JURISPRUDENCE

On (being) boring

To bore is to dig,
to probe under the surface, to uncover that which has been hidden,
to view that which has not been previously seen

Jurisprudence is an activity that bores into law bores beneath its surface

A “jurisprudential” question differs from a “legal” one because it peers behind the
‘legality’ of the law.

What is law ? (and why should we care)

Identity question: What properties does the law necessarily possess by virtue of
being law ?

Something is law because... (Austin)

Implication question: What necessarily follows from designating something as

law ?
In order for something to be law...(Hart)

Plato’s dilemmas

May we ask for a proof that laws deserve allegiance ? (The relationship between
law, morality and authority)

Are we forever bound by the customary usages of the city ?

Pindar the poet declares, “Nomos is the King of all”

Nomos is the confluence of law, violence, sovereignty (sovereign is the point of

indistinction between violence and law)
On being (un)fashionable

Rules of the community or the ‘law of fashion’

From Plato we are prompted to ask if it is possible to have an “external” rationale

to a particular set of rules or laws ?

Centuries later, the same dilemma perplexes HLA Hart!

“Florals? For Spring? Groundbreaking!

Hart’s ‘Internal’ and ‘External’ Points of View

the view of one who, having observed the working of a traffic signal in a busy
street for some time, limits himself to saying that

when the light turns red there is a high probability that the traffic will stop. He
treats the light merely as a natural sign that people will behave in certain ways, as
clouds are a sign that rain will come. In so doing he will miss out a whole
dimension of the social life of those whom he is watching, since for them the red
light is not merely a sign that others will stop: they look upon it as a signal for
them to stop, and so a reason for stopping in conformity to rules which make
stopping when the light is red a standard of behaviour and an obligation. To
mention this is to bring into the account the way in which the group regards its
own behaviour. It is to refer to the internal aspect of rules seen from their
internal point of view.

The external point of view may very nearly reproduce the way in which the rules
function in the lives of certain members of the group, namely those who reject its
rules and are only concerned with them when and because they judge that
unpleasant consequences are likely to follow violation. Their point of view will
need for its expression, 'I was obliged to do it', 'I am likely to suffer for it if . . . ',
'You will probably suffer for it if...', 'They will do that to you if...'. But they will
not need forms of expression like 'I had an obligation' or 'You have an obligation'
for these are required only by those who see their own and other persons' conduct
from the internal point of view. What the external point of view, which limits
itself to the observable regularities of behaviour, cannot re- produce is the way
in which the rules function as rules in the lives of those who normally are the
majority of society. These are the officials, lawyers, or private persons who use
them, in one situation after another, as guides to the conduct of social life, as the
basis for claims, demands, admissions, criticism, or punishment, viz., in all the
familiar transactions of life according to rules. For them the violation of a rule
is not merely a basis for the prediction that a hostile reaction will follow but a
reason for hostility.

The internal point of view is that of a member of a social group who accepts the
rules and uses them as guides to conduct

Hart posits the difference between the statements, ‘I was obliged to do it’
(external) and ‘I had an obligation/You have an obligation’ (internal).

Hart’s ‘Internal’ and ‘External’ Points of View

1. Assuming that people are free to adopt an attitude in relation to rules, people
may
Have simultaneously internal and external view on rules
Having an internal view may still require following different and contradictory
rules (religion and law)

2. People may not be free to adopt an attitude if

they are excluded from the beginning i.e. refugee, queer, trans, non-binary (camp is
the nomos of modernity) they are simultaneously included and excluded

On the ‘point’ of view

Plato’s insistence on an objective reality beyond the material world informs the
positivist

enterprise to define/delineate law from ‘non’ law. This project must always fail!
Law ‘is’ posited as a distinction between inside and outside. It posits a ‘certain’
boundary We may interrogate the locations from which this ‘inside’ and ‘outside’
is determined.

“I am where I think” - ‘Locational thinking’ or ‘standpoint epistemologies’ enable

this interrogation.
Plato the jurisprude

Plato is regarded as being part of the natural law tradition

Plato believed that there are ideal forms in nature and things have essential
attributes.

Everything is subordinated to the stability of the state. So despite the

acknowledgments of the hegemony of custom, it must be upheld.

Inaugurates the tradition in which to define a class expression such as law is to

state an inherent fact about the world as it is

How is law possible ?

What facts ultimately determine legal authority ?

Why is the Constitution of India considered legally binding ?

What law empowers the constituent assembly to frame the constitution ?

What rule empowers people to elect the constituent assembly ? What rule
empowers someone to frame that empowering rule ?

The existence of this ultimate authority can be derived from social facts or
moral facts.

Chicken - Egg Problem

Eggs - Norms that confer legal power

Chickens - Those who have power to create legal norms (authority)

The Analytical Fashion

Solutions can lie in identifying either an ultimate authority stating any

authority in a legal system will derive its power from this

ultimate authority or by identifying an ultimate norm that confers powers to

create legal norms.
Legal facts are not ultimate facts, they are ultimately determined by social
facts (and for natural lawyers, social facts and moral facts)

Social facts: Legal officials and institutions apply the constitution as a

conclusive means to determine legal disputes.

Judges use the Constitutions as a higher law that governs all form of
authoritative enunciations.

Social facts allude to what people think, claim, intend, say, or do.

The (im)possibility of constitutional justice

Can a Constitutional order posited as a means

to achieve justice can itself be unjust ?

Analytical Jurisprudence posits that constitutions constitute a ‘higher law’

All authoritiative legal enunciations and performances can be traced to this higher
law.

The founding act of making the constitution is usually preceded, even

accompanied by collective political violence and the foundational violence thus
inaugurated is reiterated in constitutional unfolding/development.

Constitutional justice occurs only within this boundary.

Back to boundaries

A core analytical function is to draw a boundary between ‘law’ and ‘non-law’.

As positive, law in its self-validating authority, simply ‘is’.

It does not need anything ‘outside’ of itself to be valid.

Yet, the ‘outside’, is already ‘inside’, but circumscribed.

Certain features of analytical jurisprudence and ( western ) legal thought

 Insistence that there are ideal objects, or “forms” which make up an

eternal reality

 A direct, unmediated, contemplation of ideals is the essence of

philosophical endeavours.

 This attitude is detected in writers like Austin who try to define law properly
so called, Kelsen who would try to define the essential structure of a legal
system

 A 'paradox of sovereignty’ lies at the basis of modern western law and

politics, with the sovereign being located both within and outside of the
legal order at the same time.

 Paradox, perplexity, elusiveness marks western legal thought concerning

sovereignty and (human) rights.

 Posits a distinction between the natural sphere and the human sphere
(Natural law v Positive Law) concealing the creation of the ‘natural’ as a
consequence of social and cultural conditioning

Origins of Naturalism v Positivism

That order did not come from God.

Justice, that dwells with the gods below, knows no such law. I did not think your
edicts strong enough to overrule the unwritten unalterable laws
of God and heaven, you being only a man. They are not of yesterday or today,
but everlasting, Though where they came from, none of us can tell Guilty of
their transgression before God
I cannot be, for any man on earth.

Antigone burying Polynices

Features of Natural Law

It is a universal law

It is a higher law (it is self-evident and not derived from anything or it comes
from god)

It can be discovered by natural reason (refers to human mind and intrinsic

human nature, it has nothing to do with natural environment!)

Classical Naturalism Thomas Aquinas (13th Century)

Wrote Summa Theologica and made two points about the relationship between
human (positive) law and natural law

Humans can discover law by natural reason

Human law which contradicts natural law is not law since it was not derived from
natural reason.

This discovery can be through direct deduction or particularised application of

general law.

Aquinas thus throws a cloak of moral sanctity over positive law. His expositions
are bound up with the Catholic faith, he was a catholic priest.

lex injusta non est lex

“an unjust law is not law”

What does it mean to say that human law is not law if it is contrary to natural law ?

For Aquinas, this means that unjust laws do not have the same moral force or
offer the same reasons for action that come from laws consistent with “higher
law”.
What implications follow ? Aquinas stated that that a citizen is not bound to obey
“a law which imposes an unjust burden on its subjects” if the law “can be resisted
without scandal or greater harm

Austin wrote: “Suppose an act innocuous, or positively beneficial, be prohibited

by the sovereign under the penalty of death; if I commit this act, I shall be tried
and condemned, and if I object to the sentence,

that it is contrary to the law of God . . . the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of
which I have impugned the validity.”

Neo - Naturalism John Finnis (20 th Century)

Finnis’s work is an explication and application of Aquinas’ views

There are basic goods (things one values for their own sake life, health, friendship
etc )

Choosing amongst basic goods requires making moral choices.

the move from the basic goods to moral choices occurs through a series of
intermediate principles, which Finnis calls “the basic requirements of practical
reasonableness”.

Disobeying an unjust law if it threatens the entire legal system is undesirable

because the purpose of the legal system is to further the common good.

Finnis makes an important amendment to Hart’s approach. He argues that in

doing legal theory, one should not take the perspective of those who merely
accept the law as valid

(Hart appears to include even those who accept the law for prudential
reasons. Rather, the theory should assume the perspective of those who accept
the law because they (in a just legal system) believe that valid legal rules
create (prima facie) moral obligations.
Does natural law prohibit “unnatural” sex ?

Evans v Romer (1994 Colorado District Court)

Plaintiffs challenged Amendment 2 to the Colorado Constitution-which forbade

any state agency from giving any special protection i.e. through anti-discrimination
law to homosexual, lesbian, or bisexual individuals.

John Finnis for the defendant argued that western legal and philosophical tradition
demonstrates a non-biblical civic antipathy towards homosexual congress.
Finnis was relying on an interpretation of Plato’s laws where can be found several
"unmistakably clear" attacks on the "unnatural" act of sodomitic congress. Plato
made very clear that all forms of sexual conduct outside heterosexual marriage are
shameful, wrongful and harmful.

Opposing him was Nussbaum who argued any natural law theory-such as that
advanced by John Finnis-that "condemns gay or lesbian sexual conduct and
relationships as a violation of natural law or natural human good.., is
inherently theological”.

What is “(un)natural” ? Natural is what is self-evident or we can say “normal”

Is what we see as “natural” already a result of our social and cultural conditioning?

Whose idea of reason does natural law represent ?

Human beings do not, in fact, live particularly "natural" lives. That seems to be the
entire point of “civilisation”. If something is in fact “natural”, why is their need to
make elaborate laws and systems to keep it in place ?

The invention of “discovery”

Sir, As I know you will be pleased at the great victory with which Our Lord has
crowned my voyage, I write this to you, from which you will learn how in thirty-
three days, I passed from the Canary Islands to the Indies with the fleet which the
most illustrious king and queen, our sovereigns, gave to me. And there I found
many islands filled with people innumerable, and of them all I have taken
possession for their highnesses, by proclamation made and with royal standard
unfurled and no opposition was offered to me.

Christopher Columbus, ‘Letter of Columbus on the First Voyage’, in Cecil Jane

(ed. and trans.), The Four Voyages of Columbus (New York: Dover, 1988),

Secular Natural Law and the Law of Nations

“it is immaterial that all the Indians assent to rules and sacrifices of this kind and
do not wish the Spaniards to champion them.”

“And so when the war is at that pass that the indiscriminate spoliation of all
enemy-subjects alike and the seizure of all their goods are justifiable, then it is
also justifiable to carry all enemy- subjects off into captivity, whether they be
guilty or guiltless. And in asmuch as war with pagans is of this type, seeing that it
is perpetual and that they can never make amends for the wrongs and damages
they have wrought, it is indubitably lawful to carry off both the children and
women of the Saracens into captivity and slavery”

and this is especially the case against the unbeliever, from whom it is useless ever
to hope for a just peace on any terms. And as the only remedy is to destroy all of
them who can bear arms against us, provided they have already been in fault

“the Indian -- possessing universal reason and yet backward, barbaric,

uncivilized -- is subject to sanctions because of his failure to comply with
universal standards. It is precisely whatever denotes the Indian to be different --
his customs, practices, rituals -- which justify the disciplinary measures of war,
which is directed towards effacing Indian identity and replacing it with the
universal identity of the Spanish. These sanctions are administered by the
sovereign Spanish to the non-sovereign Indians”. (Anghie)

A break from God ? (16 - 17 th century)

Francisco Suraez emphasized that “nature” is the knowledge of good derived from
human nature
Hugo Grotius’s natural law contained rules based on reason that constraint
governments which offered the groundwork for Locke and Rousseau

Natural rights were based on the necessities of life and political authority not from
God

‘is’ and ‘ought’

Positivists allege that the deduction of ‘ought’ (prescriptive) statements from ‘is’
(descriptive) statements is illicit.

Positivists claim to focus on the descriptive “is” and enquire into law as it is and
not what it ought to be.

However, the effective separation and suppression of what is ‘legal’ from other
matters is in itself a political gesture. Ex- Vitoria’s creation of what is secular
natural law.

The separation of law and non-law is a political separation authorizes a notion of

jurisprudential correctness. We will continue to explore this.

Law and Morality Lon L. Fuller

“To me there is nothing shocking in saying that a dictatorship which clothes

itself with a tinsel of legal form can so far depart from the morality of order,
from the inner morality of law itself, that it ceases to be a legal system’”

“Certainly there can be no rational ground for asserting that a man can have a
moral obligation to obey a legal rule that does not exist, or is kept secret from
him, or that came into existence only after he has acted, or was unintelligible, or
was contradicted by another rule of the same system, commanded the impossible,
or changed every minute. It may not be impossible for a man to obey a rule that
is disregarded by those charged with its administration, but at some point,
obedience becomes futile – as futile, in fact, as casting a vote that will never be
counted.”

• Eight features of the internal morality of law: (P1) the rules must be expressed
in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must
be prospective in effect; (P4) the rules must be expressed in understandable terms;
(P5) the rules must be consistent with one another; (P6) the rules must not require
conduct beyond the powers of the affected parties; (P7) the rules must not be
changed so frequently that the subject cannot rely on them; and P8) the rules must
be administered in a manner consistent with their wording.

Fuller presents a procedural version of natural law based on his understanding of

law as purposive enterprise that enables social coordination rather than one-way
projection of authority.

Recap: Natural Law Tradition

th
 Aquinas (13 Century )

th
 Vitoria (16 Century)

th
 Finnis (20 Century)

th
 Fuller (20 Century )

Following from Aquinas, and Finnis, we may conclude that the statement “unjust
law is not really law” points that unjust law does not carry the same moral force
or offer the same reasons for action as laws consistent with “higher law”. Unjust
laws may obligate in a technical legal sense, on Finnis’s view, but they may fail to
provide moral reasons for action of the sort that it is the point of legal authority to
provide. (legal obligation in the legal sense v legal obligation in the moral sense)

From Aristotle, Aquinas, all the way to Finnis natural law insists on law as being
dependent on a higher morality. For Finnis basic requirements of reasonableness
enables making moral choices about social goods. Law enables coordination
over social goods and, per Finnis, part of a large ethical system.

COMMAND THEORIES Austin and Bentham

Laws ( im )properly so called

“The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one inquiry; whether it be or be not conformable to an assumed
standard, is a different inquiry. This truth, when formally announced as an
abstract position, is so simple, and glaring that it seems idle to insist upon it. But
simple and glaring as it is, when enunciated in abstract expression, the
enumeration of the instances in which it has been forgotten would fill a volume”
–-- ----John Austin

On “positive morality”

 Rules or Laws are closely analogues to “proper laws”

 But are merely opinions or sentiments held or felt by men in regard to

human conduct.

 Ex- Rules of honor imposed between gentlemen, laws set by fashion

which are opinions of those of the people of fashion, and international
law.

International law as positive morality

Though some of the laws or rules, which are set by men to men, are established by
political superiors, others are not established by political superiors, or are not
established by political superiors, in that capacity or character. Closely analogous
to human laws of this second class, are a a set of objects frequently but
improperly termed laws, being rules set and enforced by mere opinion, that is,
by the opinions or sentiments held or felt by an indeterminate body of men in
regard to human conduct. Instances of such a use of the term are the expressions
- 'The law of honour;' 'The law set by fashion;' and rules of this species
constitute much of what is usually termed 'International law.' The aggregate
of human laws properly so called belonging to the second of the classes above
mentioned, with the aggregate of objects improperly but by close analogy
termed laws, I place together in common class, and denote them by the term
positive morality, The name morality severs them from positive law, while the
epithet positive disjoins them from the law of god.

So what is international law according to Austin ?

 International law is positive morality

  It is placed under the category “law improperly so called”

 This is because, international law lacks a determinate source.

Law as Command

Every law or rule is a command. Or, rather, laws or rules, properly so called,
are a species of commands.

If you express or intimate a wish that I shall do or forbear from some act, and
if you will visit me with an evil in case comply not with your wish, the
expression or intimation of your wish is a command. A command is
distinguished from other significations of desire, not by the style in which the
desire is signified, but by the power and the purpose of the party commanding
to inflict an evil or pain in case the desire be disregarded.
If you cannot or will not harm me, in case I comply not with your wish, the
expression of your wish is not a command, although you utter your wish in
imperative phrase. If you are able and willing to harm me in case I comply not
with your wish, the expression of your wish amounts to a command, although
you are prompted by a spirit of courtesy to utter it in the shape of a request.

A command, then, is a signification of desire, But a command is distinguished

from other significations of desire by this peculiarity: that the party to whom
it is directed is liable to evil from the other, in case he comply not with the
desire. Being liable to evil from you if I comply not with a wish which you
signify, I am bound or obliged by your command, or I lie under a duty to obey it.
If, in spite of that evil in prospect, I comply not with the wish which you signify, I
am said to disobey your command, or to violate the duty which it imposes.

Command and duty are, therefore, correlative terms: the meaning denoted by each
being implied or supposed by the other. Or wherever a duty lies, a command has
been signified; and whenever a command is signified, a duty is imposed.
Concisely expressed, the meaning of the correlative expressions is this. He who
will inflict
an evil in case his desire be disregarded, utters a command by expressing or
intimating his desire: He who is liable to the evil in case he disregard the
desire, is bound or obliged by the command.

The evil which will probably be incurred in case a command be disobeyed or (to
use an equivalent expression) in case a duty be broken, is frequently called a
sanction, or an enforcement of obedience. Or (varying the phrase) the command or
the duty is said to be sanctioned or enforced by the chance of incurring the evil.
Considered as thus abstracted from the command and the duty which it enforces,
the evil to be incurred by disobedience is frequently styled a punishment. But, as
punishments, strictly so called, are only a class of sanctions, the term is too
narrow to express the meaning adequately.

It is only by conditional evil, that duties are sanctioned or enforced. It is the power
and the purpose of inflicting eventual evil, and not the power and the purpose of
imparting eventual good (like a reward) which gives to the expression of a wish
the name of a command.

Command/Orders backed by threat

Every law or rule is a command

A command is a signification of desire and the party to whom it is directed is liable

to evil in case he comply not with the desire. Commands impose obligations.

Laws or rules, properly so called, are a species of command backed by sanction

How is a legal obligation different from orders backed by threat ?

Laws are general commands that applies to general class of persons. These general
commands are primary. Individuated face to face

directions in the gunmen case are secondary.

Commands are standing as they do not require necessarily to be addressed to the

people

Law resembles general forms of directions that do not name individuals and do not
indicate a particular act to be done
Hart’s objections

Observing the content of the law:

 Laws providing facilities by conferring legal power

 Laws specifying jurisdiction of courts

 Nullity is not sanction

Observing the application of law:

 Law binds it creator

Power – conferring rules

The Consumer Protection Act 2019

47. (1) Subject to the other provisions of this Act, the State Commission shall have

jurisdiction—

(a) to entertain—
(i) complaints where the value of the goods or services paid as consideration,
exceeds rupees one crore, but does not exceed rupees ten crore:

Jeremy Betham

Conceptualized law as an expression (assemblage of signs) of the will (volition) of

a sovereign within a state.

Had a disdain for Common Law as opposed to Austin.

Critiqued natural rights and said “Natural rights is simple nonsense: natural and
imprescriptible rights, rhetorical nonsense, nonsense upon stilts”.

Developed an early form of legal positivism.

Through a primal covenant between ‘men’:
is created that great LEVIATHAN called a COMMONWEALTH, or STATE (in
Latin, CIVITAS), which is but an artificial man, though of greater stature and
strength than the natural.... The pacts and covenants, by which the parts of this
body politic were at first made, set together, and united, resemble that fiat, or the
Let us make man, pronounced by God in the Creation.

None can make law but the commonwealth because our subjection is to the
commonwealth only. Law takes the form as a command of the sovereign.

Our natural passions are incompatible with political society, they put is in
opposition with each other in a war as is of every man against every man’

It may peradventure be thought there was never such a time nor condition of war
as this; and I believe it was never generally so, over all the world: but there are
many places of America, except the government of small families, the concord
whereof dependeth on natural lust, have no government at all, and live at this day
in that brutish manner.

A natural society, a society in a state of nature, or a society independent but

natural, is composed of persons who are connected by mutual intercourse, but
are not members, sovereign or subject, of any society political. None of the
persons who compose it lives in the positive state which is styled a state of
subjection: or all the persons who compose it live in the negative state which is
styled a state of independence.

Some, moreover, of the positive laws obtaining in a political community, would

probably be useless to a natural society which had not ascended from the savage
state. And others which might be useful even to such a society, it probably would
not observe; in as much as the ignorance and stupidity which had prevented its
submission to political government, would probably prevent it from observing
every rule of conduct that had not been forced upon it by the coarsest and most
imperious necessity.

What does the “location” of Austin, Bentham, and Hobbes tell us about command
theories ?

How are command theories mediated by the social and political conditions in
which they were built ?

What work does the notion of “sovereign command” do in legal theory ?

On law and (dis)order

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 (including the superior) is a
society political and independent.

Who is an Austinian “sovereign” ?

The sovereign is a determinate human superior

The bulk of the people habitually obey the sovereign

The sovereign is not in the habit of obedience to any other human superior

The sovereign’s power cannot be legally limited

Why do laws persist after the sovereign who people were habitually obeying
has perished ?

Why are pronouncements of the new sovereign law already even before the
habit of obedience is developed ?

RULE

There is an internal aspect of rules

Deviation from rule is open to criticism
It is looked upon as a general standard to follow

Limitation on sovereign power

 Limitations are not duties but disabilities

 We need an accepted rule conferring authority in order to have law

HLA Hart

Austin’s critique
  Hart argues that Austin's theory resembles the order of a gunman and
in that sense can explain how criminal law works.

 Firstly, criminal law or in fact any other law commonly applies to those who
enact it and not just merely to those who are commanded by it

 Secondly, laws perform a variety of functions like conferring legal powers to

adjudicate on certain matters or legislate in a certain way or allow the
making of wills or contracts which and the function of these laws cannot be
constructed as orders backed by threats.

 Thirdly, legal rules do not work as individuated commands. In fact, laws are
often primary, general, and standing.

 Fourthly, the notion of a sovereign whose power is unlimited and who is

habitually obeyed does not explain how law is persistent and continuous
and how sovereign power is often limited through disqualifications.

 This points towards the presence of a general rule.

The problem of legal validity

Power relations

Law as a union of Primary and Secondary Rules

Primary Rules: rules that directly govern behavior, criminal law, law of tort,
traffic regulations, income tax law.

Secondary Rules: power conferring rules, rules that facilitate the making of
contracts, Wills, trusts marriages etc. Rules that lay down the composition and
powers of courts legislators and other official bodies.

Three types of secondary rules: Rules of Adjudication, Rules of Change, and

Rules of Recognition

Rule of Recognition
  The Rule of Recognition of a legal system identifies certain properties the
possession of which by a rule makes it a rule of that legal system and
authoritative within that system.

 It provides the authoritative criteria for identifying primary rules.

 It’s a secondary, social, ultimate, and supreme rule.

Features of the Rule of Recognition

 Secondary Rule

It’s a rule about the validity of other primary rules.

 Social Rule

It is based on the fact that certain members of a group take the internal point of
view towards a standard of conduct.

 Ultimate

It does not derive its validity from any other rule

 Supreme

It provides the supreme criteria of validity

Foundations of the Legal System

Legal Systems can be understood as a “Chain of Validity” at the helm of which

are the Rules of Recognition, Adjudication, and Change.

“two minimum conditions necessary and sufficient for the existence of a legal
system. On the one hand those rules of behaviour 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 behaviour by its officials. The first condition is the only one
which private citizens need satisfy: they may obey each ‘for his part only’ and
from any motive whatever; though in a healthy society they will in fact often accept
these rules as common standards of behaviour and acknowledge an obligation to
obey them” HLA Hart

For ‘the ordinary citizen’:

He need not think of his conforming behaviour as ‘right’, ‘correct’, or ‘obligatory’.
His attitude, in other words, need not have any of that critical character which is
involved whenever social rules are accepted and types of conduct are treated as
general standards. He need not, though he may, share the internal point of view
accepting the rules as standards for all to whom they apply. Instead, he may
think of the rule only as something demanding action from him under threat
of penalty.

Locating the rule of recognition

v The Muslim Personal Law (Shariat) Application Act, 1937 provides that
Muslim marriages and divorce will be governed by the law of Sharia. Under
this law, Triple Talaq (instant divorce upon uttering the word ‘talaq’ three
time) is a cutomary law practiced by certain groups of muslims.

v In Shayara Bano v Union of India WP (C) 118/2016 the Supreme Court

declared that the practice of triple talaq was unconstitutional and struck
down

 The Parliament of India passes the Muslim Women (Protection of Rights on

Marriage) Act, 2019 which makes the customary law on triple talaq illegal.

Questions to consider

 Identify the primary and secondary rules at play in this situation.

 How would you explain the validity of the law on divorce for Muslim
women in India.

Open Texture of the Law

The open texture of law means that there are, indeed, areas of conduct where
much must be left to be developed by courts or officials striking a balance, in
the light of circumstances, between competing interests which vary in weight
from case to case. None the less, the life of the law consists to a very large
extent in the guidance both of officials and private individuals by determinate
rules which, unlike the applications of variable standards, do not require from
them a fresh judgment from case to case. This salient fact of social life remains
true, even though uncertainties may break out as to the applicability of any rule
(whether written or communicated by precedent) to a concrete case. Here at the
margin of rules and in the fields left open by the theory of precedents, the
courts perform a rule-producing function which administrative bodies perform
centrally in the elaboration of variable standards.

In a system where stare decisis is firmly acknowledged, this function of the courts
is very like the exercise of delegated rule-making powers by an administrative
body. In England this fact is often obscured by forms: for the courts often
disclaim any such creative function and insist that the proper task of statutory
interpretation and the use of precedent is, respectively, to search for the
'intention of the legislature' and the law that already exists.

Formalism and Rule-Skepticism

“Here, at the fringe of these very fundamental things, we should welcome the rule-
sceptic, as long as he does not forget that it is at the fringe that he is welcome; and
does not blind us to the fact that what makes possible these striking developments
by courts of the most fundamental rules is, in great measure, the prestige gathered
by courts from their unquestionably rule-governed operations over the vast,
central areas of the law”

Courts regard legal rules not as predictions, but as standards to be followed in

decision, determinate enough, in spite of their open texture, to limit, though not to
exclude, their discretion. Hence, in many cases, predictions of what a court will do
are like the prediction we might make that chess-players will move the bishop
diagonally: they rest ultimately on an appreciation of the non-predictive aspect of
rules, and of the internal point of view of the rules as standards accepted by those
to whom the predictions relate.