Natural Law Theory-

What makes a law a law, what gives it validity? Why are laws so highly regarded in society? Laws are
intended to shape behavior and relations between societal members. Law is also a means of regulating
relations and imposing particular behaviors. Laws are thus in a way preferred practices. They are articulated
as rules to influence behavior. They are encouraged through coercive force or the threat thereof. The
motivation of laws is protecting people in a society and imposing morality. JS Mill- Harm Principle- Laws
should only regulate behavior of citizens in so far as the behavior can harm others. He is trying to protect
our personal freedoms and liberties by saying that a person is free to do whatever he pleases so long as that
behavior does not harm (physical, financial, emotional) others. Flaws- Private behavior can at times harm
others (Example- Seatbelts). He does not explain why preventing harm to others is the only basis for
regulating behavior, how about harm to the self or society. Devlin disagrees with Mill and says that the
government has the right to protect the moral fabric of society; laws that prohibit immoral behavior are
valid. Steven says the government can regulate any behavior that the state says is immoral. Question- Who
defines what is moral and does morality always stays the same? When a government is allowed to decide
morality then it is the choice of a select few people to impose their morality on others.

Natural Law theory answers what gives law validity? – Reference to moral authority that exists beyond the
law itself, law is not regarded as separate from morality but rather law is subordinate to that morality.
Natural law theorists say it is difficult to determine what the fundamental moral principles are but there are
sources that help us draw upon what the moral principles are to help us guide our collective behavior. Moral
authority comes from three sources- religious codes (Holy books), intellectual origin (ration and reason)
& natural origin (laws in nature). If law conflicts with morality then the law should be disobeyed. Whether
or not a moral code will be successful depends on how many people ascribe to that moral code. If there are
conflicts then how do we decide which morality will be imposed on everyone. Law should be obeyed if it
aligns with a particular morality.

Moral Limits of Law- What are the moral limits of the law? What are the kinds of conduct that the law
ought to regulate? Can the law stop you from doing something because it is immoral even if it causes no
harm to another? Consider the following propositions: I think, therefore, that it is not possible to set
theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in
advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no
circumstances to be allowed to enter. — Lord Devlin. ‘The only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm to others’… –
John Stuart Mill, which of these propositions would you support? This issue also forms the fulcrum for the
famous Hart-Devlin debate.

Legal Positivism- First in the words of Kelsen is that law is an “instrument of social control”. Laws are
rules which compel on individuals to perform, or forbid them from performing, an action. For instance,
criminal law prohibits an individual from injuring another by way of punishment and by the order of specific
performance; contract law will impose on parties to a contract to perform what they have promised to do
under the contract. Secondly, “law is a social phenomenon, it is a social institution, and therefore, what the
law is, is basically a matter of social facts”. This is in line with the propositions by the early positivists such
as John Austin, who stated, “The existence of law is one thing; its merit or demerit is another”. Supporters
of this thesis are concerned with whether or not the law exists, viz. whether or not the relevant
authorities recognize the law, rather than whether the law is good or bad. The third thesis is that of
separation thesis which, which was put forward by Professor HLA Hart. The separation thesis
distinguishes law and morality. As Hart formulated, “it is in no sense a necessary truth that laws reproduce
or satisfy certain demands of morality, though in fact they have often done so”. Thus, what is morally wrong
can still be legally right. Legal positivism does not base law on divine commandments, reason, or human
rights. As an historical matter, positivism arose in opposition to classical natural law theory according to
which there are necessary moral constraints on the content of law. The word “positivism” was probably first
used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the
sense of being derived from natural law or morality. According to the positivist tradition a law or a norm has
the status of law if a recognized human authority declares it to be law. Distinguishing it from a god or deity,
positivists are not concerned with the content of the law but with the fact whether or not it was created by
the sovereign. Morality is irrelevant; law is valid if sovereign says it is valid. Law must have the correct
pedigree that is the sovereign must follow the established procedures for law making. Positivists assess the
validity of law by asking two questions- 1) Was the law created by the correct authority 2) Did the authority
follow the correct procedures? Law is valid only if the answer is yes to both questions. Command Theories
and their Predecessors - Legal Positivism is a doctrine about the nature of law according to which laws are
posited (laid down). The legal validity of a rule or decision depends on its sources (e.g. its pedigree) rather
than its merits (e.g. whether or not it is a good rule). Command Theories- This way of understanding law
was made famous during the nineteenth century by the ‘command’ theories of law advanced by Jeremy
Bentham and John Austin (but the roots of sovereign command theories are much older e.g. Hobbes). Due to
a historical accident, it is Austin’s writings that became more prevalent that Bentham’s though the former
was the latter’s disciple and a far more sophisticated legal philosopher. It is very important to understand the
command theorists because they were enormously influential and a lot of 20th century legal philosophy
including Kelsen and Hart evolved in response to these command theories. According to these theories,
something is law if it has been commanded by a Sovereign, and is backed up by the threat of a
sanction in case of non-compliance. Command theories have some things going for them which explained
their sway over us for so long: They urge us to identify and understand what law is before considering
whether it is morally good or bad; they give a central role to sanctions which are ubiquitous in the law.
Criticisms to Positivism- Positivism fails to explain how the sovereign decides which law to pass. If
morality is not the deciding factor then what is. How does a sovereign decide? Positivism does not help us
distinguish between a right law and a wrong law or a good law and a bad law. All that positivism helps us do
is distinguish between a valid law and an invalid law. The second criticism, positivism fails to justify the
process by which a law is enacted. How can we determine that the rule, which allows the parliament to make
laws, in the first place is valid? We cannot logically determine this. Hart for instance says that the rule,
which governs law making, is socially accepted. What happens if the rule is rejected- protests, revolutions,
and civil disobedience? People are rejecting the law does the law remain valid? According to positivists it
invalidated the laws and law making procedures. According to Kelsen the rules that authorize the sovereign
to make law exist in the “Grund Norm”. This is a fundamental norm upon which all other norms/ laws are
based. The “Grund Norm” is something you either accept or you do not. If you accept it then laws are valid
and if you don’t then laws are invalid. An important parallel between positivism and natural law is that both
theories are based on social acceptance. Hart-What matters is whether or not the law was validly enacted by
the sovereign not whether it is immoral or moral. Fuller- The law is not valid because it is immoral.
(Example- Nazi Germany)

Bentham and Austin- Driven by empirical reality of law, they begin with the presumption of a political
society. Although there are much similarity between the theses of Austin and Bentham, there are a number
of significant differences. “Austin wished himself to construct a science of law rather than involve himself
in Bentham's art of legislation”. Unlike Austin, Bentham proposes for “a single, complete law, which
adequately expresses the will of the legislature”. Also, Austin is willing to accept judicial law making,
which was vehemently opposed by Bentham as stated above. More importantly, their views differ on the
‘Command Theory' expounded by Austin. For Austin, “anything that is not a command is no law and only
commands emanating from the sovereign are ‘positive laws'”. Bentham, on the other hand, however, argues,
“Commands are merely one of four methods by which the sovereign enacts law”. “Bentham distinguished
between laws which command or prohibit certain conduct (imperative laws) and those which permit certain
conduct (permissive laws)”. Sanction was defined by Austin as “an evil to… be incurred by [the failure to
comply with the wishes of the sovereign”. As such, a command includes the expression of the sovereign's
wishes followed by a sanction. Bentham, however, “is willing to concede that a sovereign's commands
would constitute law even in the absence of sanctions in the Austinian sense”. For Bentham, “law includes
both punishments and rewards”. Also different is the definition of sovereignty. Austin defines sovereignty
that “if a determinate human superior, not in a habit of obedience to a like superior, receive habitual
obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the
society is a society political and independent”. Unlike Austin who emphasized on “the illimitability and
indivisibility of the sovereign, Bentham acknowledges that the supreme legislative power may be both
limited and divided”.

Bentham- Law is- assemblage of persons, expression of subjective will, and author of the law is the
sovereign himself, sovereign has allowed the previous sovereigns law to continue. Founder of modern
utilitarianism, principal of utility applies to government or an individual; utility is when the outcome is more
pleasure than pain. Law has two parts- Directive of the legislative and Prediction of what will happen if
disobedient. A well-drawn code would greatly reduce the opportunity of a judge to make law or determine
policy. “Stare decisis”- follow precedent, uniformity and “Salus res publicea”- natural justice or equity.
Bentham- Command of private power holder if authorized by sovereign legislative power is itself a “law”
and thus adopts them. Sovereign adopts the principle of utility. Bentham is against totalitarianism. Bentham
created jurisprudence- Object is not to expound the law but to reform it. Expository (what the law is,
authoritative, confined to meaning of words) and Censorial (what the law ought to be, unauthoritative, broad
and law of different nations did not have to be the same, art of legislation). Intelligent system of law would
be precise and definite.

Austin- John Austin 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
severity of the threatened sanction is irrelevant; any general sovereign imperative supported by a threat of
even the smallest harm is a law.

Jurisprudence contains- Nature of law; Principle to Utility- Sovereignty arose out of a state of nature by
means of a social contract and law was a product of sovereignty. Analysis of pervading notions of rights,
duties, injuries, Austin went deeper than Bentham, he talks about only punishment in sanction, and Bentham
agreed that obedience might not be habitual whereas in Austin it is habitually. Sovereign is above the law, if
he agrees to obey he is not sovereign. Sovereign is the ultimate superior. His command is the law that is
habitually obeyed. Command- Enforced by sovereign, backed by sanction, must be commanded. These
commands form the positive law. Sovereign- If a determinate superior not in the habit of obedience to a like
superior, receive habitual obedience or from bulk of given society, the determinate superior is sovereign in
that society. Law is a command of the sovereign- Guiding rules laid down by intelligent human beings for
other intelligent human beings. Limitations to Command Theory of Law- Commands given by men to one
another- Anarchy, Independent Political Society and Sovereign and Sovereign, laws by analogy (rules of
positive morality)- merely an opinion and not a reflection of sovereign will and scientific laws which cannot
be obeyed or disobeyed.

Hart’s Criticism to Austin-

One problem is that there appears to be no identifiable sovereign in democratic societies. Thus, in
democracies like that of the United States, the ultimate political authority and the power to coerce behavior
seems to reside in different entities. A second problem has to do with Austin’s view that the sovereign
lawmaking authority is incapable of legal limitation. On Austin’s view, a sovereign cannot be legally
constrained because no person (or body of persons) can coerce herself (or itself). Since constitutional
provisions limit the authority of the legislative body to make laws, Austin is forced to argue that what we
refer to, as constitutional law is really not law at all; rather, it is principally a matter of “positive morality”.
Hart points out that Austin’s theory provides, at best, a partial account of legal validity because it focuses on
one kind of rule, namely that which requires citizens “to do or abstain from certain actions, whether they
wish to or not”. While every legal system must contain so-called primary rules that regulate citizen behavior,
Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at
best, a rudimentary or primitive legal system.

On Hart’s view, Austin’s emphasis on coercive force leads him to overlook the presence of a second kind of
primary rule that confers upon citizens the power to create, modify, and extinguish rights and obligations in
other persons. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be
characterized as restrictions on freedom that are backed by the threat of a sanction. These rules empower
persons to structure their legal relations within the coercive framework of the law-a feature that Hart
correctly regards as one of “law’s greatest contributions to social life.” The operation of power-conferring
primary rules, according to Hart, indicates the presence of a more sophisticated system for regulating
behavior. But what ultimately distinguishes societies with full-blown systems of law from those with only
rudimentary or primitive forms of law is that the former have, in addition to first-order primary rules,
secondary meta-rules that have as their subject matter the primary rules themselves.

Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-
blown legal systems: (1) the rule of recognition, which “specifies some feature or features possession of
which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts” (2) the rule of change, which enables a society to add, remove,
and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for determining
whether a valid rule has been violated. On Hart’s view, then, every society with a full-blown legal system
necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for
making, changing and adjudicating law. Law is, to use Hart’s famous phrase, “the union of primary and
secondary rules”. Austin theory fails, on Hart’s view, because it fails to acknowledge the importance of
secondary rules in manufacturing legal validity.

Hart also finds fault with Austin’s view that legal obligation is essentially coercive. According to Hart, there
is no difference between the Austinian sovereign who governs by coercing behavior and the gunman who
orders someone to hand over her money. In both cases, the subject can plausibly be characterized as being
“obliged” to comply with the commands, but not as being “duty-bound” or “obligated” to do so. On Hart’s
view, the application of coercive force alone can never give rise to an obligation-legal or otherwise. Legal
rules are obligatory, according to Hart, because people accept them as standards that justify criticism and, in
extreme cases, punishment of deviations: What is necessary is that there should be a critical reflective
attitude to certain patterns of behavior as a common standard, and that this should display itself in criticism
(including self-criticism), demands for conformity, and in acknowledgements that such criticism and
demands are justified, all of which find their characteristic expression in the normative terminology of
‘ought’, ‘must’, and ‘should’, and ‘right’ and ‘wrong’.

The subject who reflectively accepts the rule as providing a standard that justifies criticism of deviations is
said to take “the internal point of view” towards it. On Hart’s view, it would be too much to require that the
bulk of the population accept the rule of recognition as the ultimate criteria for legal validity: “the reality of
the situation is that a great proportion of ordinary citizens-perhaps a majority-have no general conception of
the legal structure or its criteria of validity”. Instead, Hart argues that what is necessary to the existence of a
legal system is that the majority of officials take the internal point of view towards the rule of recognition
and its criteria of validity. All that is required of citizens is that they generally obey the primary rules that
are legally valid according to the rule of recognition.

Thus, on Hart’s view, there are two minimum conditions sufficient and necessary for the existence of a legal
system: “On the one hand those rules of behavior which are valid according to the system’s ultimate criteria
of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria
of legal validity and its rules of change and adjudication must be effectively accepted as common public
standards of official behavior by its officials”. Hart’s view is vulnerable to the same criticism that he levels
against Austin. Hart rejects Austin’s view because the institutional application of coercive force can no more
give rise to an obligation than can the application of coercive force by a gunman. But the situation is no
different if the gunman takes the internal point of view towards his authority to make such a threat. Despite
the gunman’s belief that he is entitled to make the threat, the victim is obliged, but not obligated, to comply
with the gunman’s orders. The gunman’s behavior is no less coercive because he believes he is entitled to
make the threat. Similarly, in the minimal legal system, only the officials of the legal system take the
internal point of view towards the rule of recognition that endows them with authority to make, execute,
adjudicate, and enforce the rules. The mere presence of a belief in the officials that they are entitled to make
law cannot give rise to an obligation in other people to comply with their enactments any more than the
presence of a belief on the part of a gunman that he is entitled to issue orders gives rise to an obligation in
the victim to comply with those orders. Hart’s minimal legal system is no less coercive than Austin’s legal
system.

H.L.A Hart

Hart forms the core of this course. Hart set many of the terms of the debate on 20th century philosophy.
Hart’s The Concept of Law remains one of the most influential texts of legal philosophy in the English-
speaking world. Hart responded to his predecessors, Bentham, Austin, Kelsen, the American Realists and
the Scandinavian Realists in the eyes of many convincingly demolishing their accounts. From that point he
constructed his own influential account of law as a system of rules, socially practiced rules.

The Legal System as a System of Rules- The law for Hart was a union of primary and secondary rules. Hart
argued that law is the union of primary and secondary rules. Primary rules impose duties on people to
behave in certain ways. Secondary rules, by contrast, pertain to the primary rules. Primary rules do not
themselves settle which of them meet the criteria of legal validity and thus are to count as primary rules in
the first place, or the solution in the event of a conflict between two or more primary rules. This is where the
secondary rules assume significance. They lend an element of dynamism to the legal system of which they
are a part by permitting it to solve problems that would arise were it to comprise exclusively of primary
rules alone. Hart identifies three types of secondary rules: rule of recognition, adjudication and change.
Rules of recognition provide conclusive methods for ascertaining which primary rules meet the criteria of
legal validity. Rules of change enable and regulate the process of altering, and repealing primary rules.
Rules of adjudication empower some officials (courts) to make authoritative determinations of departures
and violations. These three types of rule exhaust the realm of secondary rules for Hart. Rules and Legal
Obligation- As far as his account of legal obligation goes, Hart argues that a legal obligation is a statement
of what is required to comply with a rule. He seeks to walk a tight rope between many pitfalls among them
being extreme empiricism (like Bentham, Austin, American Realists); metaphysical ambition, or profligacy,
if you will (like the natural lawyers); and obscurity (like Kelsen who struggled to tell exactly what the nature
of the legal obligation was). Rules and Adjudication- Closely intertwined with Hart’s account of obligation
and his criticism of American Legal Realism is his theory of adjudication. His objective here again was to
steer the middle path between two extremes. One extreme saying there is really no law and whatever the
judge does is law (the American Legal Realists) which Hart called the nightmare and the other extreme
where all the judge does is merely apply the law at all times which Hart called the noble dream. Hart argues
that there are times when the judge applies the law. But then there could be gaps in the law, in which case
the judge makes law.

Albeit Hart's ‘modified positivism' can be distinguished from the classical positivism in certain ways, Hart
agrees with “earlier legal positivists, specifically with the nineteenth century jurist John Austin, on two
points”. First, Hart agrees to begin his analysis of the theory of law by “appreciation of the fact that where
there is law, there human conduct is made in some sense non-optional or obligatory”. Second, Hart stood by
Bentham, refusing to admit a connection between law and morality. In Hart's words, “though there are many
different contingent connections between law and morality there are no necessary conceptual connections
between the content of law and morality”. In his support for Bentham's separation of laws and morals, he
proposed the ‘Separability Thesis', which remains a central fort of his theory. The ‘Separability Thesis'
referred to the separation of law and morality. “This abstract formulation can be interpreted in a number of
ways”. On one hand, extreme positivists like Faber argue that the definition of law should be completely
free from morality, rejecting any moral consideration related to the concept of law, legal validity and legal
system. On the other hand, soft positivists like Hart believe that whilst law does not necessary “reproduce or
satisfy demands of morality, in fact they have often done so”. As Hart describes, although “a legal system
must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction
that there is a moral obligation to obey it...[it does not follow that] the criteria of legal validity of particular
laws used in a legal system must include, tacitly if not explicitly, a reference to morality or justice”.

Another proposition put forward by Hart is that law, as he sees it, is a system of rules. This includes
obligation rules, which impose duties or obligations. Obligation rules, as Wacks observed, can be separated
into moral rules and legal rules. As mentioned in the preceding section, when Hart attempted to refine the
classical positivism theory, he distinguishes legal rules between primary rules and secondary rules.
According to Hart, many primary rules are also social rules. As presented in the last paragraph, many people
are adhering to the law for the function and success of the society. Thus, it is arguable that these social rules
carry a moral duty to observe the law. Nonetheless, Hart is opposed to the idea that such moral obligations
have made them laws. Rather, these primary rules must be combined with the secondary rules, which
“specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined”, to be social rules laws properly so called.
From this, it is evident that Hart do rely on social rules in the formulation of his theory.
However, as Hart identified, there are three defects with primary rules in the simplest form of social
structure. Firstly, of the defect which Hart termed as ‘uncertainty', primary rules by itself do not provide
procedure to resolve doubts arose as a result of uncertainty over what the rules are and the scope of the rules.
The second defect arose a result of the rules' ‘static' character, where “there will be no means, in such a
society, of deliberately adapting the rules to changing circumstances”. The third defect “is the inefficiency of
the diffuse social pressure by which rules are maintained”. The final defect arises when despite efforts to
catch and punish offenders; there is an “absence of an official monopoly of ‘sanctions'”. These defects led
Hart to propose the secondary rules, consisting of rules of recognition, rules of change, and rules of
adjudication, to supplement the primary rules and thus resolving these defects.

On the defect of ‘uncertainty', Hart stated that it should be remedied by a ‘rule of recognition', which “will
specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative
indication that is a rule of the group to be supported by the social pressure it exerts”. In classical era, this
may mean “an authoritative list or text of the rules... in a written document or carved on some public
monument”; in modern days, the list may refer to “some general characteristics possessed by the primary
rules”. Hart then went on to introduce the ‘rules of change' to remedy the ‘static' defect. In Hart's words,
“the simplest form of such a rule is that which empowers an individual or body of persons to introduce new
primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules”.
Hart explained that “there will be a very close connection between the rules of change and the rules of
recognition: for where the former exists the latter will necessarily incorporate a reference to legislation as an
identifying feature of the rules”. Finally, the defect of ‘inefficiency' was countered by the ‘rules of
adjudication'. This means that individuals will be empowered to “make authoritative determinations of the
question whether, on a particular occasion, a primary rule has been broken”. Again, the ‘rules' of
adjudication' has very close links with the ‘rules of recognition' for “the rule which confers jurisdiction will
also be a rule of recognition, identifying the primary rules through the judgments of the courts”. As such, the
concept of ‘rules of recognition' is, in Hart's theory, vital to the existence of a legal system.

Realism- Realism is a project designed to keep an area of thought close to what is widely and
uncontroversially recognized as the reality as opposed to mere idealism. Sometimes, this project is also
called reduction. Translating a complex, problematic idea that does not have a firm footing in science into
one that has a strong scientific basis is the point of reduction or realism. Accordingly, the Legal realists’
quest was to expel from the ‘science of law’ all but empirically verifiable propositions. Realists condemn as
idealistic (unscientific) any categories of legal thought that cannot be reduced to empirical facts. So, for
them the idea of an obligation is pretty much nonsense unless translated to the predictability of sanction
(note the clear similarities with Bentham and Austin here). There are two realisms that have been prominent
in legal theory. One is American Legal Realism and the other is Scandinavian Realism. While American
Legal Realism is older, it was Scandinavian Realism, which was the more sophisticated of the two. While
both the American and Scandinavian realists were committed to a scientific and empiricist approach the
Scandinavians paid close approach to the way in which law played a role in the mentality of those subject to
it.

What are legal rules?

Realists according to Green understood legal rules to mean as something that provides a reason for action
i.e. rules gave you a reason to behave in a particular way. In that sense, law would then suggest that these
legal rules would provide over-riding reasons for acting in accordance with them. Furthermore, the
reasoning provided by these rules would be so strong that it would preclude any other reasons for any other
form of action from the subjects’ deliberation. Green critiques the above paragraph by saying that it is
unlikely that reasons for action provided by law would ever over-ride moral reason to something else. He
also gave a few clarifications regarding the matter i.e.
a. Firstly; the fact that we have a reason to do what the law says is not enough to show that legal rules
exist. E.g. a statute prohibiting killing innocent men- in this situation, the fact that we don’t kill men
doesn’t mean we don’t do it due to the statute. For all we know, the statue may have nothing to do
with it and the only reason we don’t do it is because of moral reasons.
b. Secondly, the relevant reasons for action must be objective and not subjective. In being objective,
legal reasons must look very much like moral reasons.
c. Thirdly, if legal rules exist, then everyone to whom a valid law applies has a reason for compliance
with its demands. The third and the second requirement are inter-related because only if legal rules
are objective can there be a reason for compliance for everyone
The last two points can also be rules out because of the fact that due to subjective reasons, most people obey
the law, but it is not likely that EVERYONE will have a subjective reason to obey the law. Conclusively, the
fact that something is valid law does not give those to whom the law applies an objective reason for
obedience. In this sense, the realists' rule- skepticism is similar to philosophical anarchism. The
philosophical anarchist denies that valid law always gives those to whom it applies a moral reason (even a
prima facie moral reason) for compliance. But legal realism goes beyond philosophical anarchism, as it is
usually understood. The philosophical anarchist can accept that the law provides objective reasons for action
that are not moral. The realists, in contrast, rejected the idea of legal obligation entirely.

American Legal Realism- The leading light of this movement was the celebrated American Supreme Court
Judge; Justice Oliver Wendell Holmes Jr. Holmes saw the legal obligation as a prediction that sanctions
were likely to be visited upon someone not following a course of conduct. Accordingly, Holmes saw a
contractual obligation as the obligation to pay damages in case of breach. But doesn’t this put the cart before
the horse? He inspired the American realist movement with a jurisprudential theory based on the need to
‘think things, not words’. The examination of facts must dominate legal investigation. The object of a study
of the law is ‘prediction’ – that is, ‘the prediction of the incidence of the public force through the
instrumentality of courts’. The study of the law’s operations demands that the positive law be kept in focus
and that it be investigated in a methodical, realistic fashion. More than a century has passed since Holmes
published The Path of the Law (1897), which assisted in the provision of a theoretical basis for American
Realism. The jurist should be guided by what a contemporary of a Holmes referred to as ‘the humility of the
experimental scientist’, who wastes no time in worrying about the absence of ‘ultimates’. By studying the
real operations of law, one would discover the facts, which constituted ‘the law’. Holmes illustrated the
importance of ‘dissolving’ extraneous irrelevance, by reference to the notion of ‘legal duty’. We have filled
the word ‘duty’ with a content drawn from morality. But when we wash away from the phrase ‘legal duty’
its moral overtones, we are left with ‘duty’ viewed in terms of the consequences for those who break the
law. The law of contract provides further examples of confusion engendered by the use of ‘moral
phraseology’. Remove the irrelevancies and discover the realities of the contractual relationship: this is the
guidance to be given to those who seek to discover the meaning of the law. According to Holmes, law must
be strictly distinguished from morals, for the lawyer is concerned with what the law is and not what it ought
to be. The science of law consists in the establishment of its postulates from within upon accurately
measured social measures instead of tradition. Therefore, Holmes relied more on practical than on pure
science, the lawyer trained in economics and statistics, although he did not distinguish as to how the
relationship between science and law can be developed. Holmes emphasizes that life of the law was
experience and not logic and law is a prediction of what courts will decide is essentially an empirical
approach to law. The true science of law according to Holmes lies in its postulates from within which law
has to be measured accurately. But Holmes does not provide the mechanism or a method of evaluation of
these postulates. In The Common Law (1923), Holmes repeats and elaborates his injunction to jurists to
discount the part supposedly played by logical reasoning in the courts’ process of adjudication. Law can be
seen as the embodiment of a nation’s long development but it cannot be interpreted merely in the terms of
logic. Hence, it is important that lawyers and judges be well acquainted with the historical and social
contexts of the law they administer. To be a master of law, one must master the branches of knowledge that
lie next to it. The jurist should not neglect anthropology and history, since ‘In order to know what is, we
must know what it has been, and what it tends to become’. ‘The real relationship of jurisprudence to law
depends not upon what law is treated, but how law is treated’. Accordingly, Gray stresses the fact that
statute, together with precedent, equity and custom are sources of law but the law itself is what the persons
acting as judicial organs of the state lay down as rules of conduct. The law as expressed in statutes or
customs gets meaning and precision only after the judge expresses his opinion. The judges according to
Gray depend on the sources of law such as statutes, judicial precedents; opinion of experts, customs and
public policies, and principles of morality, the law becomes concrete and positive only in the
pronouncements of courts. His basic thesis was that when judges settle what facts exist in a dispute and law
down the rules by which they deduce legal consequences from those facts, those rules constitute the law.
Judge made law is the final and authoritative form of law. Gray’s contribution to American Realist thought
lies in the fact that the judicial decisions often have been responsible for giving not only content but also
direction to political, social and economic thought. The most well known reason for rise of pragmatic
instrumentalism (realism) is the reaction to formalism in legal reasoning and education. In general, however,
a formalist sees legal reasoning as value-neutral because it proceeds syllogistically from rules and concepts
clearly defined historically and logically. On this traditional conception, a judge discovers the correct
preexisting principles governing a case, applies them to the new facts, and deduces the decision. The
formalist view is reflected in the case method of legal study, based on the idea that close scrutiny of past
decisions will reveal basic doctrines and concepts of law dictating future decisions.

Summers (a third person looking at realism) applauds several realist trends as healthy responses to
formalism: (i) testing legal actions and decisions by probable consequences instead of retrospectively
weighing their consistency and coherence, (ii) introducing empirical data to develop law as a practical and
flexible means for social improvement rather than seeing law as a self-justifying system of logical precepts,
and (iii) refocusing on particulars and not merely general principles. Legal realists are also well-known for
stressing that judges both do and should have broad law-making powers, the most extreme version claiming
that since statutes and sources of law are so vague, "in truth, all the Law is judge-made law. Realists'
approval of judicial readiness to overrule, modify, and make new policy revealed an insufficient regard for
the justifying force of precedents and those parts of law that are determinate and binding. Realists give two
accounts of what valid law is: ‘Any rule or precept acted upon or laid down by an authorized official is
valid’ and secondly, ‘valid law consists of what the courts will so’. Most commentators, including Summers,
have characterized legal realism as encompassing two aspects: (1) an exciting critical aspect attacking the
insularity of formalism and demonstrating the value-laden character of law, and (2) a more disappointing
constructive aspect urging implementation of public policies and emphasizing judicial decision as
determinative of law.

Kelsen: The Purity Theorist

Kelsen, along with Hart was one of the most influential theorists of the 20th century. Kelsen pointed out that
the command theorists were mistaken in characterizing the law as a command of the sovereign backed up by
threats. Why--because if that were to be the case, there would be no difference between the law and a
gunman’s command; but there is a difference between the two. The law unlike the gunman’s commands is
‘normative’ and ought’; and this ought is ‘binding’. Valid law, in short, is normative and binding. But what
makes this binding? Is it not because some sovereign said so, or because it is morally meritorious? It is
binding because the law derives its validity from the grundnorm i.e. basic or ultimate norm of the legal
system. The basic norm lends unity to the legal system by endowing the norms (rules of law) under it with
both validity and normativity. Propositions of law on the other hand deal with what ought to occur.
Propositions of law- i.e. ought propositions are called norms. Law is a hierarchy of norms whose validity is
derived from the initial, fundamental norm called the Grund norm. A grund norm is simply a pre-supposition
behind statutes such as the constitution imparting validity to the constitution. Since there is no backing
behind the grund norm, to an extent it cannot be analyzed. Necessary to distinguish between validity and
effectiveness- when a grundnorm ceases to drive a minimum of support, it ceases to be the basis of a legal
order. The normativity question asks: what makes law possible? What gives it a capacity to have a claim
upon our conduct such that we feel under an obligation as opposed to merely feeling obliged? Kelsen’s
answer the second species of the normativity question by saying To Kelsen the law was normative and had a
claim upon our conduct because it was valid. It was made valid by the presupposition of a basic norm, which
made legal cognition possible in an already existing legal system. Kelsen's answer to the normativity
question is that legal cognition is made possible by presupposing the basic norm, 'positive norms are valid
only on the assumption: that there is a basic norm, which establishes the supreme law creating authority.' He
argues that which we know to be true, namely the legal validity of an already existing legal system, is only
possible if we presuppose the basic norm. Kelsen’s theory: Kelsen wished to construct an independent,
objective, value free science of law, in short a pure theory of law. For Kelsen an independent, objective and
value free study of the law required any explanation of the normativity of law to be separated from morality,
which was to Kelsen mere ideology. Criticism- In whatever way the effectiveness of Kelsen’s grund norm is
measured, it would seem to depend on those sociological factors which Kelsen so vehemently wanted to
remove, Kelsen’s inability to lay down criterion, by which minimized effectiveness of legal norms is to be
measured. What makes the basic norm possible in the first place is not answered. He treats that this question
as beyond the realms of theory. The content of the basic norm was first described as “norm creating facts”-
This however contradicts Kelsen's purity thesis, because it amounts to deriving laws from norm creating
facts and thus an 'ought' from an 'is'. Then Kelsen went onto concede that the basic norm was a fiction and
not a presupposition and in his second book did not refer to the contents of the basic norm. The traditional
legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and
moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other
hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’
theory of law, which would avoid reductionism of any kind. The jurisprudence Kelsen propounded
“characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this
purity serves as its “basic methodological principle”. The main challenge for a theory of law, as Kelsen saw
it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce
jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of
interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative
meaning to certain actions and events in the world. Suppose, for example, that a new law is enacted by the
California legislature. How is it done? Presumably, some people gather in a hall, debate the issue, eventually
raise their hands in response to the question of whether they approve a certain document or not, count the
number of people who say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and
events described here are not the law. To say that the description is of the enactment of a new law is to
interpret these actions and events in a certain way. But then, of course, the question is why certain acts or
events have such a legal meaning and others don't?

Kelsen's answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning
by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is
created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the
“higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another,
“higher” norm that authorizes its enactment in that way. In other words: it is the law in the United States that
the California legislature can enact certain types of laws. But what makes this the law? The California
Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of
content and jurisdiction. But then what makes the California Constitution legally valid? The answer is that
the legal validity of the Constitution of California derives from an authorization granted by the US
Constitution. What makes the US Constitution legally valid? Surely, not the fact that the US Constitution
proclaims itself to be “the supreme law of the land”. Any document can say that, but only the particular
document of the US Constitution is actually the supreme law in the United States. The problem is that here
the chain of authorization comes to an end: There isn't a higher legal norm that authorizes the enactment of
the (original) US Constitution. At this point, Kelsen famously argued, one must presuppose the legal validity
of the Constitution. At some stage, in every legal system, we get to an authorizing norm that has not been
authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative
content of this presupposition is what Kelsen has called the basic norm. The basic norm is the content of the
presupposition of the legal validity of the (first, historical) constitution of the relevant legal system.

As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate David Hume's
injunction against deriving an “ought” from an “is”. Hume famously argued that any practical argument that
concludes with some prescriptive statement, a statement of the kind that one ought to do this or that, would
have to contain at least one prescriptive statement in its premises. If all the premises of an argument are
descriptive, telling us what this or that is the case, then there is no prescriptive conclusion that can logically
follow. Kelsen took this argument very seriously. He observed that the actions and events that constitute,
say, the enactment of a law, are all within the sphere of what “is” the case; they are all within the sphere of
actions and events that take place in the world. The law, or legal norms, is within the sphere of “ought”, they
are norms that purport to guide conduct. Thus, to get an “ought” type of conclusion from a set of “is”
premises; one must point to some “ought” premise in the background, an “ought” that confers the normative
meaning on the relevant type of “is”. Since the actual, legal, chain of validity comes to an end, we inevitably
reach a point where the “ought” has to be presupposed, and this is the presupposition of the basic norm.

The idea of the basic norm serves three theoretical functions in Kelsen's theory of law: The first is to ground
a non-reductive explanation of legal validity. The second function is to ground a non-reductive explanation
of the normativity of law. The third function is to explain the systematic nature of legal norms. These three
issues are not un-related. This last point brings us to another observation that is central to Kelsen's theory,
about the relations between legal validity and, what he called, “efficacy”. The latter is a term of art in
Kelsen's writings: A norm is efficacious if it is actually (generally) followed by the relevant population.
Thus, “a norm is considered to be legally valid”, Kelsen, wrote, “on the condition that it belongs to a system
of norms, to an order which, on the whole, is efficacious”. So the relationship here is this: efficacy is not a
condition of legal validity of individual norms. Any given norm can be legally valid even if nobody follows
it. (e.g. think about a new law, just enacted; it is legally valid even if nobody has yet had an opportunity to
comply with it.) However, a norm can only be legally valid if it belongs to a system, a legal order that is by
and large actually practiced by a certain population. And thus the idea of legal validity, as Kelsen admits, is
closely tied to this reality of a social practice; a legal system exists, as it were, only as a social reality, a
reality that consists in the fact that people actually follow certain norms.

Emmanuel Kant-
Kant concept of morality is acting from duty, goodwill and categorical imperative. Conflicting voices of
your desires shows the existence of basic Kantian morality in each of us. Kantian says you should not
misuse people even if it brings about good consequences. Kantian philosophy regards motivation not
happiness as a good will. Morality is about goodwill not consequences. Acting from duty, reason, acting
knowing what you ought to do. Two types of ought’s, imperatives or commands. Hypothetical Imperative
(goals, desires or what I want) and Categorical Imperative (Always there, regardless of goals and desires,
flow fro your rational nature not what you want, ought not to steal irrespective of it being your greatest
desire or self interest). 19th Century German Philosopher most notable for his work on Ethics. Ethics is the
philosophical study of moral actions, not just about judging people per say but looking at right and wrong as
philosophical concepts in them and how it might figure out the best way for people to behave.
Consequentialism- divides right from wrong entirely on the basis of consequences of an action in other
words, the end justifies the means, and Deontology on the other hand occupies the position that
consequences don’t really matter because moral judgment is contained in the act alone. Kant was against the
subjectivity of the moral theory, as it existed. He proposed an objective stone cold theory of the moral law,
which he called the categorical imperative. The categorical imperative is based on Kant’s idea that morality
is derived from rationality and all moral judgments are rationally supported. Just as rational thought leads us
to an objective reality, so too is an objective morality, which can be located through a similar process. The
categorical imperative is an absolute non-negotiable universal that holds up regardless of context and
circumstance. Kant was absolutely unwavering on this point. What is right is right and what is wrong is
wrong. Categorical imperative can be broken down into three maxims- 1 st- All your actions must have
universality. In other words you should only do something if you think it is okay that everybody did it all the
time. (Example- Cheating) 2nd- every human being must be treated as an ends rather than a means to an end,
you are never allowed to manipulate anyone no matter what, Kant thought that the greater good was
irrelevant. Each person is his or her own rational agent. No one person may be manipulated to achieve the
goals of another, which means you can never lie, not even once. (Criticism- Axe example, rebuts it saying
you are responsible for only your own moral choices) 3 rd- behave as if you are the absolute moral authority
of the entire universe. Categorical imperative is the source of morality. You can’t help but universalize
things you do or think. The nature or ration is to universalize everything. It flows from your ration nature
and you tend to universalize the maxim you think and this leads to a contradiction or conflict. 2 nd
Formulation- Act so that you treat humanity whether in your own person or that of another always as an end
and never as a means. This formulation is misunderstood. Using people as a tool but reason and use rational
thought while acting, treat them not merely as a means but as an end. (Example- Money, means, borrowing
etc.), autonomy, freedom etc.

Criticism- Absolute values conflict; what do you do if absolute values conflict. Something is deep and
correct about Kant’s moral theory.

Scandinavian Realism

Scandinavian Legal Realists were a the group of legal philosophers sometimes referred to in a tongue-in-
cheek manner as ‘the wild prophetic figures riding in from the hills with a message for legal philosophers’
due their radical and iconoclast philosophy. This group comprised of philosophers Axel Hagerstrom, Karl
Olivecrona, Vilhelm Lundsted and Alf Ross. Hagerstrom, the leading light of this movement, propounded a
strictly empiricist and naturalist philosophy that sought to eliminate what he thought was speculative
metaphysics. His chosen motto raised a call to arms against metaphysics. Integral to Hagerstrom’s and
Scandinavian Realists philosophy (legal and moral) was a non-cognitivist account of moral value, which
according to him, consisted in the idea of moral ‘internalization’. They in fact saw Kelsen as an inheritor of
the troublesome legacy of natural law and wanted to do away with every vestige of the natural law. Kelsen’s
grundnorm was nothing but natural law redux, they thought and hence wanted to banish it. It is now widely
thought that Hart demolished the program of the Scandinavian Realists. Though they now don’t have the
following they once did, they can be seen as precursors to Hart. Seeing the points of contiguity between
Scandinavian Realists and Hart is an interesting exercise. The approach to law and legal institution, which
Scandinavian Realists have developed over the centuries is peculiar and has very little parallel in other
countries. The Scandinavian legal realists representing Nordic countries law, legal institutions and legal
systems have not been influenced by common law doctrines as they remained insular from the rest of the
world on account of their geographical positioning and had little political, social and commercial intercourse
with countries outside the Nordic region. According to Scandinavian realists law can be explained only in
terms of observable facts, and the study of such facts, which is the science of law, therefore a true science
like any other concerned with facts and events in the realm of destiny. The essence of Scandinavian Realism
is a reaction against ‘pseudo-concepts’, which are claimed to be merely ‘shams’. Reality may be discovered
by an analysis of facts. Assertions, which cannot be proved, so-called ‘inherent qualities’ of legal concepts,
are worthless. Law is the creator of our morality and not the other way round. A central theme for
Hägerström was the analysis of basic legal concepts such as ‘rights’ and ‘duties’, which he refuted as
metaphysical pseudo-concepts representing nothing existent in time and space. According to Hägerström,
any attempt at determining the facts that correspond to the idea of ‘rights’ leads to ‘insuperable difficulties’.
By the ‘right to property’ we do not mean protection by the government, because, all the government can do
is to help me regain the property if it is lost or stolen. Similarly, if a person is obliged to me, the state can in
no way guarantee that he will carry out the payment in time. It is the right that is the precondition for the
protection, and not the protection that is a precondition for the right. Scandinavian realists were opposed to
metaphysical speculation and were concerned with the general investigation of the ‘fundamental facts’ of
legal systems. The nature of rights and duties was of particular interest to them. In legal theory, Hägerström
aimed at uncovering metaphysical elements by means of conceptual analysis in order to establish a
foundation for a truly scientific theory of law. The Scandinavian Legal Realist movement involves,
essentially, a reaction against the ‘chimera of metaphysics’, its inadequacies and distortions, and a
concentration on the ‘facts’ of ‘legal life’. As such, Hagerstrom’s programme has been seen as an attempt to
improve the doctrines of legal positivism, and this was apparently also how Hägerström himself conceived
his mission. He followed the legal positivists in claiming that it is only by focusing on a study of the law as a
positive fact that the blatant metaphysics of natural law could be avoided. But Hägerström argued that legal
positivism failed in giving a sufficient account of the validity of law. Even if the concept of ‘rights’ was
non-existent, metaphysical and based on an ancient idea of magical forces, Lundstedt still maintained, in his
theoretical writings, that there are some realities that correspond to the concept of ‘rights’, namely a certain
position of safety, which is the result of the regular enforcement of certain legal rules and the psychological
effects this has on the minds of people. But this, Lundstedt argued, is clearly not what is conceived by
‘rights’ in legal theory or in public mind, and therefore it would be better to abandon the concept altogether.
Olivecrona’s Law as fact (1939) has been characterized as a milestone in the development of Scandinavian
Legal Realism. The book was not only a concise and lucid exposition of the Hägerström-Lundstedtian
philosophy, but it also included a more thorough and convincing attempt at a positive reconstruction of legal
science. Olivecrona followed Hägerström’s analysis in claiming that the binding force of law exists only as a
psychological effect of the consistent implementation of legal rules and that a legal ‘right’ is an idea of a
fictitious power. But as the result of these considerations, Olivecrona concluded that the law itself is
essentially organized force. According to Olivecrona, organized force is the backbone of every conceivable
modern community, without which there could be no real security, not even with regard to life and limb.
The modern state, in turn, is an organization that has monopolized the use of force.

American v Scandinavian-Scandinavian legal realist movement shares few features of the approach of the
American Realist movement. The Scandinavians are less concerned than the Americans with the behavioral
aspects and adjudication, preferring to raise questions concerning the nature of rights and duties. The
‘realism’ of the Scandinavians rest in the critique of metaphysics, whereas the American realists are
concerned with a pragmatic approach to legal institutions like courts. The difference of thinking comes from
the fact, that the Scandinavian Realists were trained philosophers while on the other hand American Realists
were, in general, jurists, judges and professors of law.

Ronald Dworkin- Dworkin began (See Model of Rules) by pointing out that Hart is wrong to think that a
judge acts a legislator when the rules run out. For Dworkin (the early Dworkin we are considering here) the
law had no gaps because apart from rules there were also principles. Dworkin said that Hart was wrong in
stating that in cases falling within the gaps, the courts have discretion to make the law, so that in such cases,
involving judicial discretion, the court is not enforcing a pre-existing obligation and as such, no party can
have a pre-existing right to prevail in a case. He complained that contrary to what Hart asserts, there is more
to a legal system than just rules; there are principles, policies and other binding legal standards, which
operate alongside rules. Later in Hard Cases (1975) Dworkin explores the notion of this binding morality
further by introducing the concept of the soundest theory of law and to demonstrate with greater precision
the role-played by moral and political theory in its construction and application. But his conception of
morality was vastly different from that of the natural lawyers. According to Dworkin, what is morally
required could be discovered by finding out what best fits with the soundest theory of law; the soundest
theory of law being that which justifies all existing legal materials of a legal system, namely, the
institutional history, past laws and judicial decisions of a legal system. Dworkin points out that the
institutional history past laws and decisions create a unique morality of their own and a judge in a hard case
cannot be unmindful of that and he has to follow in the footsteps of the past for that is precisely what
morality requires.

According to Dworkin the answer to any novel legal problem is always already there. The judge only finds
it; he never “makes” it. A hard case is where there is no clear legal answer. Dworkin believed the judge does
not have absolute discretion, there’s a force directing him a certain way. Dworkin says that a law, judgment
applies in retrospect also and this proved his point that the law always existed, the judge merely discovered
it. The question is how do we find these answers- Dworkin says that the judge must look at all past cases and
conjure a theory that explains all these cases and whatever fits the theory best is the answer to the question.

As far as rights are concerned, according to him the court is always enforcing pre-existing rights. It’s like a
chain novel (Different authors writing different chapters), so you have the constraints of the previous
chapters. This leads to making only incremental changes and not anything massive. The judge cannot decide
based on morality. He has to take institutionality of the past into account. You treat like cases like for
fairness.

Distinguishes between Goal-Based Strategy and Rights-Based Strategy:

Goal-Based Strategy: Even if the behavior is bad for the community as a whole, just considered in itself,
the consequences of trying to censor or otherwise suppress it would be, in the long run, even worse.
Rights-Based Strategy: Even if the behavior makes the community worse off, even in the very long run, it
is nevertheless wrong to censor or restrict it because this violates the individual moral or political rights of
citizens who resent the censorship. Favoring the Rights-Based Strategy people have the right not to suffer
disadvantage in the distribution of social goods and opportunities, including disadvantage in the
liberties permitted to them by the criminal law, just on the ground that their officials or fellow-citizens think
that their opinions about the right way for them to lead their own lives are ignoble or wrong. I shall call this
the right to moral independence
Justification of the Right to Moral Independence-
Rights are individual’s trumps over a background justification for political decisions that states a goal for the
community as a whole. If someone has a right to moral independence, this means that it is for some reason
wrong for officials to act in violation of that right, even if they (correctly) believe that the community as a
whole would be better off if they did. To some extent, the argument in favor of a particular right must
depend on which general background justification for political decisions the right in question proposes to
trump. Dworkin assumes that the background justification with which we are concerned is some form
of utilitarianism, which takes, as the goal of politics, the fulfillment of as many of peoples' goals for their
own lives as possible. This is the most prevalent background in Western Democracies.

Critical Legal Studies

The Critical Legal Studies movement challenges the received wisdom in legal theory and practice. Critical
legal theorists hold that logic and structure attributed to the law grow out of the power relationships of the
society. The law, according to them, serves to hold in place the interests of the party or class dominant in its
formation and is a set of dogmas, prejudices even, that legitimize the these deep-rooted injustices of society.
As Robert Gordon one of the prominent proponents of CLS argues, ‘what lies behind the seeming order of
legal decisions is a patterned chaos, and the aim of critical legal scholarship is in part to uncover the
patterns’. The influence of 19th century German thinkers like Karl Marx and Max Weber is visible here.
Also clearly discernible is the influence of American Legal Realism with their fight against formalism and
emphasis on the social underpinnings of the law. Remember, Holmes’s famous statement, ‘the life of the
law is not logic but experience’. The Critical Legal Theorists extend this line of thought. The legal order is a
self-serving system in order to maintain power and privilege. The myth is that this system treats everyone
fairly and equally and justly. This position is different from positivism and natural law as what they say is
that there exists universal acceptance or universal agreement as to what law should be. CLS argues that there
is conflict and not agreement with powerful groups, state etc. imposing their will on everyone else. Social
Relations- Value Consensus and Value Antagonism, Value consensus states that there may be conflict but
there is a general agreement surrounding the law and the ability of the legal system to resolve things in a
neutral and just manner, the assumption is that stability is the norm. What we are rejecting is the claim of
consensus. Powerful groups are able to access state power to keep weaker groups in place. Value
Antagonism assumes conflict and tries to explain stability.

Judicial decision-making is a subjective exercise. Realists will say that what will influence the outcome of a
case is not the facts or the law but the judge thus it depends on the judge and his beliefs, status, schooling
etc. Law protects powerful economic interests first. The outcome of a legal dispute is determined by a
judge’s mood, personality etc. This is a direct challenge to positivism (assumption is that judges are rational
and thus decision is also rational). Since judges can interpret the law thus the judges must be motivated by
public good. Since lawyers can predict how a judge is going to rule by examining the behavior in past cases
what they should do is to use that to their advantage and choose their forum wisely. CLS argues that law is
neither neutral nor is value free. CLS theorists has tried to demonstrate the powerful groups have more
access to law making and thus can craft laws as per their interests. Three important aspects of CLS- Law is
politics and can be manipulated to reach particular results. They regard law to be indeterminate, it is possible
to reach opposing conclusions and third law will only change when society will change and thus only when
wealthy and powerful are willing to take into account needs of others. Some form of reform is necessary and
change is needed but they do not agree on how that change should take place.

Amartya Sen and Rawls: Theory of Justice- Rawls Theory of Justice: 1st Principle of Justice- “Each
person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for
others”. 2nd Principle of Justice states- social and economic inequality are to be arranged so that a)
reasonably to be to everyone’s advantage, this is also known as difference principle and b) attached to
positions and offices open to all, this is known as fair and equal opportunity. Fair and Equal Opportunity >
Difference Principle, people are to be enabled to understand and fruitfully exercise the two principals of
justice. Therefore upon carrying the second principle out no one is affected by impartiality. (Veil of
Ignorance) Equal liberty is paramount and cannot be overridden in the name of great social and economic
advantages. He also states in the principle of fairness that we are not to gain from the cooperative labor of
others without doing our fair share. This is the case of reciprocity, maximizing liberty and ensures that
liberty can be restricted only in the case of liberty. This order regulates the basic institutions that recognize
these values. Fair and Equal Opportunity is a passive policy. Principle of efficiency ensures that an
individual cannot make themselves better off at the expense of others. In order not to be inefficient must
strive to do better for them. This also applies to the difference principle- different icons may seem unfair but
if the procedure has been followed then society can believe that they have acted justly. Rawls refers to this
as procedural justice. Rawls acknowledges that inequality is a natural occurrence but like many natural
things civilized society overcomes society can narrow the gaps of inequality. He says, “natural distribution
is neither just nor unjust, nor is it unjust that persons are born into society at some particular positions, these
are simply natural facts, what is just or unjust is the way a society deals with these situations”. There can be
a great income disparity but this must be reflected in the benefit to the worst off. Rawls – to create a theory
– the perfect example of policy against which actual policy choices can be judged, Justice is equal to
fairness/ Equal liberty for all/ Fair equality of opportunity/ Material differences to be justified on the basis
that they benefit the least advantage/ The above can be achieved through institutions. Sen- Not possible
under modern conditions, if justice is defined as a product of contract then the interest of non-contractors
may be neglected. (As societies are not self-contained units –E.g. Environmental degradation. If not the
above the entire world is assumed as a society – which is not possible which is made clear through the
heterogeneity Sen focuses on. It’s argued that in poor countries, people find it hard to argue for political
rights until economic rights are met. Deprivation largely is the absence of entitlement to some good. The
work is contribution and a critique to Rawl’s theory of Justice. Rawl’s aims to create an ‘ideal theory’
against which actual policy choices, etc. can be judged and he defines justice as ‘fairness’. Rawls’s uses the
social contract to generate principles for establishing just institutions in a society. Sen accepts the general
proposition that justice is fairness but has several problems with the Rawlsian model. First, Rawl’s says
justice is a product of an agreement among members of a clearly defined society which in modern day is not
possible. You cannot ignore the interests of foreigner’s, future generations, etc. There is a plurality of right
answers and Rawl’s model does not take into account all the possible answers, the plurality, offered by
society. Sen says that in reality we do not compare a policy against the ‘ideal’ as proposed by Rawls but
against other policies. Sen criticizes the importance placed on just institutions, which says that as long as
you have just institutions you will not need to worry about human behavior. Sen introduces the concept of
niti and nyaya, where niti refers to correct procedures, formal rules and institutions while nyaya looks at the
world as it emerges from the institutions created rather than institutions, i.e. how the world has been shaped
by the institutions. Rawls looks to achieve fairness through the ‘veil of ignorance’ while Adam Smith ask
one to look from the perspective of an impartial spectator. In parts I & II of the Idea of Justice, Sen develops
a theory of social choice, which is different from rational choice theory. Rational choice theory assumes that
individuals will make those decisions, which will be in their self-interest. Social theory assumes that people
will have a reasonable concern for others as well. Part III, he analyses the human capabilities approach. Part
IV he states that democracy is more a decision making by discussion rather than simply elections. Sen
invites us to engage in public reasoning in pursuit of justice in practical terms and reflecting on the
impartiality and fairness of policies. He says we should embrace nyaya rather than niti and our thinking
should be global.

Marxist Jurisprudence- The central idea of Marxist Jurisprudence comes as a contradiction against the
Liberalist-Capitalist approach. In contrast with having a particular pre-supposition regarding the law and
building upon it, Marxist theory challenges and condemns what is perhaps understood to be a liberalist-
capitalist concept of law. This principle approach against the existence of liberalist-capitalist law has been
summed up in three phases; the first comprising of the general terms and theories of Marx as understood and
interpreted world over; the second being the critiques Marxists give to the liberal-capitalist approach of law
and lastly, the criticism of Marxist Jurisprudence itself. Among the general build-up to Marxist
jurisprudence, often recognized have been terms such as alienation and exploitation. While one signifies the
estrangement of the workers from their labor and their product, the other signifies usage of the surplus that is
produced by the proletariat; by another class i.e. the bourgeois. Another important and keenly critiqued idea
by Marx is the relationship between the Economic Substructure (base) and the Ideological Superstructure.
In its shortest description, the base consists essentially of relations of production and the superstructure is
known to comprise of the social and ideological institutions that govern our social consciousness. At this
point, it is important to note that in defining this relationship between the base and the superstructure, three
candidates are proposed i.e. Economic Determinants (the idea that the base is independent from and
precedes the superstructure), Economic Limitations (the thought that incase anything is incompatible with
the base i.e. the economic substructure, it will not be carried through in the superstructure) and lastly,
Economic Practice (this theory includes social practices as a part of the base). Of the three candidates
proposed above, Raymond A. Belliotti rejects the first and the second immediately upon the ground that
these suffer from infirmities. As far as Economic Determinism is concerned, the idea that the base is
independent of the superstructure is not true for it can be clearly established that in case of the non-existence
of superstructure, the base would collapse. As to point of Economic Limitation, Belliotti argues that it does
nothing to further materialize Marx’s point since it contradicts the point regarding Economic Determinism.
The last one i.e. Economic Practice however, is held to be of some (even if minimal) value. Three criticisms
are offered for the same, i.e. first that it reduces the predictive power since social practices will be a part of
the base as well; secondly, it expands the base to include elements that are claimed to belong to the
superstructure i.e. social practice and lastly, it hazes the distinctive line between the base and the
superstructure. Conclusively, it is held that this relationship has little impact on the idea of law that is
proposed by Marx. Also frequently used in Marxist Jurisprudence is False Consciousness i.e. a misleading
consciousness that makes us believe that the interests of the ruling powerful class are in fact, the common
interests of the society. A contradiction between the dominant ideas and the experience of the oppressed
classes leads to an ideological distortion. Belliotti critiques this concept by stating that the argument of self-
consciousness is a roundabout argument because liberal capitalists while refuting Marxists can be
stigmatized as being social conditioned into believing that they are right and thus having a false
consciousness and therefore, it does not hold much ground. Marxism also uses another term i.e. Dialectical
Method. In principle, the method stresses that without conflict, contradiction of interests and antipathy,
society would not progress. It is bad experience that essentially leads to a revolution for the better. Every
thesis evolves into its antithesis and then into a synthesis (its balance). After defining these, Belliotti moves
to the Marxist approach to law i.e. against the Liberal-capitalist idea of law. Two things need to be noticed
here; first is what is known as the Marxian concept of Fetishism. In Marxist sense, Fetishism signifies that
an idea appears to be so inherent and ingrained in our concepts that we don’t realize that in reality, it is the
social and economic situations that are responsible for the presence of the idea in the first place. As far as
law is concerned, Marx has proposed that Fetishism of law in liberal-capitalist regimes is alleged to be
apparent in at least three ways i.e. the necessity of law (the idea that law is a body of principles that can tell
us what is good for the societal interests and what is the worst), the autonomy of law (the thought that law is
independent of the economic substructure i.e. the base) and the desirability of the rule of law (this is
concerned to be the primary culprit in the liberal-capitalist legitimation of status quo as it rules out the
interests of one class of people to support the interests of the other). The second thing of notice is Marx’s
direct hit at the liberal-capitalist phenomenon of law. He critiques it in two arguments. First, he talks about
the functional explanation of the legal system in which he describes law as such a medium of educative
function, that it helps for the dominant ideologies to be accepted by the proletariat easily and in turn makes
them a contributor to their own predicament (i.e. subordination). In this manner, even if the dominant theory
was in itself not fully coherent, law will indoctrinate the theory into the minds of the subordinated in such a
way that the subordinated will not realize the contribution this plays for the subordination. Secondly, Marx
points to the idea of contingency of law and states that when a society has reached its final stage, it will not
need an educative institution such as law to exist and therefore, law will fade with the coming into the
existence of a communist society. Belliotti has concluded by critiquing Marx on two more points i.e.
Marxist view of the function of law. Belliotti claims that Marxists believe that the favored ideologies of the
powerful are already a part of the understood natural order of things. This is not true since capitalist-
liberalist ideology is hardly a solidified group of rules and therefore Law doesn’t only serve to function for
the dominant interests. Secondly, Belliotti points towards the Marxist argument regarding the contingency of
law. Here it is claimed that the idea that law will wither away is misleading for two reasons; firstly, because
even its most final form of communist society, there will be some sort of norms that will exist to administer
the economy and its social life and secondly, that law serves some interests that do not seem to be those of a
dominant community in particular i.e. homosexuality, abortion, drugs, rape etc. In conclusion, Belliotti also
mentions that we must still not completely disregard the Marxian ideas since the purpose of the Marxian
theory was to break the liberalist-capitalist approach that it is the law that holds the society together and
preserves the best of us. His evaluation of law came as a critique to another school of thought and in that
manner; he sought only to contradict what had already been built upon.

Hart-Fuller Debate
The Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart published in the Harvard Law
Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law
philosophy. Appearing in 1958 in the Harvard Law Review, Hart took the positivist view in arguing that
morality and law were separate. Fuller’s reply argued for morality as the source of laws binding power.
Hart’s position- on the one hand Hart held that there is no necessary relationship between a legal system and
the ideas of justice or morality. A legal system can function effectively though it is neither just nor moral.
The Nazi regime would be a good example of this point. It discriminated against individuals on racial
grounds. In Hart’s view it was a legal system. The Nazis argued that racial distinctions were relevant and
reflected the morality of their society. It was, therefore entitled to discriminate and still claim it was treating
like cases alike. Hart argues that the question of what is law must be separated from the question of whether
it is moral or just. Where as Fuller (Natural Law theorist) maintains that law and morality cannot be so
neatly distinguished and that the post-war courts were entitled to hold Nazi rules not to be law. To call the
Nazi system legal and to call its rules laws was a false description of what they were. They were instruments
of an arbitrary and tyrannical regime. Legal theorists can thus be divided into two schools of thought, those
who adhere to positivism and others who subscribe to the natural law theory. The positivists like Hart and
Austin, merely attempt to define what law is, not what it should be, or its content. The natural law theorists,
on the other hand, believe that rules or principles can only legitimately be called law if they conform to an
acceptable code of moral behavior. Limits of the command theory As Hart points out, the command theory,
while authoritative, makes the erroneous assumption that all legal rules make commands or impose
sanctions. There are many laws, which, for example, merely confer rights and are not backed by sanctions.
Hart proceeds to link types of rules with the legal system. He identifies two manifests of rules, primary rules
and secondary rules. Primary rules are those, which any society needs in order to survive. They forbid the
conduct most destructive to the society, such as murder. Even simple societies contain these rules.
Secondary rules are those, which confer power rather than impose duties. They are divided into three types:
rules of adjudication, rules of change and rules of recognition. The first, rules of adjudication, are designed
to allow the society to settle disputes such as legal offences and their sentences. Rules of change are those,
which promote other new rules. A developing society needs to respond to new situations and these rules
accommodate this imperative. Rules of recognition are those, which demonstrate the acceptance of the law
by the society. They thus spell out which rules in the society have legal force. For example, Hart says, the
UK has a single rule of recognition: what the Queen enacts is law. In like vein, we can say that our rule of
recognition in the Commonwealth Caribbean is the Constitution. Dworkin rejects Hart’s theory on rules on
the basis that law contains not just rules, but a set of principles upon which these rules are based. These
principles are the guidelines, which inform the law but do not propose a solution. One such principle is that
no one should benefit from his or her own wrong. We need also to consider carefully the question of the
appropriate functions of law in a society according to the naturalist school of thought. Should law, as the
naturalists would have us believe, seek to reflect morality? This question is particularly pertinent. The
moralists believe that law should not only be moral in it self-but should contain rules which prohibit
‘immoral behavior’. The law cannot divorce itself from these moral values. The belief that law should reflect
morality has spurned some interesting cases. In Shaw v DPP, for example, the House of Lords upheld a
conviction of the offence of a conspiracy to corrupt the public’s morals when the defendant published a
pornographic book. The Court found that a fundamental purpose of the law was to ‘conserve not only the
safety and order but also the moral welfare of the State’. Similarly in R v Gibson, a conviction was obtained
for the common law offence of outraging the public decency when the defendant artist exhibited earrings
made from freeze-dried fetuses. These decisions have engendered much controversy and have been
criticized by those who believe that morality is a private concern and not the business of the law. John Stuart
Mill, for example, argues that the law should not impose its concept of morality on individuals. Individuals
should be free to choose their own conduct, as long as they do not harm others. Certainly, the morality
theories present difficulty. In any society there will be conflicting ideas of what is moral. This is particularly
so in pluralistic societies such as ours. Muslims, for example, allow men to have more than one wife,
whereas Western civilization considers this immoral. We have seen already the conflict between the UK and
its territories over the issue of homosexuality, which those West Indian communities found to be immoral.
In addition, a society’s morals change over time. The much talked about issue of the morality of the death
penalty is one such example, although one cannot argue that there is consensus on the issue. Less
controversial functions of law include public order, social control, and social cohesion, to promote change in
the society, to define rights and duties and to balance conflicting interests in the particular society. Even if
we can identify what law is and what it should be, this still leaves the question, ‘why do we obey law?’ Is it,
as Austin thought, because of the sanctions behind it, or is it, as Hart believed, because we accept it? Would
we refrain from committing murder if there were no sanctions? Perhaps law is obeyed because it is the most
convenient and fair way of organizing any society? We may also obey law because we believe that it is right
or morally correct. This last suggestion leads us to an interesting point. Is there an obligation to obey rules
emanating from the State, which are immoral? There are several examples of these: the Nazi laws of
Germany; the apartheid laws of South Africa; and of course, the slave laws that we discussed earlier. These
were all legitimized by the relevant Parliaments. But did those laws have moral authority? The people who
obeyed such laws may have believed that they were simply obeying the law. In Forsythe v DPP and the AG
of Jamaica, for example, the appellant, a Rastafarian, author and Professor at Harvard University, USA,
unsuccessfully sought legal validation for the utilization of ganja as a sacrament of the Rastafarian faith. He
argued against the validity of legislation, which outlawed ganja in this way: That by defining all marijuana
possession as ‘criminal’ . . . must cause ordinary people to loose [sic] respect for the law thereby. That a law
is valuable not because it is ‘the law’ but because there is ‘right’ in it and laws should be like clothes; the
Laws should be tailored to fit the people they are meant to serve.74This was recognition not only that law
should suit its society, but that it must be based on the moral values of that society which, judging from the
lack of success in this case is demonstrably subjective. The intrinsic morality or immorality of law also leads
us once again, to the discussion of reparations for the slave trade. It is precisely the immoral nature of the
laws.

Hart-Devlin Debate

Devlin and Hart on Legal Moralism- The Wolfenden Report- The Wolfenden Report concluded, “There
must remain a realm of private morality and immorality which is…not the law’s business.” The committee
was commissioned to study some difficult questions about prostitution and sodomy in order to see what sorts
of principles should be put into play so that there was some rationale to making homosexuality illegal
without making premarital sex or certain sex acts performed by married couples illegal. As they saw it: The
function of the criminal law is to preserve public order and decency, to protect the citizen from what is
injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly
those who are especially vulnerable. It is not…the function of the law to intervene in the private lives of our
citizens.

Patrick Devlin: The Enforcement of Morals:

Devlin maintains that “the criminal law as we know it is based on upon moral principle. In a number of
crimes its function is simply to enforce a moral principle and nothing else.” A key issue behind the debate
over legal moralism is the extent to which a moral code should shape our laws. Devlin claims that it is not
possible to set limits to the power of the State to legislate against immorality. What is his argument in
support of this claim? It goes roughly like this:

1. Humankind needs society.

2. What makes a society of any sort is community of ideas, not only political ideas but also moral ideas
about the way its members should behave and govern their lives. (The structure of every society is made up
both of politics and morals, society is held together by invisible bonds of common thought.)
3. Whatever threatens those common bonds threatens society.
4. Society has a right to protect itself against threats to those common bonds. (Society is entitled by means
of its laws to protect itself from dangers, whether from within or without. The analogy to law of treason: It is
no more possible to define a sphere of private morality than it is to define one of private subversive activity.)
5. An established morality is as necessary as good government to the welfare of society. Therefore
6. Society has a right to protect itself against anything that threatens its shared morality.

H. L. A. Hart
Hart begins with a critical examination of Devlin’s view of the nature of morality, especially his “abjuration
of the notion that reasoning or thinking has much to do with morality.” Devlin’s view is based not on divine
commands or rational principles of human conduct but on “real reprobation” and a combination of
“intolerance, indignation, and disgust.” Hart’s basic point: Devlin’s view obscures the points at which
thought is needed before we turn popular morality into criminal law. “Before general moral feeling is turned
into criminal law it is submitted to scrutiny of a different kind from Sir Patrick’s.” Briefly and concisely
summarizing Hart’s critique of Devlin, it might consist of the following points:

1. Hart is more inclined to accept the liberal doctrine elucidated by Mill, especially in regard to harm.
2. We must ask whether a practice, which offends moral feeling, is harmful.
3. Devlin provides no empirical support for the central claim that deviations from public morality threaten
society.
4. He mistakenly assumes that morality is a seamless web.
5. Hart rejects the analogy between treason and homosexuality.
6. Hart employs the analogy to burning of old women for witchcraft to establish the ways in which morality
can be based on ignorance, superstition, or misunderstanding.
7. Devlin mistakenly assumes that society is to be identified with its morality.
8. Devlin mistakenly assumes that there is a shared and identifiable public morality.