Jurisprudence 1

Dr Tauseef IQBAL
‫سانًا َو ِذي‬ ‫َّللا َوبِ ْال َوا ِل َدي ِْن ِإ ْح َ‬
‫ُون ِإ اَل ا َ‬ ‫• َو ِإ ْذ أ َ َخ ْذنَا ِميثَاقَ بَنِي ِإ ْس َرائِي َل ََل ت َ ْعبُد َ‬
‫ص ََلة َ َوآتُوا‬‫اس ُح ْسنًا َوأَقِي ُموا ال ا‬ ‫ين َوقُولُوا ِللنا ِ‬ ‫ْالقُ ْربَى َو ْاليَتَا َمى َو ْال َم َ‬
‫سا ِك ِ‬
‫ون‬
‫ُ َ‬ ‫يَل ِم ْن ُك ْم َوأ َ ْنت ُ ْم ُم ْع ِر ُ‬‫الز َكاة َ ث ُ ام ت َ َولا ْيت ُ ْم ِإ اَل قَ ِل ً‬
‫ا‬
‫• ﴿‪﴾002:083‬‬
‫• [جالندھری] اور جب ہم نے بنی اسرائيل سے عہد ليا کہ خدا کے‬
‫سوا کسی کی عبادت نہ کرنا اور ماں باپ اور رشتہ داروں اور‬
‫يتيموں اور محتاجوں کے ساتھ بھَلئی کرتے رہنا اور لوگوں سے‬
‫اچھی باتيں کہنا اور نماز پڑھتے اور زکوة ديتے رہنا تو چند‬
‫شخصوں کے سوا تم سب (اس عہدسے) منہ پھير کر پھر بيٹھے‬
Questions???
• What is law?
• Layman
▫ Dispute settlement, police, court
• Lawyer, judge
▫ Codes, statutes,
• Philosopher
▫ Instrument of social change, to achieve justice
• What about function of law
• What if function not being fulfilled? And what to do
more
• Jurisprudence gives you clear picture of law
Definition
• Literal
▫ Juris ( law) and prudence ( knowledge)
• Hence knowledge of law/knowledge about law
• Thus it is the science/knowledge of Law
• Also known as activity of prudent..3rd century
activities of roman scholars
• What is definition?
▫ To state with an acceptable degree of precision the sets
of properties possessed by the phenomenon which is
to be defined, i.e., to determine essential qualities
John Austin
(3 March 1790 – 1 December 1859)
• “ the philosophy of positive law”
▫ positive law laid down by a political superior for controlling
the conduct of those subjects to his authority.
• General Jurisprudence includes such subject or ends of
law as are common to all systems.
▫ Criticism..legal principle can’t be discussed unless it is
common to many legal systems
• Particular Jurisprudence is the science of any actual
system of law or any portion of it.
• Also divides jurisprudence into
▫ Analytical Jurisprudence. Concerned with logical analysis
of basic concepts in law i.e. right, duty, negligence etc.
▫ Normative Jurisprudence. Concerned with rational
criticism an devaluation of legal practices.
Sir Thomas Erskine Holland
• “The formal science of positive law”.
▫ Positive law means general rules of external human actions
enforced by political superior
▫ that which concerns only the form and not its essence or
content.
• Allen ‘The scientific synthesis of the law’s essential
principles”
• Professor Jolowicz
‘A general theoretical discussion about law and its
principles, as opposed to the study of actual rules of law”
• Law as transnational in nature
• Paton “ particular methods of study not the law of one
country, but of the general notions of law itself”
Scope
• Broadly into three areas
• 1) Sources of ideas about Law
▫ Where the law come from or its source of inspiration...to
explain it different theories
 Natural Law theories...source is human reason
 Utilitarian ..Greatest good for greatest number
 Historical school...Law to be discovered in history and culture
• 2) Sources of Law
▫ Study of sources of law..Legislation, precedent, their
techniques etc
• 3) Legal Concepts
▫ Study broad general principles and concept running
through entire law...for better grasp of nature of law..
 ‫•‬
‫اَّلل َو ْاليَ ْو ِم ْاْل ِخ ِر‬
‫ب َولَ ِك ان ْالبِ ار َم ْن آ َمنَ بِ ا ِ‬
‫ق َو ْال َم ْغ ِر ِ‬‫ْس ْالبِ ار أ َ ْن ت ُ َولُّوا ُو ُجو َھ ُك ْم قِبَ َل ْال َم ْش ِر ِ‬ ‫• لَي َ‬
‫سا ِكينَ َوا ْبنَ‬ ‫ب َوالنا ِب ِيينَ َوآتَى ْال َما َل َعلَى ُح ِب ِه َذ ِوي ْالقُ ْربَى َو ْاليَتَا َمى َو ْال َم َ‬ ‫َو ْال َم ََلئِ َك ِة َو ْال ِكتَا ِ‬
‫الز َكاة َ َو ْال ُموفُونَ ِبعَ ْھ ِد ِھ ْم ِإ َذا َعا َھدُوا ۖ‬ ‫ص ََلة َ َوآتَى ا‬ ‫ام ال ا‬ ‫َ‬ ‫ب َوأَقَ‬‫الرقَا ِ‬ ‫سا ِئ ِلينَ َو ِفي ِ‬ ‫س ِبي ِل َوال ا‬ ‫ال ا‬
‫ص َدقُوا ۖ َوأُولَئِ َك ُھ ُم ْال ُمتاقُونَ‬ ‫اء َو ِحينَ ْالبَأ ْ ِس ۗ أُولَئِ َك الاذِينَ َ‬ ‫ُ ار ِ‬‫اء َوال ا‬ ‫س ِ‬ ‫صابِ ِرينَ فِي ْالبَأ ْ َ‬ ‫َوال ا‬
‫• ﴿‪﴾002:177‬‬
‫[جالندھری] نيکی يہی نہيں کہ تم مشرق و مغرب (کو قبلہ سمجھ کر ان) کی طرف •‬
‫منہ کرلو بلکہ نيکی يہ ہے کہ لوگ خدا پر اور روز آخرت پر اور فرشتوں پر اور‬
‫(خدا کی) کتاب اور پيغمبروں پر ايمان َلئيں اور مال باوجود عزيز رکھنے کے‬
‫رشتہ داروں اور يتيموں اور محتاجوں اور مسافروں اور مانگنے والوں کو ديں اور‬
‫گردنوں (کے چھڑانے) ميں (خرچ کريں) اور نماز پڑھيں اور زکوة ديں اور جب‬
‫عہد کرليں تو اس کو پورا کريں اور سختی اور تکليف ميں اور (معرکہ) کاراز کے‬
‫وقت ثابت قدم رہيں يہی لوگ ہيں جو (ايمان ميں) سچے ہيں اور يہی ہيں جو (خدا‬
‫سے) ڈرنے والے ہيں‬
Kinds of Jurisprudence
• Depends upon one’s focus on any area/part or
more than one part or even narrow area within
one part
• When talk about source of ideas...Its
normative/conceptual jurisprudence
• When emphasis last two areas...called analytical
jurisprudence
• Emphasis on custom and culture ( historical
jurisprudence)
Normative or Ethical Jurisprudence
• Function of law is
▫ justice
• Whether judge bound to follow law or sth additional into his reasoning
• Given rise to law and morality debate
• To discuss general principles of law distinguished from rules as well as
issues of ethics
▫ Natural law...judge to add principles of natural law
▫ Positive law...morality and ethic not interfere in application of law
• Another them is also what law ought to be
 On what basis principles law is based or law ought to be
 Concerned with content of law ..whether good or bad...
• Important questions discussed
▫ What is just law, why duty to obey law, what is proper function of law
• Important classics of political philosophy and natural law
▫ Bentham, John Rawl (A theory of Justice), Hart ( punishment and responsibility)
Historical Jurisprudence
• As name indicates, focus on past for
inspiration and guidance about law
• History of laws and how they developed
over time
• Law is like culture, dress and custom, people
and develops like culture
• Sir Henry Maine,
• Savingy leading philosopher
• Against codification of law
Analytical Jurisprudence
• Focuses on law as it is
• Legal rules as the true content of legal system
• Morality, ethics, history excluded
• Not concerned with content but form..thus slavery
...whether right/bad...it sees if its law, then to be applied
• Question discussed
▫ What is law
▫ What is legal system
▫ Relationship of law and justice or morality
▫ Nature of rules
▫ How to understand concept like legal right/duties
▫ Work of Bentham, Austin ‘ province of jurisprudence
determined” Pure theory of Law, Hart..concept of law
Value of Jurisprudence
• Traditionally in England, apprenticeship and attending few dinner
• Lawyer was concerned with practical concerns rather than academic
discussion
• Now change in England especially influenced from American
jurisprudence decade
• In Pakistan, still Austinian jurisprudence
• “ Austin once religion now disease”
• Required for daily business of law..fills the gap in law
▫ Higher court discretion where law vague
▫ Discussion on law and morality... Valentine ban by IHC
• Theory and Practical
▫ No practice without a theory...making of aeroplane? Need aerodynamic
theory
• To grasp fuller appreciation of law
▫ Grammar and writing
 ‫ع ِليم‬ ‫َّللا ِب ِه َ‬‫ش ْيء فَِِ ان ا َ‬ ‫• لَ ْن تَنَالُوا ْال ِب ار َحتاى ت ُ ْن ِفقُوا ِم اما ت ُ ِحبُّونَ ۚ َو َما ت ُ ْن ِفقُوا ِم ْن َ‬
‫• ﴿‪﴾003:092‬‬
‫• [جالندھری] (مو منو!) جب تک تم ان چيزوں ميں سے جو تمہيں عزيز ہيں (راہ خدا) ميں‬
‫صرف نہ کرو گے کبھی نيکی حاصل نہ کر سکو گے اور جو چيز تم صرف کرو گے خدا‬
‫اس کو جانتا ہے۔‬
‫•‬
‫ف بَيْنَ قُلُوبِ ُك ْم‬ ‫علَ ْي ُك ْم ِإ ْذ ُك ْنت ُ ْم أَ ْع َدا ًء فَأ َلا َ‬ ‫ت اِ‬
‫َّللا َ‬ ‫َّللا َج ِميعًا َو ََل تَفَ ارقُوا ۚ َوا ْذ ُك ُروا نِ ْع َم َ‬‫ص ُموا بِ َح ْب ِل ا ِ‬ ‫• َوا ْعتَ ِ‬
‫ا‬ ‫ار فَأ َ ْنقَ َذ ُك ْم ِم ْن َھا ۗ َك َذ ِل َك يُبَيِ ُن ا‬
‫َّللاُ لَ ُك ْم آيَاتِ ِه لَعَل ُك ْم‬ ‫شفَا ُح ْف َرة ِمنَ النا ِ‬ ‫علَى َ‬ ‫صبَ ْحت ُ ْم بِنِ ْع َمتِ ِه إِ ْخ َوانًا َو ُك ْنت ُ ْم َ‬‫فَأ َ ْ‬
‫تَ ْھتَدُونَ‬
‫• ﴿‪﴾003:103‬‬
‫[جالندھری] اور سب مل کر خدا (کی ہدايت کی) رسی کو مُبوط پکڑے رہنا اور متفرق نہ •‬
‫ہونا اور خدا کی اس مہربانی کو ياد کرو جب تم ايک دوسرے کے دشمن تھے تو اس نے‬
‫تمہارے دلوں ميں الفت ڈال دی اور تم اس کی مہربانی سے بھائی بھائی ہوگئے اور تم آگ‬
‫کے گڑھے کے کنارے تک پہنچ چکے تھے تو خدا نے تم کو اس سے بچا ليا اس طرح خدا‬
‫تم کو اپنی آيتيں کھول کھول کر سناتا ہے تاکہ تم ہدايت پاؤ‬
Questions
• What is law?
• Any action/rule/command is Law?
• Newton’s law? Law of gravitation?
• Physics would have been much easier if 'Tree'
instead of 'Apple' had fallen on Newton's head.
• Homework
Law in broader sense Ch 3
• Acc to Salmond, distinguishable from civil law ( law of
land)
• Broadest sense, any rule of action i.e. Any standard
or pattern to which action should conform...
▫ That act my be of rational agent or operation of nature)
• Sir William Blackstone ( 18th century English Jurist,
Commentaries on Law of England)
 Law, in its most general and comprehensive sense, signifies a
rule of action, and is applied indiscriminately to all kinds
of action, whether animate or inanimate, rational or irrational.
Thus we say, the laws of motion, of gravitation, of optics or
mechanics, as well as the laws of nature and of nations”
• One rule may belong to more than one classes
1) Physical or Scientific Law
• General principles expressing the regularity and
harmony in the activities and operation of universe.
▫ Law of gravitation, laws of tides
• Also called natural law/laws of nature
• Are subject to dictates of Allah through his Divine Wisdom
...
 Sea, sky, planets can’t breach His dictates
 Thomas Aquinas call them lex aeterna ( eternal law)
 Eternal law is divided into two parts
▫ 1) governing men’s action ( moral law, law of nature)..imperfectly
obeyed
▫ 2) Actions of all other creations ( physical law)..perfectly obeyed
• While physical laws are eternally and uniformly obeyed
• Main characteristic is cease to be law if once broken as
against civil law often broken...stone thrown out towards sky
2) Moral or natural Law
• meant the principles of natural right and wrong—the principles of natural justice,
if we use the term justice in its widest sense to include all forms of rightful action.
• Right/Justice either natural or positive
• Natural justice is justice as it is in deed and in truth—in its perfect idea
• Positive justice is justice as it is conceived, recognised, and expressed by the civil or
some other form of human and positive law.
• expression of positive justice, so philosophers have recognised a natural law, which is
the expression of natural justice
• This distinction from Greek philosophy
• Acc to Stoic, nature or universe is a living organism in which material world is body
and Deity or Universal reason is soul.
• It got many names, Divine Law, Unwritten Law ( written by finger of nature upon
heart of man), Universal/common law ( same for all places and binding on all people),
Moral law ( expression of principles of morality)
• Ex. Different fundamental rights in world constitution, or declaring some
legislation void being against principles of natural justice..
3) Imperative Law
• Imperative law means any rule of action imposed upon men by some authority
which enforces obedience to it
• Three elements
▫ Law is a command
▫ Imposed and enforced by superior power
▫ Violation of which is punishable by sanction ( not necessarily physical punishment, may be
restrains)
• Either Divine or Man made
▫ Divine laws punishable in world or thereafter
▫ Man made may be divided into
 Civil Law...command issued by state to its subject by physical force
 Law of positive morality...law of reputation or opinion in society enforced by public censure
 Law of nation..punished partly by international opinion or threat of war
• Force is right attached with law..
▫ Hobbes say “ it is men and arms that make the force and power of laws”
• Was this law when there was no State (political power)?
• Supporters says that was some substitute like customs, religion so law was existing
before even state
4) Conventional Law
• Conventional means agreement..being the basis of
that law and not any force or coercion of
superior
• Body of rules to regulate one’s conduct towards
another
• Sanction being displeasure of other party or
sometime force of state
• Two categories
▫ Rule not recognized by state..rules of cricket,
Clubs, games
▫ Rules recognized by state...MOA, International Law
5). Customary Law
• Such rules of customs habitually followed
by majority since long time and expected to
be followed in future in belief that of these
being binding
• Become part of Legal or part of civil law if
recognized by state or courts
6) Practical Law/technical law
• Rules for attainment of some practical end
• Inform us what we ought to do or not to do to
achieve certain ends
▫ Law of architect, laws of game also include
some rules for successful playing of game
7) International Law
• Law between nations
• Law that regulate relations of state towards each other
• Various theories..whether Int. Law is law or not?
▫ Its sort of customary law
▫ Conventional law..
▫ Imperative law become enforce by state by international
opinion
▫ Austin refuse to recognize it as law become there being no
political power
▫ Oppenheim, Hall etc take it a law
 Consent of state is sanction and lack of any body to enforce it
is a matter of details only
 That powerful nation ignore does not mean these not law
since sometimes civil law is also violated by power
organizations and men
8) Civil Law
• Law of the land or administered by state
or acted on by court
• General Law..which is general, larger and
important part of legal system..Law of contract,
criminal law, etc
• Special Law...that is applied to particular
application...for certain people, private
agreement,
Definition of Law Narrow Sense
• John Leslie Green ( authority of state
book) .. Law is the system of rights and
obligations which the state enforces.
• Woodrow Wilson …“Law is that portion of
the established thought and habit which has
gained distinct and formal recognition in the
shape of uniform rules backed by the authority
and power of Government.”
• T.E. Holland. British Jurist 20th Century..
“Law refers to a general rule of action, taking
cognizance only of external acts enforced by a
determinate authority, which authority is
human, and among human authorities is that
which is permanent in a political society”
• John Austin 19th century legal
philosopher
• “A law is a rule of conduct imposed and enforced
by the sovereign.”
• John Salmond
• “Law is the body of principles recognized and
applied by the State in the administration of
justice.”
• Roscoe Pound ( American sociological
jurisprudence)
• “Law is the body of principles recognized or
enforced by public and regular tribunals in the
administration of justice.”
Advantages/disadvantages of fixed
rules of Law
• Some scholars says court function is not to
enforce law but to maintain justice..that needs
judicial discretion...
• Laws in theory voices of right reason, utterance
of justice from mouth of state but too often short
fall of this ideal
Uniformity and Certainty
• Uniformity in the administration of justice
• Judicial decisions not only correct, but subject
know beforehand decision the court make
• This provision is possible if fixed principles of
law
• As said, better to have defective rules than not
all
• To curtail judicial discretion to avoid choas
Impartiality
• In administration of justice, protection from
improper influences and motives..thus necessarily
impartial..
• No speical or particualar person, not respect for few
• Cicero said “ We are slaves of law so that we may be
free”
• John Locke “The legislative or supreme authority
cannot assume to itself a power to rule by
extemporary arbitrary decrees, but is bound to
dispense justice and decide the rights of the subject
by promulgated standing laws and known
authorised judges.
Wisdom of whole community
• Protection from errors of individual errors
• Law also substitution for opinion and conscience
of community at large
• Although law not always wise, but wiser than
those who administer it
• Aristotle “ to seek to be wiser than law is the very
thing which is by good law forbidden”
Demerits of fixed rules... Rigidity
• Law generally focuses on most material facts and
circumstance disregarding less important
• If hard rules, it would create hardship and
injustice
• Law can’t visualize unseen circumstances of men
• If make many exceptions, it would loose
certainty
Conservatism
• Inability of law to change rapidly acc to changing
circumstance..
• If not fixed rules, administration of justice would
adopt to it
• Impossible to have a legislation that keep up
with time..thus lag behind public opinion
Formalism
• Undue importance to form and not content
• Something may be important in law but not in
fact, is formalism
Complexity
• Rule making binding up of rule..
• It become accessible to experts only and not to
common people
• Thus people don't understand law and cant
follow it
‫!!!!‪Food for thought‬‬
‫ش ِھيدًا‬ ‫س ً‬
‫وَل ۚ َو َكفَى ِب ا ِ‬
‫اَّلل َ‬ ‫اس َر ُ‬ ‫س ْلن َ‬
‫َاك ِللنا ِ‬ ‫س ِيئَة فَ ِم ْن نَ ْف ِس َك ۚ َوأ َ ْر َ‬ ‫َّللا ۖ َو َما أ َ َ‬
‫صا َب َك ِم ْن َ‬ ‫سنَة فَ ِمنَ ا ِ‬ ‫صا َب َك ِم ْن َح َ‬ ‫• َما أ َ َ‬
‫• ﴿‪﴾004:079‬‬
‫• [جالندھری] (اے آدم زاد) تجھ کو جو فائدہ پہنچے وہ خدا کی طرف سے ہے اور جو نقصان پہنچے وہ‬
‫تيری ہی (شامت اعمال کی) وجہ سے ہے اور (اے محمد) ہم نے تم کو لوگوں (کی ہدايت) کے ليے‬
‫پيغمبر بنا کر بھيجا ہے اور (اس بات کا) خدا ہی گواہ کافی ہے‬
‫•‬
‫ش َك ْرت ُ ْم َوآ َم ْنت ُ ْم ۚ َو َكانَ ا‬
‫َّللاُ شَا ِك ًرا َع ِلي ًما‬ ‫• َما يَ ْفعَ ُل ا‬
‫َّللاُ بِعَ َذابِ ُك ْم إِ ْن َ‬
‫• ﴿‪﴾004:147‬‬
‫• [جالندھری] اگر تم (خدا کے) شکر گزار رہو اور (اس پر) ايمان لے آؤ تو خدا کو تم کو عذاب دے کر‬
‫کيا کرے گا اور خدا تو قدر شناس اور دانا ہے۔‬
‫•‬
Natural Law Theory
• What is Natural Law theory
• Religious and Secular approaches
• Origin of theory
• Different Stages: Old, Medieval, Modern
• Fall and revival of theory
• Influence of theory
Natural Law theory
• What constitutes Natural Law theory?
▫ Has relation with the word nature
• generally comprises an approach which seeks to explain law as
a phenomenon whose existence is an expression of some
higher law, to which it must necessarily approximate
• Moot competition in Dept. I am Head and entitled to make rules
▫ Only Children of Lawyer participate because they can have resources,
better guide to perform better
▫ Suppose you are not child of a lawyer?
▫ Is it fair, just or perfect approach?
• Thus content of law must comply/satisfy some higher test?
• Historically tended to be either secular or theological in their
identification of higher law
Theological theories
• What does religions say about Universe and
mankind?
• Universe, including human society, created and
being governed by some deity and laid down
principles that control all of creation
• How people came to know about these principles?
▫ These principle made known to human though
scriptures and common for all societies
• Such principles provide morality which must
govern all human communities and they constitute
higher law to which all social arrangements
including law must strive to conform
Secular theories
• What may be secular approach towards universe?
▫ humans have a certain conception of morality which is intrinsic to
them and to their nature.
• This morality sometimes seen in the form of conscience, made
of principles that provide basis for proper human action
• How to identify these principles?
▫ Reason existing in all human being enabling to understand
universe
• These principles make humanity tend towards virtues (
justice and kindness) and away from vices ( malice and violence)
• These principles should be basis for law making and
constitute higher law to which all human laws must strive to
conform
The general methodology of Natural
Law theories
• It regard the world, especially human society, as having an ultimate purpose.
▫ Generally, this refers to some state of perfection,
• Law, as a device for promoting the desired good, is regarded as being a social
necessity
• Persons ,in harsh life, may not tend to achieved desired good.
• Law is therefore
▫ a guide to those working for the common good and
▫ a deterrent to those who would work against it
• All human laws must be created in such a way that they provide the
optimum conditions, resources and opportunities for the attainment of
the desired goal.
• How can we ensure to make law perfect?
• Human laws must be constantly evaluated in light of the principles of Natural
Law,
• Thus important question concerning the nature of law is, what the law ought to be,
in order for it to be a true reflection of such principle
• Law ought to be is an important question of morality,
• Based on judgement of people in society which are
properly reached at after the exercise of reason.
• The goal to be achieved through law is also identified
through reflection, and may be objectively discovered
from the attitudes or preferences of all moral persons in
society.
• Natural Law theorists, therefore, tend to start from an
assessment of what the moral attitude of people in
society are?
• Then deduce the desired state of perfection and on
this basis they decide how desired result can be
achieved.
Purpose of Life
• Natural Law recognizes
▫ Reproduction
▫ Life
▫ Education
▫ Law and order
▫ Worship God
• Anything in support of these purpose is good
and morally correct and anything opposite is bad
Recent work
• John Finnis “ natural law and natural justice”
deemphasis metaphysical element and
relied more on higher law
• Modern theorist concentrated on common
good which is seen basis of human society
and argue that law must conform to or
advance general welfare
 ‫•‬
‫س ِم ۡي ُع ۡالعَ ِل ۡي ُم ﴿‪﴾۶۱‬‬ ‫س ۡل ِم فَ ۡ‬
‫اجن َۡح لَ َہا َو ت َ َو اک ۡل َعلَی ہ ِ‬
‫َّللاؕ اِنا ٗہ ہ ُ َو ال ا‬ ‫َو اِ ۡن َجنَ ُح ۡوا ِلل ا‬ ‫•‬
‫﴿‪﴾008:061‬‬ ‫•‬
‫[جالندھری] اور اگر يہ لوگ صلح کی طرف مائل ہوں تو تم بھی اس کی طرف مائل‬ ‫•‬
‫سنتا (اور) جانتا‬
‫ہو جاؤ اور خدا پر بھروسہ رکھو۔ کچھ شک نہيں کہ وہ سب کچھ ُ‬

‫اَل ِم ُر ۡونَ ِب ۡال َمعۡ ُر ۡو ِ‬

‫ف َو النااہ ُ ۡونَ‬ ‫س ِجد ُۡونَ ۡ ٰ‬
‫لر ِکعُ ۡونَ ال ہ‬ ‫• اَلتاآئِبُ ۡونَ ۡال ٰع ِبد ُۡونَ ۡالحٰ ِمد ُۡونَ ال ا‬
‫سآئِ ُح ۡونَ ا ہ‬
‫َّللاؕ َو بَ ِش ِر ۡال ُم ۡؤ ِم ِن ۡينَ ﴿‪﴾۱۱۲‬‬ ‫َع ِن ۡال ُم ۡنک َِر َو ۡالحٰ ِف ُ‬
‫ظ ۡونَ ِل ُحد ُۡو ِد ہ ِ‬
‫• ﴿‪﴾009:112‬‬
‫[جالندھری] توبہ کرنے والے عبادت کرنے والے حمد کرنے والے روزہ رکھنے •‬
‫والے رکوع کرنے والے سجدہ کرنے والے نيک کاموں کا امر کرنے والے اور بری‬
‫باتوں سے منع کرنے والے خدا کی حدوں کی حفاظت کرنے والے (يہی مومن لوگ‬
‫سنا‬‫ہيں) اور (اے پيغمبر صلی ہللا عليہ وسلم) مومنوں کو (بہشت کی) خوشخبری ُ‬
‫دو‬
Historical Origin..Early Beginning
• earliest stages of social development when very little distinction
religious and the secular, the spiritual and the physical
• Many early communities all over the world tended to see a link
between the natural world of physical matter and the
spiritual world of gods and spirits.
• there was a spiritual entity associated with the workings of
almost every aspect of the physical world.
• Hence the notion some higher power in control of human
existence and higher set of rules which humanity could
discover with effort, but which, if grasped, would reveal
the plans of the deities for human society.
• In a harsh and capricious world, these divine plan leading to
an ultimate state of goodness, where life easier for all
members
• this state of perfection, deities had in mind, humans
could assist the gods in their endeavours
Religious Origin
• Starts with religions
• Judo Christianity and Islam for monotheism
• Islamic scholars and imams expounded Islamic laws
and gave reasoning thereof
• Thus easy to understand single purpose of
human society, law through scripture demanding
societies govern themselves on the basis of
these principles
• "A Muslim is one from whose tongue and hand other
Muslims are safe.“ Hadith
Greek Philosopher
• Parallel to religion, Greeks developed Natural
law on rationalism
• Universe being governed by intelligible law
capable being grasped through human mind
• possible to derive, from the rationality of
the universe, some rational principles
which could be utilised to govern the conduct
of persons as individuals in society
classical Natural Law thinking
• Socrates (470–399 BC) and Plato (428–348 BC) argued that there
were principles of morality which can be discovered through the
processes of reasoning and insight.
▫ Law based on these principles would thus be the product of correct
reasoning.
• Plato further developed the ‘idea’ of justice as an absolute ‘thing in
itself, having qualities of truth and reality higher than those of
positive law, which could then be seen as a mere shadow of real
justice.
▫ Law must constantly strive to approximate to the Absolute
Idea of justice, and ideal justice could only be achieved or fully
realised in an ideal state, ruled over by philosopher-kings, who
would be capable of grasping the Absolute Idea of justice.
• He also contended that individual interest subject to social welfare
and good law measured by its contribution to social welfare
• Aristotle... Natural law inherent in nature of man
• The Stoics School identified nature with reason,
arguing that reason governs all parts of the universe
and that humans, as part of the universe and of nature,
are also governed by reason.
▫ People will therefore live ‘naturally’ if they lived
according to their reason
• Cicero..(106-43) True law is right reason in
agreement with nature, it is of universal
application, unchanging and everlasting
▫ Cicero established the view that an unjust law is not law,
arguing that a test of good law was whether it accorded
with the dictates of nature.
Medieval Times
• St. Augustine (4th Century AD) ... Mainly in Christian
church..Christian teaching supreme law and king made law may
be disregarded if against supreme law
• This stage in European history saw the final integration of the
rationalist and the religious approaches to Natural Law.
• This was mainly the work of St Thomas Aquinas (1224–74).
▫ Law has four categories
▫ (a) Eternal law—which constitutes God’s rational guidance of all
created things and is derived from the divine wisdom and based on
a divine plan.
▫ (b) Divine law—that part of eternal law which is manifested through
revelations in the Christian scriptures.
▫ (c) Natural Law—which describes the participation of rational
creatures in the eternal law through the operation of reason.
▫ (d) Human law—which is derived from both divine law and Natural
Law and which is, or must be directed towards the attainment of
the common good
• For Aquinas, a human law would be unjust where it:
• furthers the interests of the lawgiver only;
• exceeds the powers of the lawgiver;
• imposes burdens unequally on the governed.
▫ Under these circumstances, disobedience to an unjust
law becomes a duty.
• However, such disobedience, though justified, should
be avoided where its effects would be to lead to social
instability, which is a greater evil than the existence
of an unjust law.
• AL-Kundi and Al Razi are prominent
• Al Kundi “ the goals of philosophy are perfectly
compatible with those of religion”
The secularisation of Natural Law
• Decline of the Roman Catholic Church following from the
Reformation in Europe.
• Resulted from Protestant theorists
• Natural Law not be dependent on the papacy and papal
pronouncements for its coherence.
• One of the main secular Natural Law theorists at this stage
was Hugo Grotius, a Dutch statesman
▫ emphasised the classical explanation of Natural Law as being
grounded in the authority of reason based on the
Aristotelian system— that is, that Natural Law principles are
derived or derivable from the nature of the human
intellect, which requires and desires society to be
peaceful. Thus, these principles are independent of divine
command, and it is possible to have Natural Law without
appealing to God.
• Secular dimension also used to liberate people
from political tyranny...English revolution,
American independence, French revolution..
• legal authority comes from people got
increasing acceptance
The decline of Natural Law theory
• The 18th and 19th centuries saw the decline of Natural Law
theory as it came under attack from rationalist and
increasingly secularist approaches to the problems of the human
condition.
• The 18th century
In this, the ‘age of reason’, thinkers like Charles de Montesquieu
(1689– 1755), David Hume (1711–76) and Adam Smith (1723–
90) criticised Natural Law theory for its assertion that there
was some ultimate, metaphysical purpose to human
existence and human society, separate from the moral and
physical realities of everyday life
• Hume.. Irrational attempt to derive ought propositions
from is propositions...
▫ Rather to derive normative values by reasoning from observed
natural fact
 ‫•‬
‫َّللا ََل يُغَيِ ُر َما ِبقَ ۡوم َحتہی يُغ َِي ُر ۡوا َما ِبا َ ۡنفُ ِس ِہ ۡمؕ َو‬ ‫• لَ ٗہ ُم َع ِق ٰبت ِم ۡۢۡن بَ ۡي ِن يَ َد ۡي ِہ َو ِم ۡن خ َۡل ِف ٖہ يَ ۡحفَ ُ‬
‫ظ ۡون َٗہ ِم ۡن ا َ ۡم ِر ہ ِ‬
‫َّللاؕ ا اِن ہ َ‬
‫س ۡ ٓو ًءا فَ ََل َم َر اد لَ ٗہ ۚ َو َما لَ ُہ ۡم ِم ۡن ُد ۡو ِن ٖہ ِم ۡن اوال ﴿‪﴾۱۱‬‬ ‫َّللاُ ِبقَ ۡوم ُ‬ ‫اِ َذ ۤا ا َ َرا َد ہ‬
‫• ﴿‪﴾013:011‬‬
‫• [جالندھری] اسکے آگے اور پيچھے خدا کے چوکيدار رہيں جو خدا کے حکم سے اس کی حفاظت‬
‫کرتے ہيں۔ خدا اس (نعمت) کو جو کسی قوم کو (حاصل) ہے نہيں بدلتا جب تک کہ وہ اپنی حالت کو نہ‬
‫بدلے۔ اور جب خدا کسی قوم کے ساتھ برائی کا ارادہ کرتا ہے تو پھر وہ پھر نہيں سکتی اور خدا کے‬
‫سوا ان کا کوئی مددگار نہيں ہوتا۔‬

‫ص ٰلوة َ َو ا َ ۡنفَقُ ۡوا ِم اما َرزَ ۡق ٰن ُہ ۡم ِس ًّرا او َع ََلنِيَ ًۃ او يَ ۡد َر ُء ۡونَ بِ ۡال َح َ‬

‫سنَ ِۃ‬ ‫• َو الاذ ِۡينَ ٓ َ‬
‫صبَ ُروا ۡابتِغَا ٓ َء َو ۡج ِہ َربِ ِہ ۡم َو اَقَا ُموا ال ا‬
‫اار ﴿ۙ‪﴾۲۲‬‬ ‫ع ۡقبَی الد ِ‬ ‫ک لَ ُہ ۡم ُ‬ ‫سيِئ َ َۃ ا ُ ٰ‬
‫ولئِ َ‬ ‫ال ا‬
‫• ﴿‪﴾013:022‬‬
‫• [جالندھری] اور جو پروردگار کی خوشنودی حاصل کرنے کے لئے (مصائب پر) صبر کرتے ہيں اور‬
‫نماز پڑھتے ہيں اور جو (مال) ہم نے انکو ديا ہے اس ميں سے پوشيدہ اور ظاہر خرچ کرتے ہيں اور‬
‫نيکی سے برائی کو دور کرتے ہيں يہی لوگ ہيں جن کے لئے عاقبت کا گھر ہے۔‬
‫•‬
19th century
• more virulent attack on Natural Law theory, as emphasis
was placed on the notions of State power and coercion
• German philosopher, Hegel, sought to deify the State,
which he regarded as an end in itself an absolute
sovereign whose essence derived from the laws of history and
was, therefore, not subject to some external, higher law
• Rise of the Positivist approaches to law, which sought to
place a strict separation between the two notions of what
the law is and what it ought to be
• Principles of natural law belong to morality than to
law
The Revival of Natural Law theory
• 20th century that there must be higher set of principles, which
positive law must satisfy
• Revival for following factor
▫ the general decline of social and economic stability
worldwide;
▫ the expansion of governmental activity, especially the
increasing encroachment of state institutions on the private
lives of citizens through the medium of the law;
▫ the development of weapons of mass destruction and their
increasing use in wars on a global scale;
▫ increasing doubts regarding the use and effectiveness of the
empirical sciences in determining and resolving problems
of the human condition.
John Finnis—Natural Law and natural
rights
• Denied Hume criticism of ought from Is
▫ to derive normative values by reasoning from observed natural facts
• Conceded that some stoic and medieval rationalist have done
so but not Aristotle and Acquinas
• NL not based on observance of human or other nature.
Rather from reflection of what is obviously good for all
and from practical understanding gained by experiencing
own nature and inclinations.
• Natural Law is then set of principles of practical reasonableness
to be utilized in ordering human life and human community to
attain common good.
• objective goods are attainable only in a community of human
beings where there is a legal system which facilitates the
common good.
• Unjust Law by ruler may be technically valid but is corruption of
Law
Influence of theory
• Influences are visible in modern constitutions
• In Pakistan, its obvious FR, religious laws, principle of natural justice
• 2001 CLC 820 Lah.
• Natural Justice
▫ That part of natural law which deals with administration of justice
 1) judge in his own case
 2) opportunity of being heard
• USA, judicial review of legislative and administrative acts to being in consonance
with FRs
▫ Plessy v Furguso (1896) upheld racial segregation saying “separate but equal”
 Louisiana State passed an act for separate rail cars for white and black
▫ Brown v Board of education (1954) declared segregation as violation of society.
 separate public schools for black and white students to be unconstitutional
• England...legislative superiority rules out any judicial review..but natural law still
relevant..matters not covered by statute..English law relied on Natural law...
▫ Court also used to check certiorari and prohibition...
▫ Also two principle of natural justice...
 1) judge in his own case
 2) opportunity of being heard
Criticism
• Mostly criticised by Positivists
▫ Linking law with morality is irrational and creates
confusion
• Some major criticism
▫ Ought proposition from Is proposition not logical
▫ Law and morality...law may sometimes reflect morality but
still distinct.
 Law can be valid because it has been validly created even though
it may offend our moral sensibilities
▫ Morality is matter of personal judgement that may change
for variety of reason...it would inflict the necessary requirement
of law to be certain and predictable
▫ Higher law ..not possible objectively to show such principles
Positive Law theory
• Result of shift in emphasis from metaphysical to empirical trends in
theoretical philosophy
• Metaphysical ..when thinking based on pre-conceived idea
• Empirical ..when based on facts and experiences
• Advancement in modern science induced philosophers to reject
metaphysical pursuits
• That task of jurisprudence is confined to analysis and dissection of
positive legal order
• In making this analysis, only such material as can be factually
identified as being legally relevant should be taken into account,
because
▫ the law is a distinct phenomenon which can originate, exist and
elaborated only within its own terms
▫ even though it may have some similarities or
connections with other social phenomena such as morality, religion,
ethics and so on
Two question regarding What is Law
• (a) What is the law?
This is a question of fact, involving
▫ an attempt to explain the actual incidence of law in various
societies and
▫ to identify and analyse its basic characteristics, structures,
procedures and underlying concepts and principles. The is question,
• (b) What is good law?
This is a normative question, comprising
▫ an evaluation of the existing law and seeking to judge it in terms
of goodness or badness by reference to some standard which
specifies a goal that is regarded as being desirable, and towards
which good law must aspire. The Ought Question
• These two questions are essentially different, deal with
different issues and require different answers.
• The factual identification of law should be a scientific and
analytical enterprise,
▫ And should be pursued without evaluating the law
Positive Law Theory
• An approach to the question of the nature of law
• Only positive law is law....those judicial norms which have
been established by authority of state.
• law’s most important feature is that it is specifically
created and put forward—‘posited’—by certain
persons in society who are in positions of power and
who, then, provide the sole source of the validity and
authority of such law
• Julius Moor explains “ legal positivism is a view according to
which law is produced by the ruling power in society in a
historical process. In this view, law is only that which the
ruling power has commanded, and thing which it has
commanded is law by virtue of this very circumstance”
• They also indentify justice with legality ( observance of
rules laid down by the state)
• It is important to remember that being a Positivist does not
mean that a theorist necessarily rejects the importance of
certain value judgments which may be made about the law
• Austin and Bentham, both utilitarian believed that,
once laws had been properly identified and analysed
scientifically on the basis of Positivist principles, they could
then be judged on the basis of the principle of utility
• Normally provide formula to identify law ..it is possible to
provide for neutral and universal device..for instance
▫ By defining the law that constitute law or generalized description of
essentials
▫ But seek to define law acc to its forms and not contents
• 2001 CLC 820 Lah.
▫ Principles of natural justice are supplement to law and not supplant it”
The imperative theories of law
• Certain Positivist theorists who, in their
conceptions, emphasise the coercive element
of the law.
• Law is seen as being the fact
▫ that it is created, imposed and enforced by a
group of persons in society and
▫ Those persons have the power to apply sanctions on
any other persons who may fail to comply with the
requirements of such law
Jeremy Bentham (1748–1832)
• The founder of the systematic imperative
approach to law,
• Bentham was a reformer who believed that laws
should be created in accordance with the
principle of utility
▫ laws should be aimed at advancing the greatest
happiness of the greatest number of persons in
society
• Rejected natural law theorist's higher law
principle that acc to him is nonsense on stilts
• Only happiness was greatest good.
Science/Art of legislation
• Science..ability to tell or predict actions or measure maximizing pleasure and minimizing pain
• Art of legislation...ability to create such laws
• There should be difference between expositional and censorial jurisprudence
• Thus first expositional to identify and describe law through legally relevant facts ( process of legislation,
creation etc)
• However definition of law should be dependent upon concept of sovereignty, power, and
sanction in a political society.
• What is Society
▫ when number of persons in the habit of obedience to a person or persons, such persons
are collectively in state of political society.
• Law acc to Bentham
▫ “A law may be defined as an assemblage of signs
▫ declarative of a volition conceived or adopted by the sovereign in a State,
▫ concerning the conduct to be observed in a certain case
▫ by a certain person or class of persons who, in the case in question, are supposed to be subject to
his power” OR simply
▫ Such signs given by sovereign that must be followed by certain person who are subject to sovereign.
• Then good law that could be answered in terms of utility (maximizing of pleasure and
minimizing of pain)
Eight factual issues to determine what
the law is
• Bentham argued that eight factual issues needed to be considered in any
investigation of the question of what the law is..
• Source—that is, the person or persons who had created the law and whose will
the law expresses;
• Subjects—the person or things to which the law does or may apply;
• Objects—that is, the acts, as characterised by the circumstances, to which it may
apply;
• Extent—that is, the range of its application, in terms of the persons whose
conduct it is intended to regulate;
• Aspects—that is, the various ways in which the will of the sovereign as
expressed in the law may apply to the objects (above) of that law;
• Force—that is, the punishments and sanctions which the law relies upon for
compliance with its requirements.
• Expression—that is, the manner in which the law is published, and the various
ways in which the wishes of the sovereign are made known;
• Remedial appendages—that is, any such other laws as may be created and
published in order to clarify the requirements of the principal/original
Example
• Hudood Law for theft
• Source...Parliament/ordinance
• Subject.. All Muslims
• Object... theft crime
• Extent...Criminals
• Aspect..pre-conditions for applying on theft (value
of theft property etc)
• Force..actual punishment of cutting of hands
• Expression...Publish in official gazette of Pakistan
• Remedial Appendage..how stripping is
applied..there is separate order/law I guess
John Austin (1790–1859)
• Regarded as being Jeremy Bentham’s disciple, being, like the
former, both a Positivist and a Utilitarian
• Bentham’s work published after his death, thus Austin explicate and
popularize command theory in his work
▫ The Province of Jurisprudence Determined (1832) and
▫ The Uses of the Study of Jurisprudence, ed. Hart, HLA (1954)
• Also made distinction b/w analytical and normative
jurisprudence
• Like Bentham, that first question of what is law should be
answered
• Normative question should also be answered by principle
of utility
▫ in The Province of Jurisprudence Determined:
The matter of jurisprudence is positive law: law simply and strictly so
called, or law set by political superiors to political inferiors…
• the existence of law had to do with the same issues of
sovereignty, power and sanctions.
• People with power in a politically independent society
would set down rules governing certain acts for those
who were in the habit of obeying them
• Gave very famous definition of sovereignty
▫ If a determinate human superior, not in the habit of
obedience to a like superior, receives 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.
definition of law
• A law, in the most general and comprehensive
acceptation in which the term, in its literal meaning,
is employed, may be said to be a rule laid down
for the guidance of an intelligent being by an
intelligent being having power over him
• In narrowest sense , Law is the command of a
sovereign backed by sanctions.
•
Sovereignty
• sovereign is the essential source of all law in society and,
indeed, where there is no sovereign, there can be no law.
• determinate and common political superior,
• habitually obeyed by the bulk of the members of society
who do/es not habitually obey anybody
▫ Obedience should be habitual and not occasional
▫ Should be voluntary and not forced, although perfect obedience
not possible
▫ Whether fear is present or not to be decided by social
scientist
▫ How sovereign come to enjoy sovereign left to historians
• Legally illimitable and indivisible and is the sole source
Three essentials of sovereignty
• Essentials
▫ No political existence without it, would a limb of another society having
sovereignty
• Indivisible
▫ One sovereign in whom totality of powers vest
▫ May be composite body ( parliament)
▫ Acc to Salmond, it is not essential, different organ of state exercise in their own
sphere
 Power of court to declare act of legislature as void
• Unlimited power...absolute, uncontrolled and infinite
▫ This way none of state organ can claim to be sovereign bcoz powers of all are limited
▫ Thus currently constitution is said to be sovereign
▫ Similarly not absolute powers(even of state) are rejected to avoid despotism and
tyranny
▫ Dicey said that people at large are political sovereign and parliament a legal
sovereign
▫ Jethro Brown, says that state to be a corporation and its organ as agents
• Thus in modern times, difficult to divided political society into ruler and ruled and
somehow Dicey opinion seem fine
Command
• The sovereign’s will is expressed in the form of a command.
• A command is an imperative form of a statement of the
sovereign’s wishes
• Command may be general or particular
▫ Particular enjoins or forbids particular act
▫ General enjoins or forbids class or series of acts
▫ Blackstone look above commands in terms of person or persons to
whom command is addressed.
• It is also different from other expressions of will bcz has threat
of sanction to be imposed in even of non compliance
▫ Rewards, acc to him, are for compliance while sanction for consequence
of non-compliance
Sanction
• A sanction is some harm, pain or evil which
is attached to a command
• intended as a motivation for the subjects of
the sovereign to comply with his or her
commands
• there must be a realistic possibility that it
will be imposed in the event of a breach
Criticism
• Widely criticized but still relevant because have great influence in jurisprudence
• Most forceful criticism from Natural law
▫ Lan Fulller...law is a kind of order which has an internal moral structure to which it
must conform in order to be called law..Ignores link of law and justice
• Why we follow law?
▫ Sentiments of people ignored...people consider a law a right course of conduct and sanction for
only recalcitrant minority. General Obedience not possible if law is unjust and aggressive
• Law a command. Is this always so ?
▫ may be valid in dictatorship but no more plausible in modern welfare state
• Sir Henry Maine says his theory historically inaccurate. In ancient times, King not
concerned with law, rather customs and usages were followed by people...
• Salmond reject Main’s claim and say that that was crude law of ancient state and not
modern developed states
• How about International Law and constitutional law?
▫ Do not fit to definition
▫ Int. Law no superior, only mutual agreement of state
▫ Constitution which may limits power of sovereign
• Personal Law...he claims that they have tacit commands of sovereign..but that relates to
enforcement only and not making by sovereign...means law may pre-exit the command
Pure Theory of Law, Hans Kelson
• Hans Kelson October 11, 1881 – April 19, 1973
• Austrian but left for Geneva due to rise of Nazis
• “undoubtedly the leading jurist of the time”
Roscoe Pound
• Inspired from Immanuel Kant, A German
philosopher
• Tried to make jurisprudence a genuine science
• a formula which would enable him to exclude any
material or factors which might obscure our perception
of such law.
• As a Positivist, Kelsen believed that
▫ the existence, validity and authority of law
▫ had nothing at all to do with such non-legal factors as
politics, morality, religion, ethics and so on
• The Pure Theory of Law (1934–35)
▫ The Pure Theory of Law is a theory of positive law. As a theory, it
is exclusively concerned with the accurate definition of its subject
matter. It endeavours to answer the question
 ‘what is the law?’, but not the question ‘what ought it to be?’
 It is a science and not a politics of law
• Restrict our analysis to the ‘norms’ of positive law
▫ those ‘oughts’ which provide that if certain conduct (X) is
performed, then a sanction (Y) should be applied by an
official to the offender.
 If X then Y
• Exclude impurities of things not objectively known, for
instance social purpose of law, it political function
• Although admits adulteration/mixing with other
sciences of sociology, political science, are understandable,
bcoz these are closely connected
▫ BUT want to make it pure and unaffected from mixture
with other science and to deal science of law by its own
limits and domain
Legal and Moral Norm
• Law is constituted by norms
• By ‘norms’ Kelsen means that
▫ ‘something ought to be or ought to happen, especially
that a human being ought to behave in a specific way’.
• Thus the statement ‘the door ought to be closed’ or a red
traffic light are both norms.
• But a norm, in order to be valid (ie, binding),
▫ must be authorized by another norm
▫ which, in turn, is authorized by a higher norm in the system.
• The hierarchy of legal norms that forms a legal system is
ultimately traced back to the Grundnorm or basic
norm of the legal system
• law and morality and Positivists?
▫ means that the validity of legal norms can flow only from
another legal norm, as opposed to a moral norm
Norm and Sanction
• Norms are also specific social techniques by
politicians to determine how individuals ought to
behave to promote order and peace.
• Norms also render the behaviour of individuals
lawful or unlawful by providing sanctions for
failure to comply with the norms
• Legal norm different because of this sanction of
state...
• legal system is founded on state coercion
• Tax Collector and Robber..both want your money
▫ There is no prior norm validating this order of robber
▫ His coercive order also lacks lasting effectiveness
A hierarchy of norms
• Complex series of interlocking norms from most general (sanctions
acc to constitution) to particular norm (and contractual bond)
• Each norm in this hierarchical system draws its validity from
another—higher—norm. The validity of all norms is ultimately based
on the Grundnorm
• Law is created by facts (eg, a judicial decision) which convey
normative force from the authorizing norm to the authorized norm.
• authorizing norm being valid and capable of endowing law-creating
acts with status to create law, the norm so created is also valid.
• Law-creating acts thereby confer validity from one norm to another
• All norms dependent on other norms, where ultimately reach top which
is grundnorm or basic norm
• Historically grundnorm is constitution....
▫ Bailiff coercive power to execute a decree
Grundnorm
• Not dependent on any other norm
• it must be presupposed
• we need this assumption in order to understand
the legal order
• “Grundnorm really exists in the juristic
consciousness is the result of a simple
analysis of actual juristic statements”
• A presupposition is not arbitrary
▫ Determined by reference to whether legal order as
a whole is “ by and large efficacious”
• So its validity depends upon it efficacy
Example of Juristic Hypothesis
• Religious Norm
• Father and Son
• Go to school....Why should I go to School
▫ Norm is binding on son
• Bcoz God has commanded that parents be obeyed....Why should one obey
God
▫ What is the answer
▫ Acc to him, because on presupposes that one ought to obey the command of God
 This is statement of validity of norm..which must be in believers’ thinking...that
gives validity to that religious morality
• So Why should law be obeyed
▫ Because legal norms objectively valid and derive ultimate validity from
grundnorm
▫ Presence of grundnorm performs two functions.
 Make coercive order as objectively valid...( order of law and not robber)
 Provided coherence and unity of a legal order/system.
 ‫اجعَ ْلنَا ِل ْل ُمت ا ِقينَ ِإ َما ًما ﴿‪﴾٧٤‬‬
‫اجنَا َوذُ ِريااتِنَا قُ ارة َ أ َ ْعيُن َو ْ‬ ‫َوالاذِينَ يَقُولُونَ َربانَا ھَبْ لَنَا ِم ْن أ َ ْز َو ِ‬
‫أ ُ اور وہ جو (خدا سے) دعا مانگتے ہيں کہ اے پروردگار ہم کو ہماری بيويوں کی‬
‫طرف سے (دل کا چين) اور اوَلد کی طرف سے آنکھ کی ٹھنڈک عطا فرما اور‬
‫ہميں پرہيزگاروں کا امام بنا‬
‫صبَ ُروا َويُلَقا ْونَ فِي َھا ت َ ِحياةً َو َ‬
‫س ََل ًما﴿‪﴾٧٥‬‬ ‫ولَ ٰـئِ َك يُ ْجزَ ْونَ ْالغُ ْرفَةَ ِب َما َ‬
‫ان (صفات کے) لوگوں کو ان کے صبر کے بدلے اونچے اونچے محل ديئے جائيں‬
‫گے۔ اور وہاں فرشتے ان سے دعا وسَلم کے ساتھ مَلقات کريں گے‬
‫َت ُم ْستَقَ ًّرا َو ُمقَا ًما ﴿‪﴾٧٦‬‬ ‫خَا ِلدِينَ ِفي َھا ۚۚ َح ُ‬
‫سن ْ‬
‫اس ميں وہ ہميشہ رہيں گے۔ اور وہ ٹھيرنے اور رہنے کی بہت ہی عمدہ جگہ ہے‬
‫ون ِلزَ ا ًما﴿‪﴾٧٧‬‬ ‫ف يَ ُك ُ‬ ‫س ْو َ‬‫قُ ْل َما يَ ْعبَأ ُ ِب ُك ْم َر ِبي لَ ْو ََل ُد َعا ُؤ ُك ْم ۖۚ فَقَ ْد َكذا ْبت ُ ْم فَ َ‬
‫کہہ دو کہ اگر تم (خدا کو) نہيں پکارتے تو ميرا پروردگار بھی تمہاری کچھ پروا نہيں‬
‫کرتا۔ تم نے تکذيب کی ہے سو اس کی سزا (تمہارے لئے) َلزم ہوگی‬
Validity, efficacy, and revolution
• efficacy (or effectiveness) of the whole legal order is a condition of the validity
(or legitimacy) of every norm
• That means that its laws are generally obeyed
• In The Pure Theory of Law he puts the matter plainly:
▫ ‘Every by and large effective coercive order can be interpreted as an objectively
valid normative order.”
• when that basic norm of the system no longer attracts general support, it may
be replaced d by some other basic norm
▫ what occurs after a successful revolution.
• According to Kelsen when the new laws of the revolutionary government are
effectively enforced, lawyers presuppose a new Grundnorm
▫ Dasso Case P.L.D. 1958 S.C. 553
▫ the Pakistan Supreme Court used jurist Hans Kelsen's theory that a revolution
can be justified when the basic norm underlying a Constitution
disappears and a new system is put in its place. When revolution came then
the old system will be replaced with new system
▫ Uganda Coup 1965, Rhodesian UDI in 1965
Critique
• Joseph Raz “ The basic norm replaces the
sovereign, otherwise nothing has changed.”
• It really possible (let alone desirable) to exclude
from a model of law social and political factors?
▫ Harold Laski described it as an “exercise in logic
but not in life”..Validity of ground norm still
depended on social consideration?
• Law is essentially coercive...neglects
regulatory function of law
• Unnecessary importance of sanction
H L A Hart
• Herbert Lionel Adolphus Hart (18 July 1907 –
19 December 1992)
• British Legal philosopher
• Practised Law, engaged with MI during WWII
• After War, decided to join teaching and initially
taught philosophy
• Later became Professor of Jurisprudence at Oxford
• One of the most leading philosopher of 20th Century
• Book Concept of Law “ most influential on legal
philosophy of 20th century”
▫ Debate between Lon fuller (morality of law) and Hart (
concept of law)
Criticism of Austin
• Command backed by sanctions
▫ True for some laws..criminal law
▫ Not true for some laws...Some laws only
facilitate by giving them powers to create some
right and duties under certain conditions
 law prescribe ways in which valid contract, will and
marriage are made..
 law of procedure not backed by sanction
• Law-maker not bound by command he gives
▫ Today even legislature that makes law is
bound by that law
▫ Origin of law and order backed by threat are
different
 Customs in particular society not stem from any
order or deliberate act
Habit of Obedience
• Austin fails to account for continuity of legal
system
• Sovereign 1 dies and S 2 succeeds..
• Will people obey new King or not?
• During intervening period, acc to Austin, no Law
since no sovereign
• In fact, existence of rule ensure continuity
• illimitable sovereignty ..constitutional limits on
legislature
• If electorate is sovereign, then it means they
themselves are obeying their commands
His main arguments
• Law are commands of humans beings. However he disagree to
command theory
• No necessary connection between law and morals, i.e. Law
as it is, and law as it ought to be
• Analysis (or study of meanings) of legal concepts is worth
pursing. It must be distinguish from
▫ Historical inquiries into cause and origin of law
▫ Sociological inquiries into relation between law and other social
phenomena
▫ Criticism or appraisal of law, whether in terms of moral, social aims,
function or other wise
• A legal system is closed system in which correct legal decisions
can be deduced by logical means from pre-determined legal
rules without reference to social aims, policies, or moral standards
• Moral judgement can’t be established or defended by
rational arguments, evidence or proof as statement of act can be.
External and Internal Aspect of law
• There internal and external point of view of
law and only by understanding both, one can
understand law
▫ External aspect of a rules is it objective existence
as observed by outsider
▫ Internal aspect is sense of obligation to
observe the rule
Primary rule
• Every society, even primitive society which is less complex, has rules
of obligations (primary rules of obligations –to do or not to do
certain acts). These rules may be backed by sanction in the form of
social pressure (individual may feel guilty due to guilt for not
following that rule)
• But as society become large, things become complex and three
problem
• In this situation, thus need for some other rule ( secondary rules)
▫ Uncertainty...if any group live acc to standard different from other
group, how to determine any particular standard since there is not
recognized standard
▫ Static. Process of change is slow because it need to become habitual
▫ Inefficiency...Whether a rule is violated or not? There would be
dispute..since no agency especially empowered for this purpose
Secondary Rules
• To correct above three defect in respect of primary
rules
• Rule of recognition for 1st defect
▫ Recognize certain rule that would become standard
and thus not uncertainty
• Rule of change for 2nd defect
▫ Any legislative body or parliament to respond to
emerging problems, and thus not static issue
• Rule of adjudication for 3rd defect
▫ Formulation of agency to end inefficiency issue
• Only combination of both primary and secondary
rule would result into a legal order
 ‫ص ِل ُحوا بَيْنَ أَخ ََو ْي ُك ْم ۚۚ َواتاقُوا اللاـهَ لَعَلا ُك ْم ت ُ ْر َح ُمونَ ﴿‪• ﴾۱٠‬‬ ‫ِإنا َما ْال ُمؤْ ِمنُونَ ِإ ْخ َوة فَأ َ ْ‬
‫مومن تو آپس ميں بھائی بھائی ہيں۔ تو اپنے دو بھائيوں ميں صلح کراديا کرو۔ •‬
‫اور خدا سے ڈرتے رہو تاکہ تم پر رحمت کی جائے‬
‫ساء ِمن •‬ ‫س ٰى أَن يَ ُكونُوا َخي ًْرا ِم ْن ُھ ْم َو ََل نِ َ‬ ‫ع َ‬‫يَا أَيُّ َھا الاذِينَ آ َمنُوا ََل يَ ْسخ َْر قَ ْوم ِمن قَ ْوم َ‬
‫س‬‫ب ۖۚ ِبئْ َ‬ ‫س ُك ْم َو ََل تَنَابَ ُزوا ِب ْاْل َ ْلقَا ِ‬
‫س ٰى أَن يَ ُك ان َخي ًْرا ِم ْن ُھ ان ۖۚ َو ََل ت َ ْل ِم ُزوا أَنفُ َ‬‫ع َ‬‫ساء َ‬ ‫ِن َ‬
‫الظا ِل ُمونَ ﴿‪﴾۱۱‬‬ ‫ان ۚۚ َو َمن لا ْم يَتُبْ فَأُولَ ٰـئِ َك ُھ ُم ا‬ ‫وق بَ ْع َد ْ ِ‬
‫اْلي َم ِ‬ ‫س ُ‬‫ِاَل ْس ُم ْالفُ ُ‬
‫مومنو! کوئی قوم کسی قوم سے تمسخر نہ کرے ممکن ہے کہ وہ لوگ ان •‬
‫سے بہتر ہوں اور نہ عورتيں عورتوں سے (تمسخر کريں) ممکن ہے کہ وہ‬
‫ان سے اچھی ہوں۔ اور اپنے (مومن بھائی) کو عيب نہ لگاؤ اور نہ ايک‬
‫دوسرے کا برا نام رکھو۔ ايمان َلنے کے بعد برا نام (رکھنا) گناہ ہے۔ اور جو‬
‫توبہ نہ کريں وہ ظالم ہيں‬
Salmond on Sources of law
• Two main source
▫ Formal: from where law derives its force and
validity. Will of state in form of statute or decision
of courts
▫ Material : from which the matter/conetent is
derived not validity
 Legal source: Legislation, precedent, custom,
agreement, and professional opinion
 Historical
Legal and Historical Sources
• Legal Sources:
▫ instrument or organ of state by which legal rules are created; legislation,
precedent
▫ Authoritative and followed by Courts as of right
▫ Gates through which new principles enter into realm of law
• Historical:
▫ where rules were to first found in an unauthoritative form
▫ No followed by Courts as of right
▫ Operate indirectly
• Act of Parliament and Work of Bentham
▫ Former become law automatically, latter may or may not ( depends upon
acceptance by legislature or judiciary)
▫ Pakistani precedent binding upon lower court but Indian precedent not binding
rather a historical fact merely
▫ Court decision may be based on work of jurist, which itself may be based upon
Code Justinian
 Precedent has its source both in law and fact, while historical is merely factual and
not legal
Some criticism on Salmond’s division
• Allen...attaching little importance to historical sources
• Keeton...criticise formal source which in modern time is State BUT
State is an organization that enforces law and not source of law in
technical law
▫ Keeton gave his own classification
 Binding source. Precedent, legislation, custom
 Persuasive Source...juristic opinions, morality, equity
• Salmond formal and material source couldn’t remain convincing
and excluded by later editors of his book on Jurisprudence
▫ Now only legal and historical sources in his book
 Legal: recognized by law itself...only gate for principle to enter the law
 Historical: not so recognized
▫ Himself acknowledged that distinction between legal and historical
should not pressed too far bcoz it is not very clear
 For ins. Persuasive Precedent, although a source of law, would not be
binding
Legal Sources of English Law
• Enacted Laws
• Precedents
• Customary Law
• Conventional law
• Juristic opinions
Sources of Law
• Meaning ..used in different senses
▫ Sovereign, State wherefrom deriving validity or force
▫ Origin or the beginning of law
▫ Causes which brought into existence rules which acquire that force
• Oppenhiem ..a historical fact out of which the rules of conduct come
into existence and acquire legal force.
• Natural Law. Divine origin. Every law gift of God and decision of
sages.
▫ Quran, Hadith, Bible, Torah, Vedas
• Positive Law (Austin) three different meanings
▫ Firstly..mediate and direct...the author of law
▫ Secondly historical docum ;!:ent from which body of law may be known
▫ Causes which have brought into existence the rules which later acquire
force of law..custom, precedents etc
• Our focus shall remain on Salmond’s appraoch
‫الظ ِن ِإثْم ۖۚ َو ََل •‬ ‫ض ا‬ ‫لظ ِن ِإ ان بَ ْع َ‬ ‫يرا ِم َن ا ا‬ ‫ين آ َمنُوا ْ‬
‫اجتَنِبُوا َكثِ ً‬ ‫يَا أَيُّ َھا الا ِذ َ‬
‫ب أ َ َح ُد ُك ْم أَن يَأ ْ ُك َل لَ ْح َم أ َ ِخي ِه‬
‫ُا ۚۚ أَيُ ِح ُّ‬
‫ُ ُكم بَ ْع ً‬
‫سوا َو ََل يَ ْغتَب با ْع ُ‬‫س ُ‬ ‫ت َ َج ا‬
‫َم ْيتًا فَ َك ِر ْھت ُ ُموہُ ۚۚ َواتاقُوا اللاـهَ ۚۚ ِإ ان اللاـهَ ت َ اواب ار ِحيم‬
‫اے اہل ايمان! بہت گمان کرنے سے احتراز کرو کہ بعض گمان •‬
‫گناہ ہيں۔ اور ايک دوسرے کے حال کا تجسس نہ کيا کرو اور نہ‬
‫کوئی کسی کی غيبت کرے۔ کيا تم ميں سے کوئی اس بات کو پسند‬
‫کرے گا کہ اپنے مرے ہوئے بھائی کا گوشت کھائے؟ اس سے تو‬
‫تم ُرور نفرت کرو گے۔ (تو غيبت نہ کرو) اور خدا کا ڈر رکھو‬
‫بےشک خدا توبہ قبول کرنے واَل مہربان ہے‬
Legislation
• Organ of State?
• Function of Legislature
• Means law making or law made by legislature
• Wider sense ..Any act that adds or alters the law
▫ For instance Precedent
 But difference is the presence/absence of actual dispute
• Limited Sense is general use Act by legislature
▫ Laying down of rules by superior or subordinate legislature
• All acts of legislature may be called legislation but Jurisprudentially it
denotes
▫ Expression of will of legislature directed to making of the rules of law or
▫ Formal declaration of the legal rules by the legislative organ of body politics
• In modern democracies, legislative power vests in elected representatives
▫ A federal state may have two bodies of legislature i.e. Centre and unit/provincial
Limitation on legislation
• The presence of Fundamental Rights in modern constitution
• In UK, traditionally parliament sovereign
▫ But Recent developments put some limitations
 Inclusion in EU in 1973 that made laws of UK subject to EU laws
 Some restrictions regarding under Human right Act 1998 that
incorporated European Convention on Human Rights 1950
 Different from EU because its part of Council of Europe
 Any Court can issue declaration of incompatibility if British legislation
against Human Right Convention
• In Pakistan ?
▫ Chapter 1 of Part II of the Constitution on Fundamental Rights Art 8
▫ Quran and Sunnah
▫ Basic Structure of Constitution. Although academic but Objective
resolution read with other provisions reflects salient feature of
federalism and Parliamentary form blended with Islamic Provisions PLD
1997 SC 426 ( Mahmood Achakzai Case)
▫ Basic Structure of the constitution can’t be changed PLD 2010 SC 1165 ?
Primary/Supreme and
Secondary/Subordinate Legislation
• Supreme from sovereign and can’t be annulled,
repealed or controlled by other legislative authority
• Secondary/subordinate by any other authority and
dependent upon Supreme
• In modern time, following reason need for subordinate
legislation
▫ Work load
▫ Technical legislation
▫ General and not detailed legislation
• Thus common to delegate powers to government and
autonomous bodies
• Every delegated legislation must conform to primary
legislation and can be repealed by latter
Forms of Subordinate/Secondary
Legislation 1. Colonial legislation
• Colonial legislation. Law making by colonies
subject to control of imperial legislature
• Not that relevant in modern time due to
decolonization
• Question whether delegatee can further transfer
legislative power
▫ In Powerll Apollo Candle Co. It was held that
colonial legislature is not mere delegate of
imperial parliament and hence can delegate its
legislative powers to other bodies which are
dependent upon it
2. Executive Legislation
• Function of Executive?
• Law making by Executive
• Today practically all laws contain one section
delegating law making to executive to
supplement the main law
3. Judicial Legislation
• Means powers of superior courts to make rules
for regulating their procedure
• Precedent is not properly considered delegated
legislation
• Ex. High Court Rules, Supreme Court Rules
Municipal Legislation
• Given law making powers to manucipal by
enactment establishing them
• Powers extend within territorial limits of such
municipal authorities
▫ Different rules by Islamabad Municipal
Corporation regarding health, sewerage etc
Autonomous Legislation
• Above forms relates to delegation to subordinate
departments
• Exceptionally can transfer to private individuals
or group of individuals
▫ Such powers limited to matters that concerns
them
▫ AOA of a registered company
▫ Whether AOA is conventional or autonomous?
 Autonomous because agreement not always
necessary for ex. AOA altered by majority is binding
on minority shareholders
 ‫ارفُوا ۚۚ ِإ ان •‬ ‫شعُوبًا َوقَبَائِ َل ِلتَعَ َ‬ ‫اس ِإناا َخلَ ْقنَا ُكم ِمن َذ َكر َوأُنث َ ٰى َو َجعَ ْلنَا ُك ْم ُ‬ ‫يَا أَيُّ َھا النا ُ‬
‫ع ِليم َخ ِبير ﴿‪﴾۱٣‬‬ ‫أ َ ْك َر َم ُك ْم ِعن َد اللاـ ِه أَتْقَا ُك ْم ۚۚ ِإ ان اللاـهَ َ‬
‫لوگو! ہم نے تم کو ايک مرد اور ايک عورت سے پيدا کيا اور تمہاری قوميں •‬
‫اور قبيلے بنائے۔ تاکہ ايک دوسرے کو شناخت کرو۔ اور خدا کے نزديک تم‬
‫ميں زيادہ عزت واَل وہ ہے جو زيادہ پرہيزگار ہے۔ بےشک خدا سب کچھ‬
‫جاننے واَل (اور) سب سے خبردار ہے‬
‫ان فِي •‬ ‫اب آ َمناا ۖۚ قُل لا ْم تُؤْ ِمنُوا َولَ ٰـ ِكن قُولُوا أ َ ْسلَ ْمنَا َولَ اما يَ ْد ُخ ِل ْ ِ‬
‫اْلي َم ُ‬ ‫ت ْاْلَع َْر ُ‬ ‫قَالَ ِ‬
‫ش ْيئًا ۚۚ ِإ ان اللاـهَ َ‬
‫غفُور‬ ‫سولَهُ ََل يَ ِلتْ ُكم ِم ْن أ َ ْع َما ِل ُك ْم ہے َ‬‫قُلُو ِب ُك ْم ۖۚ َو ِإن ت ُ ِطيعُوا اللاـهَ َو َر ُ‬
‫ار ِحيم ﴿‪۱٤‬‬
‫ديہاتی کہتے ہيں کہ ہم ايمان لے آئے۔ کہہ دو کہ تم ايمان نہيں َلئے (بلکہ •‬
‫يوں) کہو کہ ہم اسَلم َلئے ہيں اور ايمان تو ہنوز تمہارے دلوں ميں داخل ہی‬
‫نہيں ہوا۔ اور تم خدا اور اس کے رسول کی فرمانبرداری کرو گے تو خدا‬
‫تمہارے اعمال سے کچھ کم نہيں کرے گا۔ بےشک خدا بخشنے واَل مہربان‬
Advantages of Legislation
• 1. Process of legal evolution three steps, viz,
▫ Making new laws
▫ Repealing old laws
▫ Modifying current laws
• Legislation can make, repeal and modify current laws
with simplicity and efficacy
▫ In rigid system of precedents, cannot overrule a settled
principle of law
 Although modern trend of strict adherence to precedent
disappearing since Supreme Courts can overrule but Court has
to wait till a dispute comes before it
• Thus Legislation possesses greater abrogative power,
and becomes a more effective instrument of legal
growth and law reform
• 2. Division of Labour also increases efficiency
▫ Legislature to make laws
▫ Judiciary to interpret
• Separate time for deliberation as to effects and defects of law
by both bodies
• 3. Precedent conditioned by the facts of the case.
▫ no time for reflection on its merits and demerits in relation to the
generality of cases
• Legislation can comprehend the generality of problem in all
dimensions.
• Satisfies natural justice because laws are known before they
enforced.
▫ A precedent operates retrospectively, because it is applied to facts
which occurred prior to the formulation of the law.
• 4. The ex post facto nature of precedent is a
violation of moral justice as well
• In legislation, citizens know the law before they
would be charged with.
• In the case of a precedent, a person is punished
for violating a law before that law is made
known.
• This results in greater injustice when one
precedent is overruled by another, making all
transactions on the basis of the earlier precedent
unlawful.
• 5. Precedents depends on the accidental course
of litigation.
▫ A judge can declare law only in the course of deciding
a cases actually before him.
▫ Any systematic development of law cannot take place
through such accidental course of litigation.
• Legislation, in comparison, is a much better
planned activity, which can anticipate social
problems, and provide for legal rules to solve
those problems.
• The legislature can also draw lessons from the
varied experience of a cross section of
community.
• 6. Legislation for easy filling up a gap, settle a doubt or
correct a mistake in the existing law
▫ The court can when a case on the point comes before it for
adjudication.
• 7. Another advantage superiority in the form.
▫ It is concise, clear and easily accessible.
▫ A statute follows a definite form, and the provisions are stated
with brevity and clarity.
▫ Judgment, on several pages, and the task of extracting the
ratio decidendi is a difficult one even for persons well versed
in law.
▫ Salmond aptly observes: ‘Case law is gold in the mine- a few
grains of the precious metal to the ton of useless matter –while
statute law is coin of the realm ready for immediate law.
Disadvantages
• The first rigid nature.
▫ applies irrespective of circumstances,
▫ precedent can be distinguished or modified according to the circumstances.
Precedent is, therefore, more elastic and flexible.
• Legislation is hypothetical in nature because it proceeds on the basis of
assumed facts.
• The application of legislation to complex fact situations often becomes
difficult.
• In precedents, the judges shapes the law with reference to real facts,
and it is always possible to shape the law to suit the needs of individual
cases. In this sense precedent is more practical than legislation.
• An advantage of legislation, which we stated above, is its superiority in
form which may, in some cases, become a disadvantage.
▫ If the drafting of the law is defective, its meaning becomes ambiguous resulting in
difficulty in application.
▫ In case of precedents, on the other hand, the principles assume more importance
than words. This naturally gives the judges more freedom to interpret precedents.
Precedent
• One that pre (before) cedere ( to go)
• Something that go before, done before
• In law, it is decision already deliver by a judge
• Also known as stare decisis to stand by decision
• the Principle is that like cases should be
decided alike
• Why important
▫ Saves time of judges
▫ Save labour of judges
▫ Brings certainty, predictability and uniformity in the
application of law
▫ excludes arbitrariness, and legitimizes judicial power
• Continental system considers precedent only as
evidence of law, and not a source of law
▫ However its importance increasing there
• English system assume every decision should be
followed by subordinate/coordinate courts
• Influenced other common law jurisdictions
• Stare decisis postulates two conditions
▫ (i) there must be a settled judicial hierarchy
▫ (ii) there must also be reliable reports of cases
Classification:
Original and Declaratory Precedents
• The judicial decisions are of two types,
▫ those which create a new law, and
▫ those which apply known and settled principles of law
to the particular facts of a case.
• Both treated precedent
• Decisions which create a new law are called original
precedents (few in number but greater in
importance)
• those which apply known and settled principles of
law to the particular facts of case are called
declaratory precedents (several in number)
▫ Only original precedent is source of law
• The distinction between original and declaratory
precedents is based on opposite theories of
precedent
• One concede the law-making role of the judge.
because they lay down original or new principles of
law
• Other theory disagrees and consider precedent
declaratory only, judge only reiterate already
existing principles of law
• First view seems more persuasive
▫ In Pakistan power of SC to check validity of any law etc
Authoritative and Persuasive Precedents

• A widely accepted classification

• An authoritative precedent is one which the judge is bound to
follow irrespective of whether he approves it. Judge has not
choice
• Further divided
▫ Absolute. To be followed without any question
▫ Conditional. May be disregarded in limited circumstance
• A persuasive precedent is one which the judge is under no
obligation to follow
▫ Decision of Lahore HC for Peshawar HC
▫ Decision of foreign court
• Persuasive precedent and a conditionally authoritative
precedent distinction.
▫ former requires reason to support it, while the latter requires a
reason to reject it
RATIO DECIDENDI AND OBITER DICTA
• Precedent is binding? What does that mean?
▫ Rule/principle in that decision should be followed in
subsequent case with similar facts
• This rule/principle is known as Ratio Decidendi
• Ratio decidendi may best be described as the
underlying principle of a decision
• Pronouncements of law in the judgment, which are
not part of the ratio decidendi, are known as obiter
dicta
• has no binding force
• influences judicial thinking and may, in course of
time, become the ratio
Exception to Stare Decisis
• Rigid application of precedent?
▫ Judge may not adopt to changing situations
• Relaxation to the doctrine?
▫ Uncertainty and unpredictability
• Therefore, currently a balanced approach is followed by courts
• Precedent binding on lower courts
• While superior courts may reverse, in exceptional case, the
previous decision. These exceptions are
▫ If decision conflicts with previous decision of same court
▫ Impliedly overruled by a subsequent decision of higher court
▫ Decision was given in ignorance of terms of statute/rule
▫ Decision become obsolete
▫ Decision is given without application of mind, precedent or
without any reason
Judicial Techniques of using Precedent
• Refusal to follow a Precedent
▫ If it’s not binding but still judge does reasoning for not
following a precedent
• Distinguishing a Precedent
▫ Precedent applied when facts match. If facts don’t
match, it should be distinguished and not applied.
• Reversing a Precedent
▫ On appeal only
▫ Nullification of decision as well as principle therein
• Overruling a Precedent
▫ When principle is overruled in another case of similar
nature.