Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )

Email : [email protected]

CAUTION : This document does not

cover all the topics in the syllabus (due
to shortage of time) , nevertheless the
topics covered have been prepared
comprehensively from a variety of
sources .

Topics covered :

• Major Legal Systems

• Sources of Law
• Legal Schools/Theories

Rest of the topics can be covered from

Case Material or any other reference
material (A.K. Jain).
{ Hint : I think it would be sufficient to
not make you go through the trauma of
this subject ever again. }

I have tried my best to make it as

simplified as possible.
Hope it helps you !!
Regards: Abhishek Yadav
(Student , CLC)

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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
MAJOR LEGAL SYSTEMS Similarities with Romano-Germanic Family :
I. Influence of Christian morality & Renaissance –
There are 3 major legal systems: the philosophical teachings gave prominence to
individualism, liberalism , personal rights.
• ROMANO-GERMANIC Family II. Shared vision of justice.
• COMMON LAW Family III. Expansion throughout the world via
• SOCIALIST LAW Family colonisation or reception.

ROMANO GERMANIC Family :

• Legal science has been developed on the basis
of Roman jus civile (civil law/law of land). SOCIALIST LAW Family :
• Laws = rules of conduct—linked to idea of Such countries formerly belonged to the Romano
justice and morality. Germanic Family . Hence Similarities :
• Law has evolved for historical reasons, as a I. Law is perceived as rule of conduct
private law—to regulate pvt relations. II. Scholarly efforts--Product of legal science
• Founded by scholarly effort of Euro.Universities developed on the basis of roman law by
• Legislature plays important role in making laws. Universities.
• Vast penetration due to colonisation efforts and III. Retains the divisions of law & legal terminology
reception by other countries. of Roman law.
• Actual application and adm. of law was left on IV. Source —revolutionary work of Legislature
legal practitioners (and not scholars). which repre. the popular will guided by
Communist Party.
COMMON LAW Family : Differences :
Different from Romano Germanic family : I. Socialist Law is revolutionary in nature, rather
I. Formed primarily by judges—who had to than ‘static nature’ of Romano-Germanic Law.
resolve specific disputes.. II. Object of Socialist Law is—to create condition of
II. seeks to provide solution to trial, rather than a new social order—in which the very concept of
general rule of conduct. state and law will disappear.
III. it is essentially a public law III. Originated in 1917 Russian Revolution(USSR).
IV. Learning of Romanist (based on jus civile) IV. Now, all law has become public law as the pvt
played a minor role in develop. of Common Law law has lost its imp.
– which is public law issuing from procedure.
V. Origin from Royal British Power—to est peace.

COMMON LAW SUSTANTIVE/STATUTORY

LAW (Civil Law—Romano
Germanic )

--judge made --made by legislature

--based on judicial --based on legislations and
decisions , precedents statutes.
-- uncodified (Tort) --codified
--here for the lawyer, --here for the lawyer, the
the foundation of law foundation for law is ‘text
is ‘case’ ie. Statute’ .

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]

SOURCES OF LAW
Salmond classified into 2 :
Legal/Formal Sources Historical/Material Need of Delegated/Subor. Legislations:
recognised by law not recognised by law • Want of time: parliament is too occupied with
are authoritative unauthoritative matters of public policy and national imp.
Eg: constitution, Eg: legal writings , • Dynamism of Society: things have become very
statutes, precedents, juristic opinions complicated, need of new rules.
customs recognised by • Emergency Situation: during this period
law ‘executive’ is give power to make laws.
• Local matters
Sources of law are :
• Constitution ADVANTAGES of Legislations:
• Legislations I. Certainty and Precision
II. Instrument of legal reform: destructive and
• Precedents
reformative agent ; dynamic (to meet the needs
• Customs
of the present situation—Dowry Proh. Act , Env.
Such sources differ in different countries:
Protection Act )
--Common Law Family: depends on constitution,
III. Conforms to natural justice: since laws are
precedents & legislations (INDIA)
known before they are enforced.
--Civil Law Family: depends on legislations,
customary law and treaties .
PRECEDENTS :
Acc to Oxford Dictionary : ‘’Precedent—is previous
CONSTITUTION :
instance or case which may be taken as an example
• Ultimate source ; Fundamental law of India
of rule for subsequent cases of similar
• Source of all rights (FR) and duties(FD)
nature/circumstances.’’
• Binding on all – any violation—court action
Every developed legal system possesses a judicial
LEGISLATION : organ—whose main function is to adjudicate the
It is a source of law in the declaration of rules by a rights and obligations of the citizens.
competent authority (Parliament/State Legi.). {Customs—Legislation—Creative role of judges}
The most important and biggest source of law.
Legislation—2 types : Judges play an imp role in development of the law.
Supreme Legislation Subordinate/Delegated For instance, English Legal System—reliance on the
-- laws made by the --laws made by any decision of the judges.
sovereign authority other authority (than • INDUCTIVE Method: Before deciding a case,
itself. (In India, the supreme authority), judges look into previously decided cases of
Parliament is supreme) by powers delegated by similar nature—deduce general rules—apply
the sovereign authority. them to the case before them .
--Eg: Parliament laws, • DEDUCTIVE Method : judges decide case acc to
President’s ordinance. --Eg: rules&regul. by the the law laid down in the code. (Civil Law Family)
Universities, Govt Dept.
--cannot delegate ,Municipalities. TYPES :
important legislative -- Types: Authoritative Precedents Persuasive Precedents
functions a) Autonomous Laws: --Judges ‘must follow’ --Judges ‘may follow’ ,
made by the group of whether they agree with as they are not bound
--No legal limitations individuals/body . Like it or not. to do so.
upon its power Railways, University. --No discretion of judge -- Discretion of judge.
(however, it is subject to b) Judicial Laws: --Eg: Decision of SC must --Eg: Decision by Delhi
some constitutional made by the judicature be followed by all lower HC may be used by
restrictions) like : SC and HCs. courts. Madras HC.
c) Local Laws: powers
given to local bodies—
Zila Parishad, Panchayat.
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
d) Precedents bring certainty to law : fresh
EVOLUTION : decisions everytime—different opinions—
• The ancient text like Mahabharata suggest uncertainty – bad legal system.
‘’that path is right which has been followed by e) Certainty ,Predictability and Continuity of law:
the virtuous men’’—shows the theory of helps people to decide how the court is going to
precedent . However, there is no specific react against a particular offence.
evidence of its usage. f) Bring flexibility in law : judges mould the law
• Medieval times: absence of well organised acc to changed conditions; at the same time
judicial system – no evidence of theory of helps check any arbitrary decision.
precedent.  Eg: Right to property as FRlater, ... as
• British Rule : doctrine of precedents took its a legal right (held in Minerva Mills case)
birth . Privy Council was set up as the final g) More practical: since it is based on the actual
appellate tribunal. Its decisions were binding on cases handled by the judge—experience.
all the courts in India (presidency courts, HCs) -- h) Helps Judges avoid miscarriage of justice: acts
this introduced uniformity and certainty of law. as a guide to judges—prevent prejudice and
• Indian Constitution,1950 : Privy council and partiality – as precedents are binding.
Federal Court ceased. New judicial system was
set up—Dist Court < HC< SC . DEMERITS :
a) Possibility of overlooking the authorities:
The decision of the HC is binding on all the increasing no. of cases—difficult to trace out all
subordinate courts and tribunals under its relevant authorities.
jurisdiction. b) It is based on the subjectivity of Judge – what he
 However, decision of one HC is not binding on considers as material facts in earlier case.
the other HC. (‘Persuasive Authority’) c) Conflicting decisions of Superior tribunal(SC) :
here the lower court has to choose between
The law declared (ration decidendi + obiter any of the 2 conflicting opinions – subjectivity
dictum) by the SC is binding on ‘all courts’ in the d) Development of law solely depend upon
territory of India (Article 141). incidents of litigation : sometimes important
SC in the case Vasudeo v. State of Maharashtra question of law remain unadjudicated.
clarified that ‘ratio decidendi’ and ‘obiter dictum’ is e) Sometimes extremely erroneous decision is est
binding for lower courts as law bcos it is not brought before SC

The earlier decisions of SC command great

respect . In normal situation, the judgement
pronounced shall be final. ‘APPLICATION’ OF DOCTRINE OF PRECEDENTS :

EXCEPTION: in certain cases, SC is not bound by Doctrine of Precedent pre-supposes the existence
its own decisions( i.e the ‘doctrine of stare decisis’ of hierarchy of courts.
is not applicable to SC) in case the earlier decision is To understand the extent to which the courts are
detrimental to public rights/welfare at large – as bound by previous decisions, it is imp to understand
stated by SC in Sajjan Singh v. State of rajasthan. what actually constitutes a decision :
• Ratio Decidendi :. It is a rule of
law/principles based on material facts, upon
MERITS (of the doctrine of precedents) : which decision is founded.
a) It shows respect for opinions of our ancestors: • Res Judicata : what the case decides
Eminent jurist like Coke and Blackstone have between the parties. This is not subject to
supported the doctrine. further dispute.
b) Precedents are based on customs and hence
should be followed. The authority of a decision as precedent lies in its
c) Matter of great convenience : matter once ‘Ratio Decidendi’  There are cases which involve
decided should not be subject to re-argument. questions which can be answered on the basis of
It will save time and avoid delays. ‘principles’—which are deduced by separating
material facts from immaterial elements. And as a
result—the principle that comes out can also be
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]

applied to other similar cases also. This principle is ‘Stare Decisis’ :

called ‘ratio decidendi’. • In India, this doctrine was introduced by the
• In‘’Donoghue v. Stevenson’’, the ratio decidendi British Legal System.
was that it exploded the doctrine of privity of • It means ‘’let the decision stand in its rightful
contract and held that manufacturer is liable to place’’. When the decision contains a new
consumer for his negligence in manufacturing principle (rule of law), it is binding on all lower
the goods(which can’t be inspected by the courts and has persuasive authority on
retailer) . Plaintiff was entitled for damages for equivalent courts. This rule is based on
the decomposed snail found inside beer bottle expediency and public policy.
which was opaque. • It pre-supposes the hierarchy of courts.
o SC > HC > DC (article 141) ; HC > DC
o HC is not bound by other HC
’Obiter Dictum’  the issue which needs no o SC is not bound by its decision
determination of general principles , are answered o Division Bench > Single Judge Bench
on the basis of circumstances of particular case.
Goodheart defines O.D. as—‘’ conclusions based on
the fact, the existence of which has not been Stare Decisis Res Judicata
determined by the court.’’  applies to the rule of applies to the decision
law in a case. in dispute.
In the course of judgement , judge may make binds everyone in binds only the parties
certain observation which are not relevant to the future ,for case with to the present case.
issue before him—Eg: he may cite some similar material facts.
hypothetical situation. Such have persuasive applies to decisions of applies to decision of
authority and are not binding on the courts , higher courts all courts.
however the courts may seek help using them. comes into operation ....after the lapse of
immediately after the period of the time limit
In S.R. Bommai v. Union of India, the SC held that decision is handed down for appeal.
secularism is a part of basic structure of the by the higher court.
Constitution (‘’ratio decidendi’’).
Also, Justice Ahmadi opined that rights contained in Overruling :
Ar 15,16, 25 are a part of basic structure. This was Refers to the action of the superior court in
not directly related to the case, hence was ‘’obiter upsetting the ratio decidendi laid down by the lower
dicta’’. court in some other case. However, it does not
affect the previous decision(‘res judicata’) so that
CREATIVE ROLE Judge has to find out ‘ratio the parties continue to be bound . Such overruling
decidendi’ . It is a very complex task of which apply for future decisions are called
distinguishing between ‘ratio decidendi’ (reason ‘’prospective overrulings’’.
which led the court to reach a decision) and ‘obiter
• SC in Golaknath v. State of Punjab, laid down
dictum’. There may be cases of 1st impression—
the doctrine of ‘prospective overruling’’.
where there is no provision in statute law or
{NOTE : SC of America highlighted the dangers in
precedents—considers social ideals,morals, natural
giving retrospective effects to overruling to the
justice etc.
previous wrong decisions by the courts. }
• It is ratio decidendi (not obiter dictum) that has
binding effect as a precedent.
• It is for the judge to determine ratio decidendi
and apply it to the case. (flexibility)
• Precedents have been compared with wine—
which improves with age, but only upto a
certain period of time , after which it starts
loosing its relevance.

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
As laws grow into complexity, the common
consciousness is represented by lawyer and
LEGAL THEORIES/SCHOOLS jurists – who formulate legal principles.
• He was against the modern codification of law
OF LAW
in Austria and France. Rather there was a need
for scientific study of a legal system and its
HISTORICAL SCHOOL continuous development, by which each
generation adapt the law to its needs.
Historical approach to law derived its inspiration
from the Roman Law. This was under the era of • Savigny’s 2 convictions : (a) legal science is
nationalism under the leadership of Nepoleon— better than legal reform ; (b)popular
spirit of individualism pervaded the legal thought. consciousness is source of all law.
New classes (4th estate—labour class) grew.
## After restoration of national govt (after CRISTICISM :
Nepoleon) – problem of ‘’codification’’ drew i. Inconsistency in the theory: on one hand he
attention. asserted that origin of law is in the popular
consciousness , and on the other hand, he
SAVIGNY : argued that some principles of Roman Law were
• Teacher at University of Berlin. universal in application.
• He attacked the idea of codification in Germany, ii. ‘Volksgeist’ not the exclusive source of law:
as he knew the defects of contemporary codes. sometimes as alien legal system can be
successfully adapted in other country (India).
His view point : Also at times, a single person influences the
• Law is matter of unconscious and organic legal system of the country, which cannot be
growth –hence law is found , not made : said to represent the popular consciousness.
Acc to him, ‘’Law is a product of people’s life—it iii. Overlooked factors that influence the law: many
is a manifestation of its spirit. Law has its source rules, in modern times, are a result of a
in the general consciousness (VOLKSGEIST) of conscious effort of a selective group—like laws
the people ‘’. relating to Trade Unions , are a result of long
• Law in not universal in its application and and violent struggle between conflicting
validity. Law has a national character, just like interests within the society.
‘language’ and ‘constitution’ in all societies are iv. Juristic Pessimism : Acc to Pound , Savigny
natural manifestation of popular life and by no encouraged ‘juristic pessimism’ i.e. legislations
means product of man’s free will. Hence, law must accord popular consciousness. It
develops with the life of the people. Law, discouraged creative activity of jurists and legal
language, custom and govt have no separate reform .
existence. What binds them into whole is
common conviction of the people. CONTRIBUTIONS:
i. Considered to be the greatest jurist of 19th Cent.
• Early development of law is spontaneous , and
ii. His theory came as a reaction against the 18th
later it is developed by Jurists: During the earlier
century advocates of ‘rationalism and Principle
stages, law develops spontaneously due to
of Natural law’ – who tried to est a legal theory
‘internal necessity’{Political Element}.
of universal application without consideration
However, after a stage it is enriched by the
Lawyers who remain as an organ of popular of time, place and history of law.
iii. He made the juristic world conscious of the
consciousness. {Technical Element} . Last stage
iceberg quality of law—with its present pinnacle
is Legislation i.e. lawyers hold imp role than the
concealing the 9/10th of its past (Volksgeist).
legislators.

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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
iv. Volksgeist Theory—is apt of the fact that • It insists that jurists should focus their attention
nation’s legal system is greatly influenced by the on social purposes and interests served by law ,
culture and character of the people rather than on individuals and their abstract
v. His influence in Germany was great and rights i.e. more emphasis on functional aspect
codification was delayed for a long time. of law rather than abstract content.
vi. He sowed the seeds for Evolutionary and • OBJECTIVE—to study the effect of law and
Sociologists Theories – hence was called as society on each other. Law is concerned with
‘Darwinian before Darwin’ and ‘Sociologist effect on society. And therefore, it wud be
before Sociologists’. erroneous to treat law as a –Command, God’s
vii. Credited for the powerful dev of the study of will or People’s conscience.
legal history. • NATURE : (a) it discards rigid legal
viii. Inspired Maine , Lord Bryce etc in England to do Positivism(analytical positivism) which relied
studies of various legal systems on historical on the fact that law is solely based on coercive
lines. power of the State and against the ideals of
ix. Responsible for the emphasis placed more morality and justice.
recently upon a ‘people’s feeling of right’ (b) it opposed the ‘Historical School’ for its
against the dead letter of statute or precedent. undue insistence on past customs, traditions
and values—paved growth of law—led to
narrow nationalism in Germany .

BACKDROP : Customs governed society

Supremacy of Church(Priests)  State dominance
Renaissance and Legal Philosophers grew(
individual liberties and rights) Despotism(Nazism)
 Finally need to review to balance btw State,
Welfare of society and individual interest.

ROSCOE POUND (1870-1964)

Was a judge in Supreme Court of Nebraska. Also
was a professor of jurisprudence at Harvard Law
School. Most influential jurist to develop American
SOCIOLOGICAL SCHOOL Sociological Juris.
’’Sociological Jurisprudence’’ is a functional study
of law to resolve immediate problems and I. Emphasis on Functional Aspect of the Law :
conflicting interests of the society, with tools and Acc to him, the ‘end’ of the law should be to
techniques(judicial decisions and adm.), which satisfy maximum wants with minimum friction.
promote harmony and balance of interest in He laid emphasis on functional aspect of law
society. and his approach has been termed as
’Sociology of Law’’ is descriptive study of law and ‘functional school’.
legal institutions of the society ( i.e. just theoretical II. The task of law is ‘Social Engineering’ : here
in nature.) S.E. means a ‘’balance’’ between the competing
interests of the society.
And the Jurists, Courts and Legislators are
• This school emerged as a result of synthesis of
responsible for its commission—they must
various juristic opinions. It considers law as a
study the effects of laws on the ‘society as a
social phenomenon—relationship of law with
whole’.
other contemporary social institutions.

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 Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
Various interests which law seeks to protect are Practical theory-- points out the importance of :
classified into 3: studying the actual legal functioning, social research
for good law making .
a. PRIVATE Interests: include he points out responsibilities of lawyers, judge
• individuals interest of and jurists.
personality (Eg: personal
integrity, reputation , freedom CRITICISM :
of conscience ) – protected by • Use of the word ‘engineering’ is criticised as it
Law of Torts , Contract , Crime equated the society to factory like
• Interests of domestic relations mechanism(suggest the mechanical application
(Eg:marital , parental) of law). Law is a social process rather than the
• Interests of property, result of applied engineering.
succession , inheritance Dynamic feature of law in undermined. (Society
b. PUBLIC Interests : include is dynamic , while factory is static)
• Preservation of State • ‘Theory of interests’ has been criticised as it has
• State as a guardian of social no significance in the pluralistic socities where
interests – public employment there are linguistic, ethnic, religious minorities
c. SOCIAL Interests : include with diverse interests. Harmonising their
• Preservation of general peace interests in not an easy task to be performed by
and health courts.
• Preservation of social institution
• Preservation of morality • Value given to different interests changes with
• Protection to economically the political and legal system : Eg— Liberal govt
weaker sections of the society. focuses more on individual freedom and rights ,
III. Jural Postulates of Pound : to evaluate the as opposed to Totalitarian Govt which favours
conflicting interests in due order of priority, interest of state.
there are certain basic ‘assumptions’ called Jural
postulates of the society. These are :
a. In a civilised society , men must THEORY OF ANALYTICAL- POSITIVISM
assume... that others will not commit
any intentional aggression on them. Positivist Movement started in 19th Century—as a
b. ... that they can control what they have, reaction against the ‘a priori’ methods of thinking .
use what they have created on own . Prevailing theories of ‘Natural Law’ shared the
c. .... that others act in good faith feature of turning away from the realities of actual
d. .... that others will act with due care law to discover principle of universal validity. This
Pound said-- that these ‘’postulates’’ are ‘NOT could not satisfy the intelligentsia who believed in
absolute’ but they have a relative value. They are the spirit of new scientific learning. Acc to them, the
sort of ideal standards which law should pursue in natural law postulates were without foundation and
society. These are dynamic in nature—keep a result of extrapolation.
evolving.
The term ‘positivism’ has many meanings as laid
CONTRIBUTIONS : down by Professor Hart :
 His contribution to juri is great . He avoided all • Laws are commands (like Austin said) because
sort of exaggeration—speaks of value but said they the most important aspect of law is its relation
are relative , emphasised on social engineering with the State.
while maintaining the balance. • Not concerned with the past or future of law

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
• Law is ‘as it is actually laid’ (positum) , and not H.L.A Hart
what it ought to be. These two should be He rejected Austin’s theory of analytical positivism
separated for the purpose of identifying laws at and expounded his legal theory based on the
a given point of time . (Note: those who assert relationship between law and society. In his book ,
‘law as it is’ do NOT deny the value of ‘law as it Concept of Law , he criticised Austin’s Theory.
ought to be’. )
He believed in analytical approach , however, his
Reason why this separation is desirable : notion of law is altogether different from his
o Helps to identify law. As it would not be predecessors—he believed that law, morality and
possible for others to understand what coercion are related to social phenomena having
law is – is it the actual law , or is it the sociological implications.
law as it ought to be.
o Morality is a diffused idea. It is wider
than Law. Hence the boundaries of law Hart’s Conception of Law:
should be made clear. • Law is a system of 2 types of rules , the union of
o Difference in application of formal and which provides key to science of jurisprudence
moral criteria. (i.e. law takes birth from the union of these
• The analysis of law : is worth pursuing ; should rules) :
be distinct from sociological and historical o Primary Rules
inquiries . o Secondary Rules
• Decisions can be logically deduced from
predetermined rules. a. Rejecting Austin’s theory that ‘law is a
command’ , Hart opined that
They agree that judges make laws. It is through the primary rules are duty imposing while
incorporation in precedents and statutes , that the secondary rules confer power. And the
quality if law is enhanced. And quality of law follows union of two, is the ‘’essence’’ of law.
irrespective of morality i.e. even if an ‘unjust’ b. Primary Rules are binding because of
proposition is passed as law , it shall remain to be popular acceptance—such as rules of
valid . kinship, family sentiments. { 3 defects :
{However, Natural Law supporter believe that a uncertainty , inefficiency , static character }
proposition is ‘law’ because it not only satisfy Secondary Rules enable the legislator to
formal requirement but also has a morality element. modify their policies acc to the needs of the
Hence , immoral rule is not law. } society. They seek to remedy the defects of
primary rules.
c. In Primary rules, individuals are required
to do or abstain from doing certain acts,
whether they wish to do so or not (binding),
Austin
Secondary Rules confer public or private
Topic can be covered from AK Jain (aka ‘dukki’)
powers which lead to creation of duties or
given as Q1) . It covers the topic comprehensively.
obligations.
However, if time permits, can be supplemented
with Case Material .

(Citing it here would have amounted to duplication.)

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]

Hart’s -- Rules of Recognition :

The validity of law is to be tested on the basis of Distinction between Positive Law and Morality:
‘rule of recognition’ , similar to Austin’s concept of
Positive Law Morality/Natural Law
‘sovereign’ . However, it is not an extra-jural
rules for governance Principle of natural
hypothesis like Kelsen’s ‘groundnorm’ . of outward acts of rights and wrongs (i.e.
mankind. justice).
Acc to Hart, rule of recognition is the sole rule in the made and enforced unwritten law,
legal system whose binding force depends on- its by State. followed by people as
accepatance. eternal laws of divine
origin.
Eg: Enactment of British Queen in Parliament and
’Positivism’ is based ’Natural Law’ is based
Constitutional law in India  is rule of recognition
on the actual law (‘as it on ideal situation – what
i.e they are binding on legislators, officials, citizens is’) . It is realistic and is right and what is
and courts. scientific in its wrong. (as it ‘ ought to
interpretation. There is be ‘)
Hart’s conception of positivism is centred around no room for hypothesis.
following consideration :
a) He accepts law as a command (like Austin)
b) Believes that analysis of law , rather than mere
sociological and historical inquiries.
c) Judicial decisions were to be deduced from pre- PURE THEORY OF LAW: HANS KELSEN
determined rules without recourse to social
Kelsen served as Professor in University of Austria
aims, objectives, policy or morality.
and later in American universities.
d) Moral judgements cannot be defended by
• Described law as a ‘normative science’ rather
rational arguments, evidence or proof.
than a ‘natural science’.
e) Law actually laid down(positum) must be
• Kelsen’s theory was a theory of positive law
separated from law as ought to be.
based on normative order elimination all extra
legal and illegal elements from it—it should be
Hart’s views on Law and Morality :
free from ethics, politics, sociology, history etc
Unlike Austin and Kelsen, Hart asserted that there is
(though he did not deny the value of these
a necessity for law and morality to have certain
elements of natural law. Thus, morality is implicit in branches of knowledge, he just wanted law to
Hart’s positive law – as a union of primary and be clear of them)
secondary rules. As a member of society, • believed that a theory of law should be uniform
individuals are bound to abide these rules. and should be applicable at all times & places.
Hence, laws and morals are complementary as well • Theory of law should deal with law ‘actually’
as supplementary to each other.
laid down , and NOT as it ‘ought to be’—hence
• Morality is a necessary condition of the society,
and law should function to ensure it is not it is called ‘’Positive Law’’.
disintegrated • Acc to him, ‘Law’ and ‘State’ are same thing.
• However, he said that law’s function is a last Also there is no difference between ‘public and
line of defence , other attempts should come private law’.
from the society—via education, mass media. • He does not believe in existence of individual
• ‘Complementarity’ btw Laws and Morals : when rights , and asserts that ‘legal duties’ are the
individual morality begin to clash due to
essence of law.
changing norms of the society , laws are
enacted to lay down standards of behaviour. • Like Austin, he considers ‘sanction’ as an
essential element of law, but he prefers to call it

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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
‘NORM’. Here, ‘Norm’ is a rule forbidding or
prescribing a certain behaviour. Kelsen considers legal science as a pyramid of
 Legal order is the hierarchy of norms norms with Groundnorm at apex .
having sanction i.e. law is a primary Subordinate norms are controlled by norms
norm which stipulates sanction. superior to them in hierarchy.
 Jurisprudence is the study of these Groundnorm is independent of any norm.
norms which comprise legal sanction. ’Concretisation of Legal System’—process of one
 (a)Moral Norm : ‘one shall not steal’ – norm deriving its power from its superior norm ,
no punitive consequence until it reached the groundnorm. (by Kelsen)
 (b)Legal Norm : ‘if one steals, he ought
to be punished by the court’—here
‘ought’ applies sanction to the violation Example : Statue/Law derives its validity from
of law. Legislative body, which in turn derives its validity
from Constitution. ## However, there is no
GROUNDNORM answer to where the constitution derives its
• Kelsen’s pure theory of law is based on validity, hence Constitution is a Groundnorm acc to
pyramidical structure of hierarchy of norms Kelsen’s theory.
which derive their validity from the ‘basic norm’
, which he termed as GROUNDNORM. CRITICISM :
• This groundnorm/basic norm determines the • Pure theory is devoid of Sociological
content and give validity to other norms derived Foundation: it excludes all references of social
from it. facts and needs of the society.
• he asserted that groundnorm imparts validity • Lacks Practicality : theory is based on
as long as the ‘total legal order’ remains hypothetical consideration without practicality.
effective It is not possible to divest laws from the
• Kelsen recognised that groundnorm need not be influence of political ideology and social needs.
same in every legal order(State), but it must be He does not consider ‘justice’ and ‘morality’ as
necessarily there – in the form of Constitution essential attributes of law.
(India) , or the Will of Dictator (during the era • No solution in case of conflicts arising out of
of Musharraf in Pakistan, 2007) ideological differences .
{{{ Drawback: Just like Austin (sovereign), Kelsen’s • Kelsen’s assertion that all norms (except the
theory considers the ‘groundnorm’ to be the groundnorm) are pure has no logical basis—how
starting point. However , he has no answer as to can subsequent norms be pure when they are
where the groundnorm derived its validity. }}} based on the groundnorm—which itself is based
on hypothesis/fiction.
PYRAMID OF NORMS : • Kelsen gave no criteria by which the minimum
‘effectiveness’ is to be measured—he asserted
that groundnorm imparts validity as long as
Groundnorm (apex) the ‘total legal order’ remains effective –
Eg: Constitution in India (doesn’t hold good incase of Pakistan) .
However, effectiveness is not necessarily a pre-
Superior Norm condition for validity.
Eg: Legislative Body • Theory does not apply to revolutionary
situations where one assumes power by
Subordinate Norm dictatorship-- (Pakistan constitution overthrown
Eg: Statute/Law
by the military rule -- does the constitution lose
its validity?? Theory gives no answer to it .)
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Prepared by : ABHISHEK YADAV (Student, Campus Law Centre , Faculty of Law )
Email : [email protected]
subordinate to State. ; for Kelsen, the law
and State are same thing.
CONTRIBUTION : despite the shortcomings, v. Austin’s legal approach was not specific. But
Kelsen’s contribution cannot be ignored. Kelsen developed legal order as a pyramid
He attempted to break away from traditional of norms.
‘natural law’ theory and theory of ‘legal vi. For Austin, ‘customs’ are not laws as they
positivism’ . are not derived from the State/sovereign.
He asserted legal knowledge is free from Kelsen recognise customs are norms which
foreign elements – ethics, psychology , take the shape of legal norms in the
sociology etc. subsequent course of time .
He asserted that law and State are same. Law vii. Austin did not consider ‘international law’
is the will of the State. as law , since it does not bound the State.
Kelsen regards international law as binding
on the State, as international org is superior
to the State (legal order).
Similarities : (AUSTIN and KELSEN ) viii. For Austin, ‘public law’ defines rights and
i. Both opposed the natural law theory. duties of the State for its subjects and the
ii. Both recognised the distinction between ‘Private Law’ defines rights and duties of
law as –‘it is’ and ‘ought to be’ .( Austin kept individuals. For Kelsen , there was no
‘ought’ outside the purview of law as it distinction between ‘public law’ and ‘pvt
lacked command of sovereign ; Kelsen law’ .
separated natural science from law because ix. For Austin, law was subordinate to State.
the former is based on rules of cause and For Kelsen, State is a unification of legal
effect which are not applicable for law) order i.e. there is no dualism.
iii. Divested moral, ideal or ethical elements {NOTE : points 6, 7, 8 ,9  how Kelsen’s theory is
from law and wished to create ‘pure science improvement upon Austin’s theory}
of law’ devoid of all moral and sociological
considerations.
iv. Consider sanction as an essential element of
law.
v.

Differences : (AUSTIN and KELSEN )

i. Kelsen considered groundnorm to the
starting point to give validity to other
norms. Austin said the laws derive validity
from the State/Sovereign.
ii. Kelsen rejected the idea of ‘command’ as it
involves psychological and subjective
element. For Kelsen, legal theory should be
objective.
iii. Austin’s theory was static ; Kelsen’s theory
was dynamic.
iv. Austin considers existence of
State/Sovereign as a pre-condition for
existence of law . For Austin, law was

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