24/01/2023

What is philosophy ?
Philos Love
Sopia Wisdom
The one who loves wisdom is called a philosophy
Philosophy contains logic, ethics, metaphysics, and epistemology
Logic questioning the things u have been told
Ethics right and wrong. The part of way of behaving
Metaphysics study of existence. Knowing surroundings.
Epistemology study of knowledge
R V Dudley & Stephens
r v holmes

nisel simaon morality is required for law.

25/01/2003
Judges can bend the law to support morality
Excuseable and justifiable

Doctrine of necessity
Dudely Case read

Role of public oppion

Social intrest social natre

What is legal system ?

Based on the constituin the parliament andminstartors and judge and subjects
For the concept of law: HLA Heart/Hard

Why do you follow the law?

Human vulnerability
Ola telis case
Limited altruism: no interest in helping others
Shiv Nadar
Approximate reality
Limited understanding and strength of will can be made part of human
vulnerability.
38,39 principals of policy to be followed,39A free legal justice

Rousco count

Ethics it is from the perspective of a society on wrong and right

Morlas are from the individual view on wrong and right

Jim crow laws

31/01/2023
Natural law school : morality and ethics
Sir Thomas Erskine holland
Is international law a law or not?
Jurisprudence is to study law
Art 13 of the Indian consti defines law
Hebert heart
Why is something called supreme law as it is based on the truth.

Chankaya administrative law

Dharma based on truth
Evidence based witness
Customs based on acceptance
Promulgation of law

Rikary rules : defines ryt and dutie

Secondry rule: recoginise ryt and duties

1/2/2023
Positivism
HLA Heart. : law is a combinatipn of rules. The secondry rule is the indi consti.
General law has to be consistent with the supreme law. In inda supreemen law
is the costi of india.
Internatinla law is a set of rules.

Pactasunt Servanda it means promises must be kept.

Hugo Grotius

Jus Cogens : no crime against humanity

Thomas Ericson Holland

Oppnheim
Community is importanta and the community concent are needed to reulatethe
human behaviour.

Jeremy Banthom ( positivism) the principles of morals and legislation

Institute of international law Belgium
League of nations
Covenet of the league of nations
State of the perment code of inetrnation justice
General act for the passific settlement of international disputes 1928
General treaty for the renunciation of the war.
Unga and unsc were formed.

2/2/2023
Unctral, who etc
Kulbhushan jadav case
Was arrested by pak.
Chrges spy and terrorism
International law is a law.
36 of vena
Nurenburg trails
Tokyo trials

3/2/2023
Neurember place in germnaay
Usa uk ussr France.
World war 2 another trail was Tokyo trial. There were around 29 to 20
defendents.
Art 142 indian consti

7/02/2023
Sinec veneone
Theories and schls of law
Content ( natural law)
Form ( positive law)
Function ( realistic school/ realism schl)
How different laws framed in a city ( rules in a system how thy become law ) (
rule)

Natural law theory: law is the dictate of reason. Which applies logic before
making the judgement. Stoids gave stoidism. Stoids are followers of stoid.
Three stages
Classical stage :
Medical stage:
Modern stage:
Dredscoot V Sanford 1857
The most painful self inflicted wound was this case.
Adem Jabalpur V shukam Shukla
There exist objective actually and tangible principles as distinguish from
subjective moral principals.
They depend on the essential nature of the universe.
These pprinciples can be ddiscovered by natural reason.
They are nessoryly valid because they are logically connected.
Ordinary human law is a truly law only to the extent it confirms to these
principals of the nature of law.
Man made law contract to natural law is no law. It is an abuse of law.

9/2/2023
Natural law:
Art 352 (2) states that the president can declare an emergency.
Art 359 (1) states that during an emergency the state can suspend artt14,21,22.
Jabalpur case whether the state has the right to detain persons unlawfully.
Justice Bhagwati, hr Khanna, day
Jabal pur for unlawful detainment.

Maintance of security act

Man made law is contrary to natural law.

As putan swamk.
Life and personal liberty are unnailenable.
Life and liberty are primordial rights in keshavanda Bharti.
Thehuman element in the life of the indivisual.
Neither life or liberties are bounties of the state neither does the constitution
deem them with the pwer.

Justice hr lhana was right to hold that right to life and property does not demune
the existance of theat right.
10/2/2023
Dred scoot sanford
Can a Nigro become a member of the political community?
Will the salves become a part of the community
They think that they were not included or considered to be included and
therefore cant claim the rights and privilagges provided for all citizes of usa.
On the contrary they were at that time considered a subordinate and inferior
class of beings who had been subjugated by the dominant raise. And whether
emancipated or not yet remain subject to their authority, and had no rights or
privileges under the us constitution.
Roger tanning SC Chief justice.

15/02/2023
Fundamentals of jurisprudence DR. S.N Dhyani read
Upanishas say protect dharma and dharma will protect you. Dharma is rule of
reason
Doctrine of matsya nyaaya
8 fold morality
Right view right aspiration, right speech, right conduct

22/02/2023
Mediva period
Besawana Indian thinker
St, Thomas Aquinas (western thinker)

Why this period is called medival eriod

Need for preserving the stability in this system.
Depicts extreme religiousness

Baswanna spoke against sacrife human and animal, his slogan work is worship,
Anubhao mantap: one of the principals of democracy.( expeincie pavilion)
Bhagti margva: was followed to attain salvation. One person chooses a personal
god and is dedicated to it. For basawrna it was shiv. No strict religious ruteen. It
teaches u to think good about other, live harmously, have a positive view of
self, not be a fault finding person etc.
Human sacrifice: narabali
St. Thomas
Summa theologica book by him
Natural law follower
Belives in god

23/02/2023
St. Thomas Aquanius an itaian priest and theologian
Order causation procreation is done by god
Natural is the particaipation in enternal law
Lex eternal : it is god’s law. It is known to god only. It will not entirely be
known to human beings. The whole law maybe known by a few human beings.
It is reason that is the bridge between natural law and lex eternal.
Lex divine : it means scriptures. Not 100% right
Lex humans

24/02/2023
Modern national law theory
Social contract theory

Thomas Hobbes (1588-1679)

Levadhan : is a metaphor for sea monster( it is there in the bible) the monster is
powerful.
State of nature
Man’s natural relm
Surrender of rights
hobbesian theory: According to Hobbes, human beings are naturally selfish and
competitive, and in a state of nature, without any government or authority to
regulate their behavior, life would be "solitary, poor, nasty, brutish, and short."
In this state of nature, individuals are in constant conflict with each other over
limited resources, and there is no security or protection for anyone.
Simple
Hobbesian theory is a political philosophy that argues that people are naturally
selfish and violent, and that this leads to a state of constant war. To avoid this,
Hobbes believed that people should give up some of their individual rights and
freedoms to a strong government or ruler in exchange for protection and
security. This government would have absolute power and authority, and the
people would be required to obey its laws and rules. Hobbes believed that this
was the only way to create a stable and peaceful society.
Soverign
Legal implications of Hobbes theory
Sovereign is an absolute monarch and cant be questioned
He belived in a society there should be a secular foundation.
Social contract:
Social contract theory is a way of thinking about how people come together to
form a society. The basic idea is that people give up some of their individual
freedom in exchange for the protection and benefits of living in a community.
This means that everyone agrees to follow certain rules and laws that are
designed to keep people safe and ensure that everyone is treated fairly.
According to social contract theory, governments are created to enforce these
rules and protect the rights of individuals within the society. The idea is that by
working together and following the rules, everyone can enjoy a better quality of
life than they would on their own.
In short, social contract theory is a way of understanding how people give up
some of their freedom in exchange for the benefits of living in a society with
rules and laws that protect their rights and promote their well-being.
Three thinkers
Thomas hobbes 17th centuary
John locke
Jean rouso

Questions to be kept in mind

By what right does the government exerrsize its power over its citizens
A: Social contract is between citizen and state the contract is between the
citizens and the ruler.
Social contract theory is a political and moral philosophy that explores the
origin of government and the nature of the relationship between the state and
individuals. It argues that individuals in a society agree to give up some of their
freedom and abide by certain rules and laws in exchange for protection and
security provided by the state.
Hobbes ( he is called absolutist)
In the state of nature, people have no rules or laws to govern their behavior.
They are free to do whatever they want, including killing or stealing from each
other. This creates a state of constant war, where life is "solitary, poor, nasty,
brutish, and short."

This contract is an agreement among individuals to give up some of their rights

and freedoms in exchange for protection and security provided by a
government.

Hobbes believed that the government should be an absolute monarchy, with all
power concentrated in the hands of a single ruler. This ruler would have the
authority to make and enforce laws, and to use force to maintain order and
stability.

In summary, Hobbes' social contract theory states that people are naturally
selfish and violent, and that they must give up some of their freedoms in
exchange for protection and security provided by a government. The
government should be an absolute monarchy, with a single ruler having all the
power to maintain order and stability.

Whether citizen has a natural right through which he has to participate in the
mainatnace of good governce.
A: yes, with the due process estd by law, which will be for the common
benefits.
What are the natural rights of the citzens confronted by a government in
exersing his natural rights
Is there a point at which a citizen may invoke a right to rebel against a
governemt, especially that circumastnace to be depriving his natural right.

28/02/2023
Legal positivism is a school of thought in jurisprudence that emphasizes the
importance of the law as a separate and distinct entity from morality, religion,
or other social values. It asserts that the law is a set of rules created by a
legitimate authority, such as a government, and that its validity is determined
solely by its source, rather than by its content or moral worth.
According to legal positivism, law is not inherently moral or just; instead, its
validity is based on whether it was created and enforced in accordance with the
established legal procedures of the relevant legal system. This means that even
if a law is unjust or immoral, it is still valid as long as it was created and
enforced by a legitimate authority in accordance with the legal system.
Legal positivists argue that the law must be studied and understood in a
scientific, empirical manner, with a focus on its formal structure and the way it
is created and enforced. This approach emphasizes the importance of legal
precedent, legal rules and procedures, and the roles of judges, legislators, and
other legal authorities in creating and interpreting the law.

It means too affirm something exists.

Austin law is command of the soverign backed by sanction.

Austin said
  sancation can be evil and deterent
 the goal of law is to achive a rational, coherent, and defendable rule.
 We follow law as it is and not how it should be. The law changes because
of the society and the people.

Heart V Fuller debate read

Bentham is sanction is positive as it motivates a person to perform desireable

behavior.

2/03/2023
John Locke (1632-1704)
 His state nature
 His social contract theory
 Pactum uniois
 Pactum subjectionis
 The contract btw no arbitrary power
 The fiduciary nature of govt
 Ryt to property
 The labour of his body and the work of his hands are properly his

The state of nature is a hypothetical philosophy. The state of nature changes

from thinker to thinker.

John locke state of nature, is blissful. The reason for this is the glorious
revolution 1688.
 Intro of consti monarch
 World constti was magna cata and bill of rights( it defined the power of
ruler, power right of parliament, power and right of ppl)
 2 tries of government 1690. ( mentioned in LV Curzon)
 Pactum uniois: social contract is to protect inalienable rights. Forming
society
  Pactum subjectionis : appointing government. Giving our powers to the
government to protect our rights and life.
 Here we surrender rights, but only giving of rights.
He belived ppl should be non violent.

3/02/2023

Rousenue (1712-1778)

 His state of nature

 His social conduct
 Individual is everywhere in chain : live simply and thnn u will be free from the chains of
greed.
 Civilisation is responsible for this state of affairs : when u think too much u cause violence.
World wars were started by the west nothing by asia and Africa.
 Law is a general will : ppl give their authority the power to make laws.here he refers to the
direct mode of democracy. Eg: Switzerland
 General will and soverign :
 Majority vote : general will is the majority will.
 Delegation and surrender : giving and delegating stand for the same thing.
 Indiviaual is forced to be free : indivisual is free means that the majority indivisual will is
general will. Force is required for the larger intrest. It keep s the majority free. Force is
positive term.
 Sovereign state and government

Human natre: human ics good, innocent, no bad thoughts, but cuz of more thinking we get
corrupted.

Social contract was needed as we thought a lot about oursellfs and to prove tht we started to fight
and we needed an authority.

15/03/2023

Legal positivism : john Auston

Classification of law check phn for flow chart

Legal positivism means how

Expositorial juris: how it is

Cencorial : law ought to be

Legal positivism is abt practicality given by jermany banthom.

Father of this subject not decided.

Common law was based on justice and morality.

Banthom critisedd the common law. Legal positivism called systemised school of law.

The house of loards were iuncertain today something was a right but tomorrow no. legal positisim is
needed to get the stability and certainity

Province of jurisprudence.

John autsom called naïve jurist, hla heart demoloisged austin. Heart says ppl follow law as they have
an inner urge to do so. Law applicable only when ther is sanction.

Gunman theory

Subject matter of jurisprudence is to study the laws.

International law by analogy.

16/03/2023

Jeremy betham 1748-1832

Doctrine of ultilaterianism

Defines virtutes/good in terms of utility

The greatest happiness of greatest number.

Epicurianism: founded by epicurean. Belived in only sensual pleasures.

Chasavaka/karvaka: also sensual pleasure.

The quality of an action dependent upon the around of pleasure to be derived from it

Positivist wanted to remove moratilty from law.

Laws properly so called

Law by metaphor.

17/03/2023

Consequentialist : would look at morality in the end result ( Jeremy bantham )

Categorist: emalue kant locate duty in the fundament right or duty.(it has to be in the doing of the
actions)

Pain and pleasure governs all of us: bantham

(Refer to book: L V Curzen)

Principle of utility subjects us to pain nd pleasure.

Utilitarian ac Bentham.

The utility is that property in any object where by it tends to produces benefit advantage pleaure
good or happiness to prevent the happening of mischief, pain, evil or unhappiness to the party whos
intrest is considered. It maybe happiness of the community or happiness of the indivsual.

Legislation is the foundation of utility( means benefit, happiness)

Law for Bentham: aw is an assemblage of signs declarative of a volition(voluntary is free to make

laws) conceived or adopted by the sovereign in a state concerning the conduct to be observed in a
certain case by a certain person or a class of persons who in the case in question are or are supposed
to be subject to his power.

Who is sovereign by Bentham

Any person or assemblage of persons to whose will a whole political community are supposed to be
indisposition to pay obedience and that in preference to the will of anyother person.

29/03/2023

Non fragment: a particular state shall not deport the citizens of another state who have fled fearing
persecution.

Quantify Pain and pleasure

Hedonistic/ felicific calculus

 Intensity : degree of happiness how much % of happiness brought

 duration : how much long time it give pleasure
 certianaty: if you have doubt as to how certain the laws. are there will be no happiness.
 propinquity: not too remote
 fecundity : should not be just once it should repeat.
 pureity : without pain get most pleasure
 extent : Cover more and more people in number.

21/3/23

Realism schl: whatever is really is there. Law keeps evolving they accept that. the law is as it is.

The profercies of what the court will do in fct & nothing pretncious is what I mean by law. Oliver
Wendell. A bad man cnt tell wht is law only a judge society cn..
Law is nothing more than its practical effects (as enforced by judges) and those are affected on
others by the law.

24/03/2023

Gd 20 mm

 Content
 Communication
 Analysis
 Others : how much u agree and disagree

R1: each member speaks for 2 mins (everyone can give concluding remarks)

R2: Open for the discussion

R3: Concluding remarks

U have to divide the main topic into 10 sub topics

26/03/2023

The judgement of the judge depends on the psychological factors.

Courts profersies is what I mean by law. Nothing more nothing less. By oliver.

Karl Llewellyn

Realism is not another school by it is the left wing of the soicloiagl school.

He defined law as a complex institution. this institution not only has a body of rules based on a large
number of principals but it also uses precedents and ideology its contains many practices,

Jerome frank. Is a legal skeptic

RXf=d

r= rule

f=facts

d= decision
Law: actual and probable

Actual law is a particular pervious ruling pertaining to that scenario.

Probable law is an educated prediction about a certain future ruling. ( u think thi slaw might happen)

2 skeptics:

Rule and facts skeptic:

According to Jeremy bantham

The state has to work toward

 Security
 Subsistence
 Equality
 Abundance

31/03/2023

Hla Heart

A soft positivist

According to him some quantum of morality is required with law. Law and morality cannot be
separated.

Minimum content of NL (natural law): it is decided on the basis of facts and cirumanstances

Human vulnerability :

Approximate equality

Limited alltrusims

Limited resources

Limited understanding

Law is the union of two rules : primary rule and secondry rule

Being obligated and having an obligation :

Social habit and social rule

Internal aspect of law

5/4/23

HLA Heart

 Habit and rule : interanal a spect of rule

 A critical reflective attitude to that pattern of behaviour as a common standard
 Criticism, regarded justified, normative vocablory, desire to maintain pattern as a pattern
 What is law?
 Primary rules: only duty imposing
 secondry rules : when there is union of primannry and secondry rules there is law.
Secondry rule address :
 rule of adjudication
 rule of change
 rule of recognition.
 Pre legal system : only talks about duties and obligations
 Ineficancy
 Uncertainity
 Static

11/4/23

Reasons for Emergence of sociological school

ihering

12/4/23

Hans kelsen ( autrian jjurist drafted the autrian constitution and drafted the bill of rights of amarica)

 Pure theory of law : law is a system of coercion imposing norms which are laid down by
human acts in accordance with a constitution the validity of which is presupposed if it is on
the whole efficacious.
 Why pure theory :
 Natural law rejected
 The essential of pure theory :
 The technique of coercion keeps the social organisation as one.
 Norms: regulate human conduct. It is a standard of behaviour which is presceibed by
a system. In a standard when disceted we have actions and consequences. Heirachy
of norms needed for the smooth function of any organsisation. As we go downward
the norms then we find conreate norms but when goig up there is abstract norms.
 Human acts : positivism is the intervension of human beings. The humans set these
standards
 Constitution: it embodies the dream and aspirations of the people. Th highest norm
that we cannot climb is the constitution. It is the grund norm.
 Presupposed: all the people are having to follow it. It is believed / understood that it
is accepted.
  Whole efficacious : how it has been accepted and how respect has been given to it .
 The whole definition is there in the Indian constitution.

 The place of justice in the pure theory
 The norms
 Source of norms
 A delict
 The hierarchy norms
 The validity of norms
 Concretisation of norms
 Grund norms: the basic norma or the basic norm is the basic or fundamental norm
 Criticism : there is only heirachy of law and no sociligical presepetive. There Is no justicie.
Grund norm is a myth.

Jurisprudence is focus on normative science, less desriptive science.

There is nothing like scarid rights he is a potivist and rejects he natural law theory .

Delict: a wrong that is committeed. The norms are addressed to ht eofficals of the state in most of
the cases. When the wrong is commiteed. Officcials of the state must obey and accept these norms.

SOCIOLOGICAL SCHOOL

Roscoc Pund

 Law as social engineering : Sociological school is called the right wing of functional school.
American realism is the left wing of the functional school American realism tells that the
intrpreation by the court is the final law. The legislature executor judge and jurist are the
ones who will balance the intrests of the people.

 Theory of social interests : law should work on the diff interests. These interests should be
balanced. he legislature executor judge and jurist are the ones who will balance the intrests
of the people. You must know what is a

o rule : which is given to be applied to a particular a situation with a consequence

o principal : a fundamental truth is called on the princiapal. Rules are based on the
pronciapls.
o concept and: ideas we get from different jurist. They look at all types of laws and
come up with a good idea to manage the interests of the people. Jurists aree
important for him. He believes the other three are all influenced by the jurists.
Jurists can shape the thinking of the people and their future.
o Standard : plays an important role in balcing intrest. The standard lays the yardstic
that helps ppl balcne their specific intrests.
  What Is an interest ? : defined as an aspiration, expectation, want and demand of individual
or grp.
 Classification if interests :
o individual : as individual there are lot of intrests some are
 personal freedom of speech and expression, right to prvt defense for safety,
property if a personal intrests.
 domestic and : as a family what aspirations you have.
 Substance: property for an indivusal. Movable and immovable property.
o public and : this si broader like individual is concering just a sate of india or a family
in a society in india. But public is like the whle national intrests. Like economy, food,
safety
o social: subsect of public intrest. Smaller thn public intrest, concerns a particular
community
 Conflict of interests : sec 144 crpc doesn’t balnce the intrest of people. But the mandate of
peaceful protest is good.
 Balancing of interests : legislature executor judge and jurist work to manage the intrests of
the individual intrest public intrest and the social intrest. They reconcile their differences for
the work they have to perform the work in such a way that there is less friction and more
efficacy.
 Jural Postulates ( recognition of new intrest) : when we see an intrsts that is in conflict with
other intrest then we take away the others intrests. Eg politician.

Anuradha Bhashina 2020 on sec 144 read again

Sociological school is called the right wing of functional school

20/4/23

Historical schl

F K V Sav

Law of national character

Peoples spirit

Internal silently operating

Legislation of susidariiy importance : they are subsidiary to the religious laws.

Law shall reflect need of the people

Sir henry Maine

Stationary society : he gave 6 statges

Stage of commands:

Stage of customs: they were started a long time ago and they contd it making it a custom.
Stage of codes: no change in this, but everthing is written as writing was just invented. The society
which stops here is called a stanggant state or society.

Stage of leal fictions: we presumen and assume there is such a thing.needed for convince.

Stage of equity : not following the law through justice equality and good conscious.

Stage of legislation:

Prospective society

Movement from status to contract

There are certain customs that are followed by the mandate of religion. There are some reilgous
mandates that people follow. Between these two lie the laws. People do not want to change these
laws.

Historical law schl came against natural law and postivist law schl.

Defining law theough the historical way.

Montesque said law is utlimtely based on the geographical location, the people’s aspiration

Law is based on the peoples spirit nad is rep throught the lawd of the nation.

Fundamental duty

Protect and promote our rich heritage.