research.”
Gény wanted to use sciences such as sociology, economics, linguistics, and
philosophy to discover origins of rules. Overall, it seems that this European Legal
Realism had little impact on European lawyers.
Scandinavian Realism

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Legal Realism (also known as American Legal Realism) should be distinguished
from its Scandinavian counterpart who had little concern for studies of judicial
decision-making and legal reasoning. Scandinavian realists like Alf Ross, Axel
Hagerstrom, and Karl Olivecrona thought that law should be analyzed through
the prism of social empirical sciences. Scandinavian realists wanted to explain
scientifically how the law changes human behavior. American Realists, while
also devoted to empirical research, were mostly preoccupied with the studies of
judging, legal reasoning, and judge-made law.
Novel Contributions of Legal Realists Some scholars argue that legal realism
brought nothing new to the understanding of judicial decision-making. For
example, some scholars noted that preceding legal generations made similar
observations about judging even before realists came to the scene. But almost all
major scientific discoveries or ideological movements were preceded by
“observations” similar to the new theories. Likewise, it is true that preceding
generations of lawyers made similar observations as the legal realists; however,
observations are not enough. It even might be that the genius of the realists was
not in the discovery of their doctrinal and philosophical outlooks, but in their
crystal articulation. Whatever it is, it is easy now to underrate their contribution.
One can only wonder then, if the movement brought nothing new, why the
awareness of the legal community and general public was so much different than
before?

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Unit-III:
Meaning and Definition of Law - The Nature and functions of Law - The Purpose
of Law- The Classification of Law- History of Natural Law – Greek Origins –
Medieval Period – Period of Renaissance – Transcendental idealism – Natural
Law and Social Contract Theories.
Q. Meaning and Definition of Law
The term “Law’ denotes different kinds of rules and Principles.
➢ Law is an instrument which regulates human conduct/behaviour.
➢ Law means Justice, Morality, Reason, Order, and Righteous from the view
point of the society.
➢ Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances
from point of view of legislature.
➢ Law means Rules of court, Decrees, Judgment, Orders of courts, and
Injunctions from the point of view of Judges.
Therefore, Law is a broader term which includes Acts, Statutes, Rules,
Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of
court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence,
Legal theory, etc.
In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu”
law collective Plural of “Lag” is layer, measure, stroke ‘Literally’ something laid
down or fixed.
Generally, the term law is used to mean three things:
➢ First it is used to mean “legal order”.
➢ Secondly, law means the whole body of legal Percept’s which exists in a
politically organized society.
➢ Thirdly, law is used to mean all official control in a politically organized
society.
Definitions
Some of the definitions given by Jurists in different Periods are categorized as
follows
Idealistic Definitions
Romans and other ancient Jurists defined law in its idealistic nature. Roman
Justinian’s defined law in the light of its idealistic nature.

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Salmond: According to Salmond “the law may be defined as the body of
principles recognized and applied by the state in the administration of Justice
John chipman Gray’s Definition of Law: According to Gray, “the Law of the
State or of any organized body of men is composed of the rules which the courts,
that is the judicial organ of the body lays down for the determination of legal
rights and duties.
Positivists definition
Austin’s definition of law: An English Jurist expounded the concept of analytical
positivism, making law as a command of sovereign backed by sanction. A law,
in the strict sense is a general command of the sovereign individual or the
sovereign body. Issued to those in subjectivity and enforced by the physical
power of the state. Law is aggregate of rules set by men politically superior or
sovereign to men as politically subject. A law is command which obliges a person
or persons to a course of conduct.
Holland’s definition of law : Law is a General rule of external human action
enforced by a political sovereign. Holland also measures or defines law with
preference to sovereign devoid of moral, ethical or ideal elements which are
foreign to law and Jurisprudence.
John Erskine definition of law : Law is the command of a sovereign, containing
a common rule of life for his subjects and obliging them to obedience.
Hans Kelsan’s definition of Law: According to Kelsan legal order is the
hierarchy of the norms, every norm derive its validity from the superior norm and
finally there is highest norm known as groundnorm
H.L.A.Hart : According to Hart Law is the combination of primary rules of
obligations and secondary rules of recognition.
Historical school of Law
Savigin’s definition of law: Savigny says that law is not the product of direct
legislation but is due to the silent growth of custom or the outcome of
unformulated public or Professional opinion. He says that law not as a body of
rules set by determinate authority but as rules consist partly of social habitat and
partly of experience. He says law is found in the society, it is found in custom.
Sociological school of law
Ihering’s Definition of law : Ihering defines law as ‘the form of Guarantee of
the conditions of life of society, assured by state’s power of constrain. He says

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law is a means to an end and end of the law is to serve its purpose which is social
not individual.
Dean Roscoe Pound’s definition of law : Pound defines law as a social
institution to satisfy social wants. He says law is a social engineering, which
means that law is a instrument to balance between the competing or conflicting
interests.
Dias’s Definition of law : Law consists largely of “ought” (normative)
Propositions prescribing how people ought to behave the “ought” of laws to be
variously dictated by social, moral, economic, political and other purposes
Realist definition of law
Holmes J. The realist considered the law to be a part of judicial process. He says,
“that the prophesies of what the courts will do, in fact and nothing more
pretentions, are what I mean by law
Importance of Law
➢ Maintenance of law and order in society;
➢ To maintain status quo in society;
➢ To ensure maximum freedom of individuals; and
➢ To satisfy the basic needs of the people.
➢ Maintenance of law and order in society
➢ Protection of Fundamental Rights
➢ Control of Political System
➢ The regulations of economic activity
➢ Regulations of human relations
➢ International relations, etc.,

Q. The Nature and functions of Law

After discussing and understanding the meaning of the term 'law', it is a natural
question to ask the following questions: Why is there law in the society? What is
the need for law? Can a society be governed smoothly without any kind of law?
What is the function and purpose of law? etc. Functions and purpose of law have
been changing with time and place. They depend on the nature of the state.
However, at present in a welfare and democratic state, there are several important

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functions of law. It can be stated that law starts regulating the welfare and other
aspects of human life, from the moment a child is conceived in her mother's
womb. In fact, the State interacts with and protects its citizens throughout their
lives, with the help of law.
Some of the major functions and purposes of law are listed below:
i. To deliver justice.
ii. To provide equality and uniformity.
iii. To maintain impartiality.
iv. To maintain law and order.
v. To maintain social control.
vi. To resolve conflicts.
vii. To bring orderly change through law and social reform.

Q. The Classification of Law

Law may be broadly classified into two types. Classification of Laws varies from
time to time.
1. International Laws
2. National / Local Laws

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1) International Law and Municipal Law
(A) International Law :
(i) Public International Law
(ii) Private International Law
(B) Municipal Law or National Law :
(i) Public Law
(ii) Private Law

2) Criminal Law and Civil Law

3) Substantive Law and Procedural Law

1) International Law and Municipal Law

(A) International Law:

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 Law may be broadly divided into two classes International Law and
Municipal Law. The term International Law was coined for the first time by
Jeremy Bentham in 1780 International Law or Law of Nations deals with rules
for the governance of Sovereign States in their relation and conduct towards one
another. International Law is not only law but also a very important branch of
law. International law is divided into two classes Public International
Law and Private International Law.
(i) Public International Law:
Public International Law is the body of rules which govern the conduct
and relations of the States with each other.
(ii) Private International Law:
Private International Law, which is also known as 'Conflict of Laws' deals
with cases involving foreign element. In case of a dispute between Individual
citizen or State and foreign element, where there is a need to contact with the
foreign system of law, the Private International Law will apply.
(B) Municipal Law:
Municipal Law or Law of Nations is the Law applied within a State. It
can be Divided into two classes: Public law and Private Law.

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 (i) Public Law :
Public Law is that branch of Law, which determines and regulates the
organization and functioning of the State. It also determines the relation of the
State with its Subjects. It is Concerned with the State in its political and
Sovereign capacity.
Public law is divided into three classes: Constitutional Law, Administrative Law,
Criminal Law
(a) Constitutional Law :
The constitutional law determines the nature of the State and the
structure of the government. The constitutional law is superior law of the land. In
India and United States Constitutional Law is written but In England, it is
unwritten. The Modern Tendency is to have written constitutions.
(b) Administrative Law :

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 Administrative Law deals with the structure, powers, and
functions of the organization of administration.
(c) Criminal Law :
Criminal law is necessary for the maintenance of law and order
and peace within the state. Criminal law defines and prescribes punishments for
them. Criminal Law not only Prevents Crime but also punishes the offenders.
(ii) Private Law :
Private law protects the Rights of an Individual or groups of
individuals. It regulates and governs the relations of citizens with one another.
2) Criminal Law and Civil Law:
Criminal law or Law of Crimes is the branch of public Law. It deals with
offenses punishable by State and is enforced in the name of the State. Criminal
Law divided into Substantive law and Procedural Law.
Crime is public wrong. It is an offense against the public as a whole. There
is no satisfactory definition of the word 'crime'. According to Blackstone "Crime
is an act committed or committed in violation of a public law forbidding or
commanding it."
Civil law is concerned with the rights and duties of Individuals to one another and
provides a system of remedies. e.g. Law of Property, Law of Contract etc.
3) Substantive Law and Procedural Law
The substantive law (IPC, Contract Act, etc.,) deals with the rights and duties
of Individuals. It defines what facts go to constitute a right or liability. Procedural
law (CrPC, CPC) is one by which substantive law is applied to particular cases.
It provides the mechanism for implementation of the rules enshrined in the
substantive law.
Other ways of Classifications of Law:
Law may be classified in various different ways but the most important
classifications are as follows:
• Public Law and Private Law
• Criminal Law and Civil Law
• Substantive Law and Procedural Law
• Municipal Law and International Law

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 • Common Law and equity

Q. History of Natural Law – Greek Origins – Medieval Period – Period of

Renaissance
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

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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.
Evolution, Growth and Decline of Natural Law

The content of ‘Natural Law’ has varied from time to time according to the
purpose for which it has been used and the function it is required to perform to
suit the needs of the time and circumstances. Therefore, the evolution and
development of ‘Natural Law’ has been through various stages which may
broadly be studied under the following heads:

(1) Ancient Period

(2) Medieval Period

(3) Renaissance Period

(4) Modern period

Ancient Period

Heraclitus (530 – 470 B.C.)

The concept of Natural Law was developed by Greek philosophers around 4th
century B.C. Heraclitus was the first Greek philosopher who pointed at the three
main characteristic features of Law of Nature namely, (i) destiny, (ii) order and
(iii) reason. He stated that nature is not a scattered heap of things but there is a
definite relation between the things and a definite order and rhythm of events.
According to him, ‘reason’ is one of the essential elements of Natural Law.

Socrates (470 – 399 B.C.)

Socrates said that like Natural Physical Law there is a Natural or Moral Law.
‘Human Insight’ that a man has the capacity to distinguish between good and bad
and is able to appreciate the moral values. This human ‘insight’ is the basis to
judge the law. Socrates did not deny the authority of the Positive Law. According

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to him, it was rather the appeal of the ‘insight’ to obey it, and perhaps that was
why he preferred to drink poison in obedience to law than to run away from the
prison. He pleaded for the necessity of Natural Law for security and stability of
the country, which was one of the principal needs of the age. His pupil Plato
supported the same theory. But it is in Aristotle that we find a proper and logical
elaboration of the theory.

Aristotle (384 – 322 B.C.)

According to him, man is a part of nature in two ways; firstly, he is the part of the
creatures of the God, and secondly, he possesses insight and reason by which he
can shape his will. By his reason man can discover the eternal principle of justice.
The man’s reason being the part of the nature, the law discovered by reason is
called ‘natural justice’. Positive Law should try to incorporate in itself the rules
of ‘Natural Law’ but it should be obeyed even if it is devoid of the standard
principle of Natural Law. The Law should be reformed or amend rather than be
broken. He argued that slaves must accept their lot for slavery was a ‘natural’
institution. Aristotle suggested that the ideals of Natural Law have emanated from
the human conscience and not from human mind and, therefore, they are far more
valuable than the Positive Law which is an outcome of the human mind.
Natural Law in Roman System

The Romans did not confine their study of ‘Natural Law’ merely to theoretical
discussions but carried it further to give it a practical shape by transforming their
rigid legal system into cosmopolitan living law. In this way Natural Law
exercised a very constructive influence on the Roman law through division of
Roman Law into three distinct divisions namely ‘Jus civile’, ‘Jus gentium’ and
‘Jus naturale’. Civil law called ‘Jus civile’ was applicable only to Roman citizens
and the law which governed Roman citizens as well as the foreigners was known
as ‘Jus gentium’. It consisted of the universal legal principles which conformed
to Natural Law or Law of Reason. Later, both these were merged to be known as
‘Jus naturale’ as Roman citizenship was extended to everyone except a few
categories of persons. Roman lawyers did not bother themselves with the problem
of conflict between ‘Positive Law’ and ‘Natural Law’. Though there was a
general feeling that natural law being based on reason and conscience was
superior to Positive Law and therefore, in case of a conflict between the two, the
latter should be disregarded.

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Natural Law in India

Hindu legal system is perhaps the most ancient legal system of the world. They
developed a very logical and comprehensive body of law at very early times. A
sense of ‘Justice’ pervades the whole body of law. But the frequent changes in
the political system and government and numerous foreign invasions, one after
the other prevented its systematic and natural growth. Under the foreign rule no
proper attention could be paid to the study of this legal system. Many theories
and principles of it are still unknown, uninvestigated. Whether there was any
conception of ‘Natural Law’ or not, and if there was any, what was its authority
and its relation with ‘Positive Law’ are the questions which cannot be answered
with great certainty. However, some principles and provisions can be pointed out
in this respect. According to the Hindu view, Law owes its existence to God. Law
is given in ‘Shruti’ and ‘Smritis’. The king is simply to execute that law and he
himself is bound by it and if goes against this law he should be disobeyed. Puranas
are full of instances where the kings were dethroned and beheaded when they
went against the established law.
Medieval Period

Catholic philosophers and theologicians of the Middle Ages gave a new theory
of ‘Natural Law’. Though they too gave it theological basis, they departed from
the orthodoxy of early Christian Fathers. Their views are more logical and
systematic. Thomas Acquinas views may be taken as representative of the new
theory. His views about society are similar to that of Aristotle. Social organization
and state are natural phenomena. He defined law as ‘an ordinance of reason for
the common good made by him who has the care of the community and
promulgated’. St. Thomas Aquinas gave a fourfold classification of laws, namely,
(1) Law of God or external law, (2) Natural Law which is revealed through
“reason”, (3) Divine Law or the Law of Scriptures, (4) Human Laws which we
now called ‘Positive law’. Natural Law is a part of divine law. It is that part which
reveals itself in natural reason. Like his predecessors, St. Aquinas agreed that
Natural Law emanates from ‘reason’ and is applied by human beings to govern
their affairs and relations. This Human Law or ‘Positive Law’, therefore, must
remain within the limits of that of which it is a part. It means that Positive Law
must conform to the Law of the Scriptures. Positive Law is valid only to the extent
to which it is compatible with ‘Natural Law’ and thus in conformity with ‘Eternal

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Law’. He regarded Church as the authority to interpret Divine Law. Therefore, it
has the authority to give verdict upon the goodness of Positive Law also. Thomas
justified possession of individual property which was considered sinful by the
early Christian Fathers.
The Period of Renaissance

The period of renaissance in the history of development of Natural Law may also
be called the modern classical era which is marked by rationalism and emergence
of new ideas in different fields of knowledge.
Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. His view, in brief, is that
political society rests on a ‘social contract’. It is the duty of the sovereign to
safeguard the citizens because the former was given power only for that purpose.
The sovereign is bound by ‘Natural Law’. The Law of Nature is discoverable by
man’s ‘reason’. He departed from St. Thomas Aquinas scholastic concept of
Natural Law and ‘reason’ but on ‘right reason’, i.e. ‘self-supporting reason’ of
man. Now the question may arise: Should disobey the ruler who did not act in
conformity with principles of ‘Natural Law’? Grotius believed that howsoever
bad a ruler may be, it is the duty of the subjects to obey him. He has no right to
repudiate the agreement or to take away the power. Although there is apparent
inconsistency in the Natural Law propounded by Grotius because on the one
hand, he says that the ruler is bound by the ‘Natural Law’, and, on the other hand,
he contends that in no case the ruler should be disobeyed, but it appears that
Grotius’s main concern was stability of political order and maintenance of
international peace which was the need of the time. Hugo Grotius is rightly
considered as the founder of the modern International Law as he deduced a
number of principles which paved way for further growth of International Law.
He propagated equality of State and their freedom to regulate internal as well as
external relations.

Thomas Hobbes (1558 – 1679)

According to Hobbes, prior to ‘social contract’, man lived in chaotic condition of

constant fear. The life in the state of nature was “solitary, poor, nasty, brutish and
short”. Therefore, in order to secure self-protection and avoid misery and pain,

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men voluntarily entered into contract and surrendered their freedom to some
mightiest authority that could protect their lives and property. Thus Hobbes was
a supporter of absolute power of the ruler and subjects had no rights against the
sovereign. Though he makes a suggestion that the sovereign should be bound by
‘Natural Law’, it is not more than a moral obligation. It would thus be seen that
Hobbes used Natural Law theory to support absolute authority of the sovereign.
He advocated for an established order. During the Civil War in Britain, his theory
came to support the monarch. In fact, it stood for stable and secure government.
Individualism, materialism, utilitarianism and absolutism all are interwoven in
the theory of Hobbes.
John Locke (1632 – 1704)

According to Locke, the state of nature was a golden age, only the property was
insecure. It was for the purpose of protection of property that men entered into
the ‘social contract’. Man, under this contract, did not surrender all his rights but
only a part of them, namely, to maintain order and to enforce the law of nature.
His Natural Rights as the rights to life, liberty and property he retained with
himself. The purpose of government and law is to uphold and protect the Natural
Rights. So long as the government fulfils this purpose, the laws given by it are
valid and binding but when it ceases to do that, its laws have no validity and the
government may be overthrown. Locke pleaded for a constitutionally limited
government. The 19th century doctrine of ‘laissez faire’ was the result of
individual’s freedom in matters relating to economic activities which found
support in Locke’s theory. Unlike Hobbes who supported State authority, Locke
pleaded for the individual liberty.

Jean Rousseau (1712 – 1778)

Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated
by Hobbes and Locke, but it is merely a hypothetical conception. Prior to the so
called ‘social contract’, the life was happy and there was equality among men.
People united to preserve their rights of freedom and equality and for this purpose
they surrendered their rights not to a single individual, i.e. sovereign, but to the
community as a whole which Rousseau named as ‘general will’. Therefore, it is
the duty of every individual to obey the ‘general will’ because in doing so he
directly obeys his own will. The existence of the State is for the protection of
freedom and equality. The Sate and the laws made by it both are subject to
‘general will’ and if the government and laws do not conform to ‘general will’,

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they would be discarded. Rousseau favored people’s sovereignty. His ‘Natural
Law’ theory is confined to the freedom and equality of the individual. For him,
State, law, sovereignty, general will etc. are interchangeable terms.

Immanuel Kant (1724 – 1804)

The Natural Law philosophy and doctrine of social contract was further supported
by Kant and Fichte in 18th century. They emphasized that the basis of social
contract was ‘reason’ and it was not a historical fact. Kant drew a distinction
between Natural Rights and the Acquired Rights and recognized only the former
which were necessary for the freedom of individual. He favored separation of
powers and pointed out that function of the State should be to protect the law. He
propounded his famous theory of Categorical Imperative in his classic work
entitled Critique of Pure Reason.
Kant’s theory of Categorical Imperative was derived from Rousseau’s theory of
General Will. It embodies two principles:-

1. The Categorical Imperative expects a man to act in such a way that he is guided
by dictates of his own conscience. Thus it is nothing more than a human right of
self-determination.

2. The second principle expounded by Kant was the doctrine of ‘autonomy of the
will’ which means an action emanating from reason but it does mean the freedom
to do as one pleases.

In essence, Kant held that “an action is right only if it co-exists with each and
every man’s free will according to the universal law”. This he called as “the
principle of Innate Right”. The sole function of the state, according to him, is to
ensure observance of law.
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
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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 over-emphasized 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)

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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)

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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.

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Q. Transcendental idealism
Transcendental idealism, also called formalistic idealism, term applied to
the epistemology of the 18th-century German philosopher Immanuel Kant, who
held that the human self, or transcendental ego, constructs knowledge out of sense
impressions and from universal concepts called categories that it imposes upon
them. Kant’s transcendentalism is set in contrast to those of two of his
predecessors—the problematic idealism of René Descartes, who claimed that the
existence of matter can be doubted, and the dogmatic idealism of George
Berkeley, who flatly denied the existence of matter. Kant believed that ideas, the
raw matter of knowledge, must somehow be due to realities existing
independently of human minds; but he held that such things-in-themselves must
remain forever unknown. Human knowledge cannot reach to them because
knowledge can only arise in the course of synthesizing the ideas of sense.
Transcendental idealism has remained a significant strand in later philosophy,
being perpetuated in various forms of Kantian and Neo-Kantian movements of
thought.
Kant also distinguishes transcendental idealism from another position he calls
“empirical idealism”
Empirical idealism, as Kant here characterizes it, is the view that all we know
immediately (non-inferentially) is the existence of our own minds and our
temporally ordered mental states, while we can only infer the existence of objects
“outside” us in space. Since the inference from a known effect to an unknown
cause is always uncertain, the empirical idealist concludes we cannot know that
objects exist outside us in space. Kant typically distinguishes two varieties of
empirical idealism: dogmatic idealism, which claims that objects in space do not
exist, and problematic idealism, which claims that objects in space may exist, but
we cannot know whether they do.
Transcendental idealism is a form of empirical realism because it entails that we
have immediate (non-inferential) and certain knowledge of the existence of
objects in space merely through self-consciousness.

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Q. Natural Law and Social Contract Theories

Natural law is the moral theory of jurisprudence and often states that laws should
be on the basis of ethics and morals. This law also states that law should focus on
what is ‘correct’.
In addition, natural law was found by humans on their disposition of reasoning
and choosing between good and bad. Hence, it is said that this law plays a
significant role in establishing moral and ethical standards.
Natural law is a philosophy of law that focuses on the laws of nature.
Moreover, this school of jurisprudence represents the belief that there are laws
common to all societies. This is irrespective of whether they are written down or
can officially enact.
This school of thought tells us that law is both – rational and reasonable.
Moreover, natural law proposes that laws are more of a logical progression from
morals. Therefore, actions that are morally wrong will be against the law. But
also, actions that are morally right can’t truly and justly be against the law.
Natural law exists regardless of what laws are enacted.
In moral and political philosophy, the social contract is a theory or model that
originated during the Age of Enlightenment and usually concerns
the legitimacy of the authority of the state over the individual. Social contract
arguments typically posit that individuals have consented, either explicitly
or tacitly, to surrender some of their freedoms and submit to the authority (of the
ruler, or to the decision of a majority) in exchange for protection of their
remaining rights or maintenance of the social order. The relation between natural
and legal rights is often a topic of social contract theory. The term takes its name
from The Social Contract (French: Du contrat social ou Principes du droit
politique), a 1762 book by Jean-Jacques Rousseau that discussed this concept.
Although the antecedents of social contract theory are found in antiquity,
in Greek and Stoic philosophy and Roman and Canon Law, the heyday of the
social contract was the mid-17th to early 19th centuries, when it emerged as the
leading doctrine of political legitimacy.
social contract, in political philosophy, an actual or hypothetical compact, or
agreement, between the ruled or between the ruled and their rulers, defining the
rights and duties of each. In primeval times, according to the theory, individuals
were born into an anarchic state of nature, which was happy or unhappy

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according to the particular version of the theory. They then, by exercising
natural reason, formed a society (and a government) by means of a
social contract.
Although similar ideas can be traced to the Greek Sophists, social-contract
theories had their greatest currency in the 17th and 18th centuries and are
associated with the English philosophers Thomas Hobbes and John Locke and
the French philosopher Jean-Jacques Rousseau.
The social contract in Hobbes
According to Hobbes (Leviathan, 1651), the state of nature was one in which
there were no enforceable criteria of right and wrong. People took for themselves
all that they could, and human life was “solitary, poor, nasty, brutish and short.”
The state of nature was therefore a state of war, which could be ended only if
individuals agreed (in a social contract) to give their liberty into the hands of a
sovereign, on the sole condition that their lives were safeguarded by sovereign
power.
For Hobbes the authority of the sovereign is absolute, in the sense that no
authority is above the sovereign, whose will is law. That, however, does not mean
that the power of the sovereign is all-encompassing: subjects remain free to act
as they please in cases in which the sovereign is silent (in other words, when the
law does not address the action concerned). The social contract allows individuals
to leave the state of nature and enter civil society, but the former remains a threat
and returns as soon as governmental power collapses. Because the power of
Leviathan (the political state) is uncontested, however, its collapse is very
unlikely and occurs only when it is no longer able to protect its subjects.
The social contract in Locke
Locke (in the second of the Two Treatises of Government, 1690) differed from
Hobbes insofar as he conceived of the state of nature not as a condition of
complete license but rather as a state in which humans, though free, equal, and
independent, are obliged under the law of nature to respect each other’s rights to
life, liberty, and property. Individuals nevertheless agree to form a
commonwealth (and thereby to leave the state of nature) in order to institute an
impartial power capable of arbitrating disputes and redressing injuries.
Accordingly, Locke held that the obligation to obey civil government under the
social contract was conditional upon the protection of the natural rights of each
person, including the right to private property. Sovereigns who violated these
terms could be justifiably overthrown.
The social contract in Rousseau
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Rousseau, in Discours sur l’origine de l’inegalité (1755; Discourse on the Origin
of Inequality), held that in the state of nature humans were solitary but also
healthy, happy, good, and free. What Rousseau called “nascent societies” were
formed when human began to live together as families and neighbours; that
development, however, gave rise to negative and destructive passions such as
jealousy and pride, which in turn fostered social inequality and human vice. The
introduction of private property marked a further step toward inequality, since it
made law and government necessary as a means of protecting it. Rousseau
lamented the “fatal” concept of property and the “horrors” that resulted from the
departure from a condition in which the earth belonged to no one.
Civil society, as Rousseau described it in the Discourse, came into being to serve
two purposes: to provide peace for everyone and to ensure the right to property
for anyone lucky enough to have possessions. It was thus of some advantage to
everyone, but mostly to the advantage of the rich, since it transformed their de
facto ownership into rightful ownership and kept the poor dispossessed. It was,
indeed, a somewhat fraudulent social contract, since the poor got so much less
out of it than did the rich.
But Rousseau also believed in the possibility of a genuine social contract, one in
which people would receive in exchange for their independence a better kind of
freedom, namely true political, or republican, liberty. As described in Du Contrat
social (1762; The Social Contract), such liberty is to be found in obedience to
what Rousseau called the volonté générale (“general will”)—a collectively held
will that aims at the common good or the common interest.
Rousseau’s conception of citizenship was much more organic and much less
individualistic than Locke’s. The surrender of independence, or natural liberty,
for political liberty meant that all individual rights, including property rights, are
subordinate to the general will. For Rousseau the state is a moral person whose
life is the union of its members, whose laws are acts of the general will, and whose
end is the liberty and equality of its citizens. It follows that when any government
usurps the power of the people, the social contract is broken; and not only are the
citizens no longer compelled to obey, but they also have an obligation to rebel.

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Unit-IV:
Sources of Law-Legal and Historical sources- Custom as Source of Law-
Definition of custom- General and Local Custom and Prescriptions - Precedent
as Source of Law-Definition of Precedent, Kinds of Precedent- Doctrine of Stare
Decisions- Original and Declaratory Precedent- Authoritative and Persuasive
Precedents- Legislation as Source of Law- Definition of Legislation -
Classification of Legislation – Supreme and Subordinate Legislation – Direct and
Indirect Legislation.
Q. Sources of Law-Legal and Historical sources
To have a clear and complete understanding of law, it is essential to understand
the sources of law. Sources of law mean the sources from where law or the
binding rules of human conduct originate. In other words, law is derived from
sources. Jurists have different views on the origin and sources of law, as they
have regarding the definition of law. As the term 'law' has several meanings, legal
experts approach the sources of law from various angles.
For instance, Austin considers sovereign as the source of law while Savigny and
Henry Maine consider custom as the most important source of law. Natural law
school considers nature and human reason as the source of law, while theologians
consider the religious scripts as sources of law. Although there are various claims
and counter claims regarding the sources of law, it is true that in almost all
societies, law has been derived from similar sources.
The term "Sources of law" means the origin from which rules of human conduct
came into existence. The term has been used in different senses by different
writers and different views have been expressed from time to time.

1) Definition :

According to C. K. Allen " agencies through which the rules of conduct

acquire the character of law by becoming definite, uniform and compulsory".

According to Keeton Source means "the material, out of which is

eventually fashioned, through the activity of judges".

Oppenheim defines source of law as " the name for a historical fact out
of which the rules of conduct came into existence and acquire legal force".

2) Kinds of Sources of law:

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 Sources of law may be classified into - Formal Sources and Material
Sources

i) Formal sources:

The formal sources law also be called the Actual or ultimate Sources of
law. According to Sir John Salmond, that "sources " from which a rule of law
derives its force and validity.
ii) Material Sources:

The material sources of law are those which gives the matter or content of
a principal of law. As the word material suggests, material sources deal with the
substance, elements or constituent material of law. Material sources of law tells
us what is contained in the law.

According to Salmond, material sources are of two kinds -

• Historical Sources and

• Legal Sources

Historical Sources:

Historical Sources of law are those which expresses the history or

evolution for the principal of law and the circumstances through which it attained
the form of law. These Sources are unauthoritative, they are Sources in fact but
they have no legal recognition. And have only persuasive value. Historical
Sources may become legal if they are recognised by law.

Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a

Historical Source
Legal Sources:

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 Legal Sources are those Sources which are the instruments or organs of
the State by which legal rules are created.

Salmond has classified the Legal Sources of English Law into four divisions
are as follows:

a) Legislation

b) Precedent

c) Custom

d) Agreement

A) Legislation :

which gives rise to enacted law. According to Salmond Legislation is that

source of law which consists in the declaration of legal rules by a competent
authority.

B) Precedent :

Precedents signify past judicial decisions. Judicial Precedents are an

important source of law. They have enjoyed high authority at all times and in all
countries.

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C) Custom :

Custom is also an important source of law. Custom signifies the habits and
practices of the people. Custom gives rise to customary law.

According to Salmond, Custom is the embodiment of those principles which

have commended themselves to the national conscience as principal of justice
and public utility.

D) Agreement :

An Agreement is the state of being in accord of conformity such as to agree

to the details of a transaction. An agreement may be defined as the expression by
two or more persons communicated to each other of a common intention to affect
the legal relations.

Q. Custom as Source of Law- Definition of custom- General and Local

Custom and Prescriptions
A custom, to be valid, must be observed continuously for a very long time without
any interruption. Further, a practice must be supported not only for a very long
time, but it must also be supported by the opinion of the general public and
morality. However, every custom need not become law. For example, the Hindu
Marriages Act, 1955 prohibits marriages which are within the prohibited degrees
of relationship. However, the Act still permits marriages within the prohibited
degree of relationship if there is a proven custom within a certain community.
Custom can simply be explained as those long established practices or unwritten
rules which have acquired binding or obligatory character. In ancient societies,
custom was considered as one of the most important sources of law; In fact it was
considered as the real source of law. With the passage of time and the advent of
modern civilization, the importance of custom as a source of law diminished and
other sources such as judicial precedents and legislation gained importance.

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There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is
law. Jurists such as Austin opposed custom as law because it did not originate
from the will of the sovereign. Jurists like Savigny consider custom as the main
source of law. According to him the real source of law is the will of the people
and not the will of the sovereign. The will of the people has always been reflected
in the custom and traditions of the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most importantrite
of a Hindu marriage ceremony. The word, Saptapadi means "Seven steps". After
tying the Mangalsutra, the newly-wed couple take seven steps around the holy
fire, which is called Saptapadi. The customary practice of Saptapadi has been
incorporated in Section 7 of the Hindu Marriage Act, 1955.
Kinds of Customs
Customs can be broadly divided into two classes:
i. Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of
public opinion.
ii. Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs
may further be divided into the following categories:
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it
possesses the force of law. It is recognized and enforced by the courts. Legal
custom may be further classified into the following two types:
General Customs: These types of customs prevail throughout the territory
of the State.
Local Customs: Local customs are applicable to a part of the State, or a
particular region of the country

(b) Conventional Customs: Conventional customs are binding on the parties to

an agreement. When two or more persons enter into an agreement related to a
trade, it is presumed in law that they make the contract in accordance with
established convention or usage of that trade. For instance an agreement between
landlord and tenant regarding the payment of the rent will be governed by
convention prevailing in this regard.

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Essentials of a valid custom
All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law.
These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for
a long time, even beyond human memory. In England, the year 1189 i.e. the reign
of Richard I King of England has been fixed for the determination of validity of
customs. However, in India there is no such time limit for deciding the antiquity
of the customs. The only condition is that those should have been in practice since
time immemorial.
Continuous: A custom to be valid should have been in continuous practice. It
must have been enjoyed without any kind of interruption. Long intervals and
disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the
knowledge of the community. It should not have been practised secretly. Acustom
must be proved to be a matter of right. A mere doubtful exercise of a right is not
sufficient to a claim as a valid custom.
Reasonableness: A custom must conform to the norms of justice and public
utility. A custom, to be valid, should be based on rationality and reason. If a
custom is likely to cause more inconvenience and mischief than convenience,
such a custom will not be valid.
Morality: A custom which is immoral or opposed to public policy cannot be a
valid custom. Courts have declared many customs as invalid as they were
practised for immoral purpose or were opposed to public policy. Bombay High
Court in the case of Mathura Naikon v. Esu Naekin, ((1880) ILR 4 Bom 545) held
that, the custom of adopting a girl for immoral purposes is illegal.
Status with regard to: In any modern State, when a new legislation is enacted,
it is generally preferred to the custom. Therefore, it is imperative that a custom
must not be opposed or contrary to legislation. Many customs have been
abrogated by laws enacted by the legislative bodies in India. For instance, the
customary practice of child marriage has been declared as an offence. Similarly,
adoption laws have been changed by legislation in India.
Importance of custom as a source of law in India

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Custom was the most important source of law in ancient India. Even the British
initially adopted the policy of non-intervention in personal matters of Hindus and
Muslims. The British courts, in particular, the Privy Council, in cases such as
Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC 59) observed and
underlined the importance of custom in moulding the law. At the same time, it is
important to note that customs were not uniform or universal throughout the
country. Some regions of the country had their own customs and usages. These
variances in customs were also considered a hindrance in the integration of
various communities of the country. During our freedom struggle, there were
parallel movements for social reform in the country. Social reformers raised many
issues related to women and children such as widow re-marriage and child
marriage. After independence and the enactment of the Constitution, the Indian
Parliament took many steps and abrogated many old customary practices by some
progressive legislation. Hindu personal laws were codified and the Hindu
Marriage Act, 1955 and the Hindu Adoption Act, 1955, were adopted. The
Constitution of India provided a positive environment for these social changes.
After independence, the importance of custom has definitely diminished as a
source of law and judicial precedent, and legislation has gained a more significant
place. A large part of Indian law, especially personal laws, however, are still
governed by the customs.
Q. Precedent as Source of Law-Definition of Precedent, Kinds of Precedent
Precedents signify past judicial decisions. Judicial Precedents are an important
source of law. They have enjoyed high authority at all times and in all countries.
Judicial Precedents are an important source of law. They have enjoyed High
authority in all times and in all countries.
There are four kinds of Precedent it may be classified under the following
heads -
1) Authoritative Precedents
a) Absolute Precedents
b) Conditional Precedents
2) Persuasive Precedents
3) Original Precedents
4) Declaratory Precedents
1) Authoritative Precedents

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 According to Salmond, an authoritative Precedent is one which Judges
must follow whether they approve it or not. Authoritative Precedents are the legal
sources of law. Authoritative Precedents establish law in pursuance of definite
rule of law which confers upon them that effect. The authoritative Precedents
must be followed by the Judges whether they approve of them or not.
Authoritative Precedents are of two kinds, Absolute and Conditional.
A) Absolute:
In case of absolutely authoritative Precedents, they have to be followed
by the Judges even if they do not approve of them. They are entitled to implicit
obedience.
B) Conditional:
In the case of authoritative Precedents having a Conditional authority, the
Court can disregard them under certain circumstances. Ordinarily they are
binding but under special circumstances, they can be disregarded.
2) Persuasive Precedents –
A persuasive Precedent is one which the Judges are under no obligation
to follow but which they will take into consideration and to which they will attach
great weight as it seems to them to deserve. Persuasive Precedents are merely
Historical. If Persuasive Precedents succeed in establishing law at all, they do
indirectly by serving as the Historical ground of some later authoritative
Precedent. They do not have any legal force or effect in themselves. The
Persuasive Precedents can merely persuade the Judge but it is up to the judge to
follow them or not.
3) Original Precedents –
According to Salmond , an original Precedent is one which creates and
applies a new rule. In the case of Original Precedent, it is law for the future
because it is now applied. The number of original Precedents is small but their
importance us very great, they alone develop the law of the country. They serve
as good evidence of law for the future.
4) Declaratory Precedents -
According to Salmond, a declaratory precedent is one which is merely the
application of an already existing rule of law. In the case of declaratory precedent,
the rule is applied because it is already law. In case of advanced countries,
declaratory Precedents are more numerous. A declaratory precedent is good as a
source of law as an original Precedent.
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 The legal authority of both is exactly the same. An original
Precedent is an authority and source of law but both original and declaratory
Precedents have their own value.
Doctrine of 'Precedent' in India
"Precedent literally means a rule followed or a principle applied previously by a
competent authority under similar facts and circumstances". If a previous
decision by a court is taken as a basis or source for deciding the case under similar
facts and circumstances, It is called judicial precedent. In general sense,
precedence means 'some set pattern guiding the future conduct. The fundamental
principle behind the precedent is that like cases should be treated alike. In judicial
Field it means the guidance or authority of past decision for future cases. The
importance of precedent is precedent is recognized by both ancient law and
modern law.
In every country , there is one Supreme authority having exclusive power of
judicial authority . In India the Supreme Court having such authority. The law
declared by the Supreme Court is binding upon all the other Courts of India
including High Courts under Article 141 of the Indian Constitution. High Court
is the Highest tribunal of the State. The decision of High Court are Binding on all
the Subordinate Courts.
Meaning and Definition :
"Precedent, Which are enforceable by law are called judicial precedents."
According to Oxford Dictionary 'Precedent means " A previous instance or case
which is or may be taken as an example of rule for subsequent cases" . (Or by
which some similar act or circumstances may be supported or justified )
a) Bentham : According to Bentham 'Precedents are Judge made laws.
b) Gray : According to Gray , " A precedent covers everything said or done which
furnished a rule for subsequent practice.
c) Keeton : In the words of Keeton ' A Judicial Precedent is a judicial decision to
which authority has in some measure been attached
1) Ancient India -
In ancient India we find very little trace of the theory of Precedent. The
judicial cases in those days were not very complicated in nature, nor were the
laws. The ancient judge was not, therefore expected to lay down any new points
or novel dicta. In the medieval period also the doctrine of Precedent was not in
vogue. It is only after the British rule was established that the theory of Precedent

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started taking shape and through the passage of time it acquired great
significance.
2) Government of India Act 1935 -
Under the Government of India Act 1935, a Federal Court was established
in India, Section 212 of the Government of India Act :
"The law declared by the Federal Court and by any judgement of the Privy
Council shall, so far as applicable, be recognized as binding on and shall be
followed by all Courts in British India, and so far as respects the application and
interpretation of this Act or any order in Council there under any matter with
respect to which the federal legislature has power to make laws in relation to the
State, in any Federal state"
Thus, the decisions of the Federal Court were made binding on all the subordinate
Courts in India. The Privy Council, however, was to be the supreme judicial
authority. and it was not bound by its own decisions.
3) Attainment of Independence -
After attainment of Independence, the Privy Council no longer remained
the supreme appellate Court for the Indians and the Federal Court was abolished.
The Constitution of India established the Supreme Court as the final appellate
Court. In the States there are High Courts and in the district there are district
Courts. In civil matters, the court of first instance is the Munsif's Court and in
criminal matters that of the Magistrate.
4) High Courts -
Judgements of the particular High Court are binding on all subordinate to
it. For the lower Courts within the jurisdiction of another High Court, the
judgement of another High court have only a persuasive value. In case of a
conflict between the decisions of two High Courts, the lower court will follow
that pronounced by the High court which controls it.
In the high Court, the smallest Bench consists of a single Judge. A Bench
of two Judges is called a Division bench and one compressing three or more
Judges is called a Full Bench. The decision of a larger Bench is binding on a
smaller Bench. Whereas a Bench has no mandate over another Bench of equal
authority. But consideration of judicial propriety and docurum demand that
judges of co-ordinate jurisdiction in a High Court should not overrule one
another's decisions. The usual procedure in case of difference of opinion with an
earlier decision of the same Court is to refer the question to a larger Bench.

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 The High Courts inter se possess equal authority. In actual practice however,
judgement of other High Courts are diligently traced and cited in judgements.
Full Bench decision of other High Courts are looked upon with great reverence.
The decision of the erstwhile Federal Court are binding on the High Courts only
so far as they do not clash with those of the Supreme Court.
Article 225 of the constitution of India says :
"Subject to the provisions of this Constitution and to the provision
of anus law of the appropriate legislature made by virtue of the powers conferred
on that legislature by this Constitution, the jurisdiction of, and the law
administered in , any existing High Court...Shall be the same as immediately
before the commencement of this article also refer to case law. Therefore, the
pronouncements of the pre-Constitution Privy Council shall be binding on the
High Courts unless they are in conflict with the rulings of the Supreme Court. If
the Supreme Court overrides a pre-Constitution Privy Council decision, it would
lost all force. In case of a conflict between a judgment of the pre-Constitution
Privy Council and that of the federal court, the former will prevail.
The Supreme Court is the highest judicial tribunal in India. The law
declared by it shall be binding on all Courts in India, excluding however the
Supreme Court itself. The Supreme Court is not bound by its own decisions, or
by those of the Privy Council or federal court.
5) Power of Supreme court under Article 141 of the Constitution -
The authority of the Supreme Court over all other Courts in India has been
given expression in Article 141.
It says that : "The law declared by the Supreme Court shall be binding on all the
Courts within the territory of India " The term 'law declared' has been interpreted
not only to be ratio decidendi of a decision which has been accorded a binding
force, but also to include and obiter dictum, provided it is a point raised and
argued
Q. Doctrine of Stare Decisions- Original and Declaratory Precedent-
Authoritative and Persuasive Precedents
‘Stare decisis’ means ‘to stand by decided cases’. Wh have hierarchy of courts.
The Supreme Court is at the top of pyramid. It decides cases with a seal of finality.
The decision is an authority for what it actually decides. What is of essence in a
decision is it ratio, and not every observation found therein,l nor what logically
flows from the various observations made in the judgment. The enunciation of

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the reason or principle on which a question before a court has been decided is
alone binding as a precedent
The expression 'Ratio Decidendi' literally means " rule of law or Ruling or
knowing the law". When the highest Court(Apex Court) of judicature in a
country formulate/ makes a rule, while deciding a case basing on that rule, that
case is accepted as a valid Precedent. The apex court furnishes the various reasons
on which the decision was given in that particular case. Such rule or ruling is
called 'ratio decidendi'.
In other words, ratio decidendi is a principal of law made by the judge to decide
the problem. Obiter dicta are observations made by the Judge, which are not
essential for reaching the decision. when a decision is said to have binding force
in subsequent cases, it does not mean to say that the whole decision is binding.
Those statements, in previous decision, which constitute the ratio decidendi are
binding. While obiter dicta has no binding force.
'Ratio Decidendi' means "the reason of the decisions", which not
only binds parties but also forms as law to the future generations. The Other
meanings are 'the rule of law which others regard as being of binding authority.
Obiter dicta, on the other hand means 'dictums' given by the way, and binding
only on the parties, and do not amount to law and hence not binding on future
generations. However, there are exceptions to this rule that even 'obiter dicta' of
the Supreme Court are having binding force as law.
For the purpose of application of 'Ratio decidendi', the facts of two
cases previous and present, must be identical, material and relevant. Otherwise,
ratio decidendi is not applicable in the subsequent case. It is called distinguishing
the case.

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Types of Judicial Precedent
1. Declaratory and Original Precedents
As John William Salmon explained, a declaratory precedent is one where there is
only application of an already existing rule in a legal matter.
Whereas, an original precedent is one where a new law is created and applied in
a legal matter. Original precedents are responsible for the creation of new laws.
2. Persuasive Precedents
A persuasive precedent is a type of precedent where the judge is not required to
follow the precedent in a legal matter but will take the precedent heavily into
consideration.
So a persuasive precedent is not a direct source of law but is considered a
historical source of law. In India, the decisions of one high court can act as
persuasive precedents in other high courts.
3. Absolutely Authoritative Precedents
In an absolutely authoritative precedent, the judges have to compulsorily follow
the judicial decision of the precedent in a case of law.

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In other words, even if the judge finds the precedent to be a wrong judgment, he
is legally bound to give the same judicial decision.
For e.g. – Every court in India is absolutely bound by decisions of courts superior
to itself because of hierarchy.
4. Conditionally Authoritative Precedents
A conditionally authoritative precedent is one where generally the precedent is
absolutely authoritative but in certain special circumstances, like a supreme court
decision, it can be disregarded. The court can disregard the decision if it is a
wrong decision, or goes against the law and reason.

Q. Legislation as Source of Law- Definition of Legislation - Classification of

Legislation – Supreme and Subordinate Legislation – Direct and Indirect
Legislation.
In modern times, legislation is considered as the most important source of law.
The term 'legislation' is derived from the Latin word legis which means 'law' and
latum which means "to make" or "set". Therefore, the word 'legislation' means
the 'making of law'. The importance of legislation as a source of law can be
measured from the fact that it is backed by the authority of the sovereign, and it
is directly enacted and recognised by the State. The expression 'legislation' has
been used in various senses. It includes every method of law-making. In the strict
sense it means laws enacted by the sovereign or any other person or institution
authorised by him.

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The kinds of legislation can be explained as follows:
(i) Supreme Legislation:
When the laws are directly enacted by the sovereign, it is considered as supreme
legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the British
Parliament fall in this category, as the British Parliament is considered as
sovereign. The law enacted by the Indian Parliament also falls in the same
category. However in India, powers of the Parliament are regulated and controlled
by the Constitution, through the laws enacted by it are not under the control of
any other legislative body.
(ii) Subordinate Legislation:
Subordinate legislation is a legislation which is made by any authority which is
subordinate to the supreme or sovereign authority. It is enacted under the
delegated authority of the sovereign. The origin, validity, existence and
continuance of such legislation totally depends on the will of the sovereign
authority. Subordinate legislation further can be classified into the following
types:-
(a) Autonomous Law: When a group of individuals recognized or incorporated
under the law as an autonomous body, is conferred with the power to make rules
and regulation, the laws made by such body fall under autonomous law. For
instance, laws made by the bodies like Universities, incorporated companies etc.
fall in this category of legislation.
(b) Judicial Rules: In some countries, judiciary is conferred with the power to
make rules for their administrative procedures. For instance, under the
Constitution of India, the Supreme Court and High Courts have been conferred
with such kinds of power to regulate procedure and administration.
(c) Local laws: In some countries, local bodies are recognized and conferred with
the law-making powers. They are entitled to make bye-laws in their respective
jurisdictions. In India, local bodies like Panchayats and Municipal Corporations
have been recognized by the Constitution through the 73rd and 74th
Constitutional amendments. The rules and bye-laws enacted by them are
examples of local laws.
(d) Colonial Law: Laws made by colonial countries for their colonies or the
countries controlled by them are known as colonial laws. For a long time, India
was governed by the laws passed by the British Parliament. However, as most
countries of the world have gained independence from the colonial powers, this

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legislation is losing its importance and may not be recognized as a kind of
legislation.
(e) Laws made by the Executive: Laws are supposed to be enacted by the
sovereign and the sovereignty may be vested in one authority or it may be
distributed among the various organs of the State. In most of the modern States,
sovereignty is generally divided among the three organs of the State. The three
organs of the State namely legislature, executive and judiciary are vested with
three different functions. The prime responsibility of law-making vests with the
legislature, while the executive is vested with the responsibility to implement the
laws enacted by the legislature. However, the legislature delegates some of its
law-making powers to executive organs which are also termed delegated
legislation.
Delegated legislation is also a class of subordinate legislation. In welfare and
modern states, the amount of legislation has increased manifold and it is not
possible for legislative bodies to go through all the details of law. Therefore, it
deals with only a fundamental part of the legislation and wide discretion has been
given to the executive to fill the gaps. This increasing tendency of delegated
legislation has been criticized. However, delegated legislation is resorted to, on
account of reasons like paucity of time, technicalities of law and emergency.
Therefore, delegated legislation is sometimes considered as a necessary evil.
Delegated legislation is generally a type of law made by the executive authority
as per the powers conferred to them by the primary authority in order to execute,
implement and administer the requirements of the primary authority. It can be
said that it is the law made by any person or authority under the power of
parliament. It is also known as subordinate legislation in administrative law. It
allows the bodies beneath the primary authority or legislature to make laws
according to the requirement. Through an act of Parliament, Parliament has full
authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline
of the purpose for which it is created. The important object of this is that any
legislation by such delegation should be according to the purposes as laid down
in the act.
The main feature is that it allows the state government to amend the laws if there
is any need without delaying for the new act to be passed by the Parliament. If
there is any requirement then sanctions can also be altered by the delegated
legislation as the technology changes. It is believed that when such authority is
delegated by the Parliament to any person or authority it enables such person or
the authority to provide more detail to the act of the Parliament.

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For example, the local authority has power conferred by the superior one to make
or amend laws according to the requirement of their respective areas. The
delegated legislation plays a very important role as the number of them are more
than the acts of the Parliament. It has the same legal standing as the act of
Parliament from which it is created.
There are three forms of delegated legislation i.e., statutory instrument, orders in
council and by-laws.
Statutory instruments
They are the one which is formed by the government. For example – a parent act
is an act which permits the parliament for making the law. Orders in the council
are generally made by the government when there is a need and it can affect the
public at large as well as an individual.
By-Laws
They are created by the local authority which is approved by the Central
Government. There are many reasons for the delegation of the legislature. The
parliament does not have that much time to deliberate and debate about every
topic. Therefore, delegated legislation helps in making laws rapidly than the
Parliament and the procedure of the Parliament is also very slow as the bills for
every law needs to pass from every stage. Further, it is also believed that the
Member of Parliament does not possess the technical ability which is required to
make law.
For example – making any law regarding taxation requires knowledge as well as
experience which can be done by the person who is professional in that field. In
the case of welfare purpose, the local authority can understand the needs of the
people in his area more effectively than others. The democratic bodies have
many important powers for the delegated legislation which can be easily used for
updating the legislation according to the requirement which leads to social
welfare.
But there should be control over delegated legislation. Delegated legislation is
controlled by the Parliament and the Judiciary. Parliament has the overall control
over the delegated legislation as it takes account with the statutory committees
which make law through bills. The main object of parliamentary control is to look
that there is no abuse or unnecessary use of the powers given to rulemaking
authorities.
Cases

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In the case of Narendra Kumar v. Union of India, it was held by the Supreme
Court that the provision under Section 3(5) of the Essential Commodities Act,
1955, which explains that any rules framed under the Act must be presented
before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous
Control Orders, 1958 has no effect until it is presented in the Parliament.
There are a number of rules in the area of judicial control over the delegation of
legislation which is laid down by the judiciary.
In Chandra Bhan’s case, it was held that the delegation of legislation must be
reasonable and should not suffer from any unreasonableness.
Delegated legislation should protect the rule of law and there should be no
arbitrariness. Rules framed which violates the Parent Act are illegal. Rules framed
which violates any other statute should also be considered as void. Delegated
legislation made with mala fide intention is also considered illegal.
To have a better understanding please go through the attached PowerPoint
Presentation. It has a better version of explanation about the Control Mechanism
of Delegated Legislation.
Factors responsible for the rapid growth of Delegated Legislation
• Pressure on Parliament – The number of activities in states is expanding
which requires law and it is not possible for the Parliament to devote
sufficient time to every matter. Therefore for this, the Parliament has made
certain policies which allows the executives to make laws accordingly.
• Technicality – Sometimes there are certain subject matters which requires
technicality for which there is a requirement of the experts who are
professional in such fields and members of Parliament are not experts for
such matters. Therefore, here such powers are given to experts to deal with
such technical problems like gas, atomic, energy, drugs, etc.
• Flexibility – It is not possible for the Parliament to look after each
contingency while passing an enactment and for this certain provisions are
required to be added. But the process of amendment is very slow as well
as the cumbersome process. Thus, the process of delegated legislation
helps the executive authority to make laws according to the situation. In
the case of bank rate, policy regulation, etc., they help a lot in forming the
law.
• Emergency – At the time of emergency, it is not possible for the legislative
to provide an urgent solution to meet the situation. In such case delegated
legislation is the only remedy available. Therefore, in the times of war or
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 other national emergencies, the executives are vested with more powers to
deal with the situation.
• The complexity of modern administration – With the increasing
complexity in modern administration and the functions of the state being
expanded and rendered to economic and social spheres too, there is a need
to shift to new reforms and providing more powers to different authorities
on some specific and suitable occasions. In a country like Bangladesh,
where control over private trade, business or property may be needed to be
imposed, and for implementation of such a policy so that immediate actions
can be taken, it is needed to provide the administration with enough power.
And so, therefore for immediate and suitable actions to be taken there has been
an immense growth of delegated legislation in every country and being that
important and useful it becomes a non-separable part in the modern
administrative era.
Advantages of Delegated Legislation
• Save time for the legislature.
• Allow for flexibility.
• Expert opinion is required in legislation.
• Parliament is not always present in the session.
• Used as an experimental basis.
• It is restored to use it in a situation of emergency.
• Can be easily Settle down with consulting the required party of the case.
Criticism of Delegated Legislation
• It has a long duration of bearing for legislative control because the
legislature is the supreme organ of the state as it consists of three main
organs which are: Judiciary, Legislative and Executive.
• All of them have to work with or in relation to each other and it should be
done in a balanced way on the basis of power given to each organ for
working effectively. Instead of various advantages, delegated legislation
has weakened the legislative control executive.
• The executive has become stronger with delegated legislation, it can easily
encroach the rules and regulation of legislation by making rules.
• This concept opposes the rule of Separation of Power.

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 • Lack of relevant discussion before framing the law.
• It is not in acceptance with the principle of rule of law.
• It is not stable in nature, it keeps on fluctuating on the ground of Political
changes.
Classification of Delegated Legislation
Power to bring Act into Action As it is already given that in a specified date this
Act will come into force prescribed by Central or State Government by giving a
notice in the Official Gazette.
In A.K. Roy vs. Union of India, case Supreme Court held that executive has the
power to bring the Act into force and it should not be excessive in delegated
power of legislation. So, here the court rejected the contention that the power was
excessive in nature as per prescribed. It was practically difficult for enforcement.
Therefore, power is given to the executive authority to decide the date of
enforcing the act.
Conditional Legislation the rules are framed or designed by the legislature but to
implement or enforce it, is done by the executive organ, so executive has to look
that what all conditions need to be fulfilled to bring it in operation. If all
conditions are satisfied then it is well and good otherwise notice will be issued to
bring the law into operation and it is known as Conditional Legislation.
Condition legislation is of following types
• Power to bring the act into action.
• Power to extend the time period or life of the act.
• Power to extend the application of the act to any territory and to make
restriction or make an alteration in the act itself.
• Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the
legislature and pass on to the executive to fill up with all the necessary blanks or
elements needed by the subordinate legislation.
Power face in removing difficulties – Power to modify the statute maybe given
to the government by removal of difficulties clause.
Control of Delegated Legislation
There are three kinds of Control given under Delegated Legislation:

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 1. Parliamentary or Legislative Control
2. Judicial Control
3. Executive or Administrative Control
Parliamentary or Legislative Control
Under parliamentary democracy it is a function of the legislature to legislate, and
it’s not only the right but the duty of the legislature to look upon its agent, how
they are working.
It is a fact that due to a delegation of power and general standards of control, the
judicial control has diminished and shrunk its area.
In India “Parliamentary control” is an inherent constitutional function because
the executive is responsible to the legislature at two stages of control.
1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for
completing the particular task, and it also observed that delegation of power is
valid or not.
Now, the second stage consists of two different parts.
1. Direct control
2. Indirect control
Direct control
Laying is an important and essential aspect under direct control and it is laid down
as per the requirement which means that after making the rule it should be placed
before the Parliament. It includes three important part as per the degree of control
needs to be exercised.
1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern to guide the
rule into impact then in such a case laying need is mandatory.

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Where the provision is mentioned that the rules should be drafted in a particular
format then it becomes mandatory to follow the format.
Test of Directory – Where the laying need is next to enforce the rule into
operation then it will be directory in nature.
Indirect control
This is a control exercised by Parliament and its committees. Another name for
such type of committee is Subordinate legislation. The main work of the
committee is to examine
1. Whether rule are according to general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for
the executive to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat
the actual objective of the act. Hence, procedural control means that under Parent
act certain guidelines are given which need to be followed while whether it is
mandatory or directory to follow it or not. It includes three components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are
given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs.
Rampur Municipal Council.
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Judicial Control
Judicial review upgraded the rule of law. The court has to see that the power
delegated is within the ambit of the constitution as prescribed. Judicial review is
more effective because court do not recommend but it clearly strikes down the
rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined under
the Constitution of India which clearly indicate that State should not make any
law which abridge the right given in Part iii of the Constitution. It is dependent
on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.

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