Hart Devlin Debate (Continued)

 Where can you place limits on what the law can regulate?
- Different types of harm – easily identifiable (harm to self and others) Easy to
identify when approached from a liberty perspective.
- When the liberty perspective is abandoned, the answer becomes unclear –
Feinberg’s work displaces the idea of harm from the central position and looks
at the additional requirement of wrongfulness. – What is considered wrong is
based on societal conception of what is or not acceptable – Goes back to what
Devlin talks about how societal mores and conventions should be conserved
using law. – Devlin restricts what the law can do: Allow for max scope of
individual liberty and freedom – where an act is inconsistent with liberty, take a
stand.
- Hart puts the burden on Devlin to proof where law can justify breaching liberty
in terms of harm.
- Commercial sex work, premised on free consent, causes no harm to the person
engaging in the sex work – sex work is considered to harm the institution of
marriage – can result in the birth of illegitimate children and their suffering in
financial and psychological terms – Hart would dismiss these remote harms in
prohibiting law.
- If society decides that these harms are enough, then society may regulate it.
Eg: Adultery as a crime was regulated by the society as it harmed an
institution and not a person per se, a very remote harm (Decriminalized in
Joseph Shine)
- Devlin tries to protect an idea of social or positive morality, different from
critical morality – moral principles that are considered universal truths and do
not change even if humans refuse to recognise/follow them – Social morality is
what the society chooses to adopt as its own. – Devlin never specified which
morality he was talking about
- No need to go to social morality, as in a positivist approach, law arises from
social convention. Devlin only says that the law can act in accordance with
social convention.
- Hart thinks this is unacceptable because it leaves no scope for liberty – the law
should have restrictions in the private space, coming from utilitarian thought
and harm principle – Devlin also says that the law should allow for liberty to
exist, but the same cannot be a conceptual limitation on the law’s existence
and form.
- One may prescribe to the harm principle as a matter of policy, but at what point
can it become a conceptual limitation to the actual existence of law? Can social
conventions be enforced using the strength of law, especially criminal law?
- Harm principle is not a complete answer to Devlin’s question – things that are
harmful may not be criminal. Nothing inherent in the law that acts as a
limitation to what the law may or may not be able to do.
- Work of lawyers after this debate shows that the harm principle is an inadequate
understanding of the grounding of criminal law – serves as a guide, but doesn’t
answer the question per se in theory.
- Harms may be structural, and not individualistic – such as caste system and
prostitution – but harm principle doesn’t look at it that way and looks at it from
an individual’s POV. Harm may not manifest immediately, but eventually. Law
routinely locates areas it is supposed to regulate, harm or no harm.
- What is the role of crim law in society? Does it seek to modify or change
society? Why does law criminalize a certain wrong? Eg: Untouchability – when
you locate the function of law in this sense, you need to account for other
aspects – in this way, crim law becomes an instrumentality of empowerment of
a minority to end their age old persecution as a result of the enforcement of
separateness, thereby violating equality.
- When the harm principle expands to include the wrongdoer as well, paternalism
is justified in some senses according to Hart – wearing a helmet. What about
bigamy?
- Social conventions are more often than not, unjust and anti-minority – if
allowed to perpetuate, will always perpetuate – can acquire legitimacy if
embodied by law. Social conventions need to change as well. Would law be
justified in enforcing practices such as sati, which were social conventions?
They don’t always change organically, on their own – they have to be changed
by the law.
- Codification of Hindu law: Marriage and succession laws – difference between
convention and law was heightened – law altered social convention by this
codification process. Devlin wouldn’t have a problem with it as the opinion of
informed people, albeit unpopular, was being implemented by the government.
- What is the role played by the law in society? There are conceptual problems on
both sides, but hard to locate a conceptual limitation on law as argued by Hart.
If crim law is looked at as the ultimate tool of state power against the citizens,
then Hart’s idea of the harm principle makes sense – then again, what should be
a conceptual limitation?
 Jurisprudence Class: 1st January - Dworkin (Hrishika’s class)

- Frist: What is the concept of law? Second: Who among the legislature or the
judiciary, make the meaning of law?
- What justified the coercive power our modern legal system is given?
- What connects all these theories is that you cannot adequately answer what
law is without understanding what law is for. Different theories answer
these questions differently.
- Hart’s theory: Primitive community with a pre-legal system order – primary
roles of people accepting these rules – Primary and Secondary rules distinction
saves society from the chaos of primary rules – ambiguity, changing,
adjudication. What is his rationale of the existence of law? – It is not a
substantive notion of materially transforming society, but a notion of
efficiency – In his theory, the legislature would lead the way in law-making, as
if you want certainty and efficiency, you need a body that releases these
guidelines in advance as opposed to judicial officials that give out narrow
judgements of what the law is. The judiciary only operates in the penumbra.
The legislature becomes the final word in what law is – this explains why
positivism is so averse to moral considerations being read into the law, as if
you allow judges to do so, you compromise on certainty and it becomes
inefficient. Positivism values democratic processes and gives legislature the
primacy in this regard – the procedure of democratic processes minimize the
passage of unfair/unjust laws as it allows for the representation of various
interest groups.
- ELPs – Raz – say that law can be efficient only by replacing your reasons for
action, not supplementing them, this is the only way law will be authoritative.

Dworkin:
- Far more substantive than Hart’s theory- law and its purpose as a more
substantive notion of justice and fairness
- Considers integrity as the best concept that explains law
- More about fairness and less about making society efficient – his
principles add more legitimacy to the law, but amounts to a trade-off
between efficiency and integrity of the law.
- CAA Case: Positivism will answer the questions of the law, but
Dworkin’s theory gives a more holistic approach.
- Dworkin’s response to democratic processes- thie theory accounts for
a certain weightage to democratic processes – accords judiciary’s role
as taking democratic process as a given, but then the judiciary tempers
 the law and applies it in the best way – J’s role is to introduce moral
and fairness aspects, fitting into the larger legal system
- What explains the law – the authority we consider law to have goes
beyond posited law – we see it having a social impact and having a
transformative impact on society – J also explains the principles
behind the law and what they consider the law is not just posited law
but also does beyond that to the principle.

Theory of Law:
- Integrity is understood as equality before the law – principles should
apply to everybody equally but goes beyond that – law needs to be
treated as a coherent entity that speaks of a community’s notion of
what is justice – when a judge interprets a particular statute, the judge
is interpreting law as a whole, speaking through this statute.
- The entirety of law is one coherent whole that speaks with one voice
and you need to see the stature as a part of the whole
- What constitutes law in this sense?
i. Riggs v Palmer: Inheritance where a person in his will gave his
property to his murderer – would the murderer be allowed to
profit of his own good? Principle of equity where no man
should profit from his own good. Positivists would say that this
is not a penumbral case and law should be followed – Dworkin
would consider the statute as a whole and the principle of equity
would be within the consideration as well.
In a lot of hard cases, when the judges come to a conclusion
where they arrive at a conclusion not demanded by textual law,
they’re coming to this as a result of their own discretion. The
judges think they are doing what they are bound to do not in the
same sense as rules but exercise a weak discretion, and not a
question of strong discretion as in pure penumbral cases.
If you acknowledge that Hart’s penumbra is widespread and
that it requires discretionary reasoning leading to formation of
new law – judges have no fixed legal standards operating on
them – the law-making becomes retrospective and that hits at
the centre of positivism.
- Mohd Arif’s case: Positivists would treat Eshwariya’s case as
binding and follow that. The fact that all of those cases that had
been decided would have to be heard again would be inefficient.
- Dworkin would look at this saying that these principles exist
in the law and are identified by the judges in the course of
adjudication in hard cases and since the law has always
remained that way and was simply identified now, therefore
there is no retrospective application of the law.
- When you concede strong discretion, the judge has done what
is legally valid and cannot question whether he should have
done it or not
- Dworkin on positivism: thinks it is about fairness that comes
from democratic processes and not about efficiency.
- Fairness and efficiency aren’t mutually incompatible –
fairness can be a good description of positive law, while not
completely explaining the centre of gravity of law in a
positivistic universe.
- Weak discretion: Discretion arising from binding and existing
legal standards and principles – more vague than rules – binds
them.
- Strong discretion: Legal vacuum, what Hart calls the
penumbra – the result would necessarily require him to reach
beyond the law, as no law exists – nothing binds the judge
legally, although s/he may be bound by moral and ethical
considerations.
- Riggs v Palmer – judges applying weak discretion – the
principles applied by the judges are considered to be binding
upon them
- What happens in these cases is a honest description of the
judges’ minds – where they consider themselves bound and not
entirely free
- Penumbral situations are more common than Hart – allowing
for fresh legislation creates problems of retrospective law
making – against positivism
- Practical implications of how you theorise judgements in
penumbral cases – diff b/w judge creating law (Hart) and
identifying law (Dworkin) – with the latter, you can at best
claim that the judge ought or ought not to have done this, but
not the fact that the judge went against his duty and created law.
– difference between whether this is law now or has always
been law.
- conceding to weak discretion means that we concede being
bound by legal principles.
Rules v Principles Distinction
- If we concede there is a weak discretion and there are principles
guiding this, we need to reconceptualise law – done by rule-principle
discretion
- Two primary distinctions b/w rules and principles:
- Rules apply in an all or nothing manner – lead to an inevitable
conclusion one way or another – if you don’t apply the rule where it
should you, you either carve out an exception and change its
application, or you completely negate the rule.
- Principles give the judges reasons to make decisions one way or
another – just because a principle is relevant in a certain case and is
not implemented in the same, doesn’t mean that the principle ceases to
exist – maybe the courts chose to consider weightier considerations –
doesn’t lead to an inevitable determinate conclusion. – judges are
bound to consider principles that are applicable to a situation, must be
deliberated upon but may not be reflected in a outcome.
- Just because a principle is applicable, doesn’t negate the conflicting
principles and render them inapplicable. Eg: Illegally obtained
evidence is admissible in India – negates the principle of no man
should benefit from their own wrong.

- Principles have an added dimension of weight. Rules either apply or

don’t – the weights of conflicting principles will be considered in light
of a fact situation, one will outweigh the other and the other continues
to survive – if rules clash, one of the, necessarily has to be rendered
invalid – What if a rule clashes with a principle?

- Principles identified need to be established as legal principles –

through a mix of acceptance and validity – Hart says that law becomes
authoritative because it is either valid or accepted as uniform social
practice.

i)Institutional Support: Precedents, enactments, something

incorporating them into the legal system

ii) Theory of fit and discretion: Can’t identify random principles to

substantiate outcomes – principles used should be coherent with the
legislative history of all law; and should be able to justify all the law
 in light of the relevant principle. Eg: Abortion law has to be viewed in
light of all the relevant history and you would conclude that the
rationale behind it is personal liberty and not population control.

- If a principle would be considered wrong one day, it would probably

wear out as it loses a sense of appropriateness within the social
context in which it operates. – sense of acceptance of this principles
lends it a sense of authority.

- Conceptualising a source of authority for rules is tracing it back

through a chain to the rule of recognition, but for principles its looking
at like a web of reasoning behind various principles being in law.

How to identify rules from principles? In light of 16(3) ICA, 304A IPC
- Formally, it is a rule – has certain criteria, which if met, would lead to
application of the principle.
- However, it incorporates a principle of conscionability in the rule
itself – the law paves way for the application of the principle.
- Negligence and undue influence are standards
Dworkin would think that the idea of positivism leading to certainty is flawed –
the law runs out quickly in ELP, while the penumbra region in ILP is too large
and thus, does not give certainty.
One way to look at Dworkin’s theory is to remove the distinction between rules
and principles and look at rules are really weightier principles.
– but what if we don’t want all rules, such as Art 21 and FRs, to be demoted to
principles, where they can be outweighed by weightier principles.
- Efficiency is hampered in this way as you have to carve out so many
principles – becomes bulky
Aghnoo Nagesia: Are absolute rules, such as procedural aspects of rules,
considered principles in Dworkin’s theory?
- Compromising on procedural justice for achievement of substantive
justice is okay because the underleying principles is weighty enough
to do so.
 - Applying Dworkin’s theory doesn’t mean that the text is foregone –
cases where rules have substantial backing of principles and
democratic processes – and is followed as it is
Mohd Arif: If you concede that Mohd. Arif outcome is just, can you reach the
same conclusion using ILP/ELP, without any Dworkinian analysis?
- In some cases, you need to stick to the text to ensure Justice and some
cases require you to do otherwise and take other things into
consideration.
- Dworkin thinks there is one right answer to everything – in strong
discretion, there is less things binding the judge and the judge has
much more leeway to do what he wants in the penumbra –
distinguished from Hart – Dworkin believes that by considering rules
and principles, there is only one right answer that can be arrived at.
Whether Hart’s theory can be tweaked to modify what Dworkin thinks is law
and still retain its characteristics?
Framework: What does positivism understand as law and where does this
authority come from?
- Hart: Says we are obligated and obliged to flow the law in two ways:
1. Primary rules – validity – need to enjoy a certain type of pedigree
to be valid – needs to conform to a secondary rule to be valid –
doesn’t answer where the authority of the primary rule comes from.
2. Secondary Rules: Chain of Command of rules – Rule of
recognition from general acceptance – authority derived from
uniform social practice which creates general practice.
Test of authority: Every person should conform to this rule in practice and
because they feel a sense of being bound by this practice and it forms their
reason for action.
Whether Dworkin’s notion of the law can be recognized in the same rule of
recognition by just changing the rule to a principle, as opposed to completely
doing away with it?
Raz: Law needs to replace all reasons for action and the law can only retain its
authority that way.
Assuming that principles are now weighty over the judge, as opposed to legally
binding in the penumbra
Raz and Sartorius: Concede the idea that some principles are legally binding
and can be easily accommodated in Hart’s idea of the law, as long as you can fit
it in the primary-secondary framework – Raz suggests judicial custom, test for
which is consistent judicial acceptance and this can become a secondary rule for
understanding what constitutes valid primary rules
Two problems:
1. Situations such as Henningson (?) cannot be considered in Raz’s
framework – the framework is inadequate for the same.
2. Sartorius’ framework – test for institutional support – tracing the
principles of – test for institutional support is similar to Hart’s idea of
acceptance and therefore, can be used as a general rule of recognition –
Hart make a distinction for the acceptance of primary and secondary
rules, based on the idea that primitive societies had primary rules and sec
rules fixed the problems of the previous societies– in the earlier societies,
primary rules enjoyed validity by the way of acceptance of the people and
in the new system, only secondary rules enjoy validity by way of
acceptance – If the rule of recognition is itself acceptance, this distinction
is gone and by using this as a test, it becomes a non-rule of recognition.
Hart’s framework cannot be modified because Hart wanted a sort of rigidity
between the primary and secondary rules – by trying to read in Dworkin’s rules,
the rule of recognition becomes fuzzy because you don’t know how much
institutional support is sufficient in order for a moral principle to become a legal
principle.
Dworkin says that principles do no enjoy the same authority as rules as they
originated at a certain point of time and can therefore, also come to an end – he
says they find authority in a general sense of appropriateness amongst the legal
community as well as the general audience. – To identify such support, you
would resort to institutional support and use legal instances to show that such a
principle is recognized by the legal system – based on acceptance as a test,
except Dworkin’s theory doesn’t allow for the acceptance v validity distinction
that Hart resorts to – he sees principles deriving authority as principles giving
each other authority and acceptance to each other in an interlocking way –
relying on institutional support as well as the principles underlying such support
and methods to find authority for a given principle.
Because of this particular type of identifying legal principles, and no other way,
one needs to give away the distinction between acceptance and validity as the
tests of recognition for principles would require so – that gives up Hart’s
fundamental premise and he cannot let go of the distinction without
compromising his whole theory.
Raz says that Dworkin’s theory of weak discretion is based on the fact that there
are legal binding principles and some non-binding, non-legal principles – there
needs to be a test that distinguishes the two. Dworkin considers a test that is a
mixture of validity and acceptance in order to identify principles – he traces
authority to two different sources, institutional support and principles
underlying the institutional support – this breaks Hart’s distinction of rules valid
because of acceptance and rules valid because of being valid by compliance to
the accepted rules – results in efficiency for Hart, as all the primary rules are
previously contingent on social conventions and now they are only based on
validity, with only one rule of recognition being accepted.
Raz says that Dworkin’s theory of weak discretion necessarily implies that there
are some principles that are not legally binding – there needs to be a test that
distinguishes between the two, which is a non-arbitrary way of deciding the
legally binding ones – Dworkin says that while his theory needs a test that needs
distinguishes between the two, but it is not the same as Hart’s – alternative test:
test od institutional support or test of fitting in with the whole of law – his
problem is that he doesn’t agree with the rule of recognition based on uniform
acceptance because no one such rule can exist.
If there is no RoR that can account for what is binding in law, two implications:
1. Breakdown of acceptance-validity distinction and primary-secondary
distinction
2. If your test for what law is not based on uniform social acceptance, and
there’s fragmented acceptance, then you need to resort to principles.
Without complete uniform social acceptance, you will have to resort to legal
principles – RoR needs unanimous acceptance according to Hart – Dworkin
thinks that no duty can be constituted unless it is uncontroversial or fixed – just
because it is controversial doesn’t mean the duty wont exist – when you go to
the hard cases and when law becomes difficult, requires interpretation or is a
little vague, positivism gives up on the law and says that it is exhaustive and
ends where any moral standards have to be used to interpret laws – Dworkin
says that it is flawed.
Dworkin changes how we conceptualise law – looking at principles rather than
just binding law
Uses his theory of law and what law is to attack positivism and its foundational
tenets
Gives an interpreted theory which fits his idea of what law is, how it works and
who the primary protagonist is – fits in with why law should exist and its
purposes
Theory of Constructive Interpretation
Law and legal principles must equally apply to everyone – not the conventional
application of equal application amongst equals – look at law as speaking in one
coherent voice rather than different voices.
Distinction between a law and the law: you may interpret one statute but what
determines your interpretation is the whole body of law
The law as a whole is the voice of the community expressing its notion of
fairness, justice and equality – interpretive outcomes of the statute is an
obligation imposed by the law as a whole, by the mechanism of the statute, as
opposed to what the statute creates by itself.
Given law is integrity, judges must assume a coherence within the law and must
consider all of the law as material for interpreting something in a given statute –
the rest of the law creates an obligation through the text of the statute.
Three stages of interpretation:
1. Pre-interpretative stage: Collate all the possible law that could be used –
statutes, precedents etc – pre-interpretative data to interpret the law by the
Judiciary in conjunction with other sources of law- the legislature
provides material to the judiciary and it is the judiciary that determines
the law.
2. Interpretative stage: Identify all the possible interpretations of the data –
find the interpretations that fit the coherence of the law – fit of law; test
of justification: To pick among the various interpretations, narrow down
to a combination of policy and principles that justifies all the law that has
come before it – whatever law exists should be explained by such a
policy and the data at hand should be best morally explained by this
policy - choose the best interpretation on the basis of the normative value
of moral.
3. Post interpretative stage: all the practice must fit this interpretation – ay
application of the law should be consistent with the justification you
came up with for the rest of the laws before it.

Example: Law of Sedition – given that we have Freedom of speech in our legal
system, what would best explain sedition to allow law to speak in one single
voice, how do you fit sedition coherently? How to resolve the clash between
competing principles?
- Stage 1: 124A IPC and Article 19 of constitution
- Stage 2: Two directly contradictory principles - Try to still resolve the
clash by trying to reconcile them – one way is to look at public order
and morality restrictions on art. 19 - Upholding the value of
democratic public opinion – sedition would go against democratic
stability and order.
Justifying what best fits the system by assessing it on the grounds of
moral values – if you look at principles clashing and nothing binding
them together, the decision will depend on the judge’s political
ideology – but by connecting it to a single underlying theme, it curtails
political interpretation and it forces the interpreter to think on a
broader thematic line and then force them to reconcile.

DWORKIN ON THE CONCEPTION OF RIGHTS

- Book: Taking Rights seriously

- When he speaks of rules and principles, he moved away from the
debate of law and morality, which he considered unprofitable as he
saw very little value of the same to the field of law.
- His idea of rights differs from the Hohfeldian matrix – answers many
questions left unanswered by the Hart-Devlin debate – assume a
sympathetic position to liberty and the burden is on the state to justify
criminal law in areas where the harm is not to individuals, but ot
social mores.
- Difference between a right and the idea of the right thing to do – can
be a legal issue, of whether it is given by law or not – social issue,
whether the action is allowed by social convention.
- What gives rise to the idea of the right thing to do, without it being a
legally recognized right? One can claim that one of law’s functions is
to create rights, as spheres of liberty – Hohfeld’s matrix develops a
corresponding duty on someone else to respect that right.
- Is something, irrespective of the law, is the right way to act? – At
certain points of time, the right thing to do for everyone can be
different because conscience acts differently for everyone. What
should the law do? Can you claim a right to do what your conscience
asks you to do? If it is to be done, how should the law react to it? If
something is the right thing to do, is prosecuting it the wrong thing to
 do? What does it mean to hold a right, in a sense where you personally
hold it and believe in the right to do that act?
- Escaping the military draft
- Recognition of law – right as a legal as well as a moral claim can be
for the purpose of efficiency – Eg. Equality is enshrined in the
Constitution and the same is also upheld by moral standards – the
question of whether a right exists is not only answered by whether the
Constitution contains it, but those rights as moral ideas continue to
exist – legal act + moral issue. This understanding is not universal – if
you want to see how Dworkin looks at the idea of rights, he thinks of
the right thing to do as having a right in the strong sense – does not
depend on legal recognition – if you have any right in a strong sense,
Dworkin says you can act in the pursuance of that right, you may be
breaking the law and the law may not rcognise it – you may be
punished for it as you break the law and the law is technically justified
to do so, but Dworkin thinks it is not the right thing to do to punish an
action that in in furtherance of a strong right.
- A general societal interest cannot be a sufficient condition to limit a
right in the strong sense – the only thing to be accounted for in
understanding rights in the strong sense are countervailing rights of
other individuals, not general rights or interests.
- HE distinguishes b/w a right created by law as a legal right with the
idea of a right being right because it is the correct thing to do just
because it is also the morally correct thing to do – these rights exist on
different levels – an act of conscience exists whether the law
recognizes it or not – the Constitution often fuses the two – Similar to
NLT – just because the rights exist on different pedestals, the law does
not cease to be important – you might be validly punished for
breaking the law – if something is held as a right in the true, personal
sense; the law should defer to that punishing exercise and it is
unreasonable for the law to prosecute – the rights in the strong sense
cannot be curtailed by the general sense of societal interest, but only
the competing right of another individual.
- Accumulated objections do not become a competing right, according
to Dworkin – each individual may have a right to security and when
you say that a strong right should be curtailed in the interest of
security, you need to show the detriment of another individual’s right
of security/freedom – hate speech towards the government may not be
curtailed by the importance of government and the failure to instil
respect for the government as they are not individual rights – Acc to
 Dworkin, competing individual rights are necessary to curtail rights in
the strong sense – cannot include indirect harms.
- Without going to the harm principle, it creates a landscape to
adjudicate on various issues – Going back to Hart-Devlin debate, the
right to sexual autonomy is one’s right in the strong sense and
curtailing that right in the interest of social mores or community
governed interests is not permissible in the Dworkinian landscape as
there is no individual right being curtailed.
- He considers some rights as genuinely morally held as acts of
conscience. Is something the right thing to do? By this question, he
does not claim that the answer you give will resonate with someone
else ad does not claim uniformity or universality in the answer give, -
he wants each to question themselves and answer honestly – the
conception of rights is rooted in the individual.
- What if one uses this individual conception of rights to practice
something like untouchability? You then look at competing rights and
see that it clashes with the right to equality of another.
- When we talk of individual rights, the state cannot cite majoritarian
opinions to curtain such individual rights – can only curtail it when it
affects other individual rights. You have a right to your conscience
and belief, but only the practice of those beliefs and conscience will be
balanced against the rights of others – Untouchability is abolished as a
practice, but you may still believe in it.
- When two strong rights compete, you need a middle ground – you are
free to believe anything, but you cannot act on it if it infringes on
others rights.
- Immigrant crisis – arguments against limited resources and labour
market – Dworkin assumes that this is a society already formed and of
individuals included in the society and everyone who is new, the
arguments would be considered a general argument – you don’t have a
right to a certain amount of resources but to some resources and these
are all general interests – cannot curtail a right in a strong sense – do
these immigrants have a right in the strong sense? Depends on the
right you identify, such as right to life.
- These rights are argued to be done away with in some contexts – Art
20 as right against self-incrimination in the interest of greater
convictions tied in with security interests – this competing general
interest is not important as an individual right.
- Is this the same as the Harm principle? In effect, looking for a
competing interest possibly is the same as the harm principle, harm
principle doesn’t have an individual right aspect.
- The government cannot use general ideas of security and stability of
the government to enact sedition laws to curtail free speech of
individuals.
- If there are two clashing rights that have the same underlying basis,
both side have to argue which side has the right in the more intimate
sense.
- Placards at protests – are they against national security and stability? –
if the freedom of speech and expression is a right in the strong sense,
the only way to curtail it is by showing detriment to another individual
and not to a general idea. – placards may be outrageous and may
outrage moral societal standards, but is there a competing individual
right? – in a democracy, even though dissent is anathema to most of
the society, is allowed in the legal sense – 19(1) rights can be
considered moral rights that extend beyond the legal right – the
question of rights may not be answered by law, but whether a right is
held in the strong sense is up to you – moral rights can be held on a
separate plane.
- A right can be held despite a contrary limitations as dictated by the
law- Dworkin lays down the foundations for a modern conception of
individual autonomy – certain aspects of an individual that society
cannot limit, though legally it can – there are certain aspects that will
not change or be homogenised even by the individual joining the
society. – never a complete answer to the question of rights as to what
the society wants.
- The right must be available to you when it is unpopular, if you want to
have it in a meaningful sense – need certain things to trump societal
interests and popular interests – rights as trumps held by individuals,
against the govt and the society.
- Important to understand rights as trumps – just because you have a
right in the strong sense, doesn’t mean you have the right to act
according to that and you have to consider the law and the competing
interests of other people – when the govt has tried to fuse the legal and
moral right, would it be reasonable for the govt to do? – a govt may
have the right to punish you, it may not be reasonable for them to do
so.
- You have the right to be generally inconvenient, legally impermissible
or morally unacceptable in furtherance of rights held in the strong
 sense- rights not held in the strong sense do not have the same
protection – having a right and its practice are two different things –
exercise of a right means you are obliged to keep others’ interests in
mind – self mechanism on exercise of rights – part of being reasonable
in society.
- Dworkin’s idea stems from the idea that every individual is entitled to
some kind of consideration from the state – the competing interests of
the individuals to be considered cannot be a speculative exercise –
specific speculative harm needs to be shown to curtain one’s harm –
you have a right to be maintained, but do you have that right against a
particular person? Even if you can exercise your right, you must act in
a way that is reasonable – this requirement of reasonableness only
kicks in when there is a question of exercise and not one of existence
of the right. A strongly held right can exist even when law doesn’t
allow it - your claim to the existence of the right.
- What are the limits of strongly held rights? Can you claim to have the
right to break the law?
BIJOE EMMANUEL V STATE OF KERALA
- Three children suspended from school for not singing the national
anthem – Jehovah’s witnesses – they stood up, didn’t disrespect the
flag, but they didn’t sing.
- Filed a writ challenging the suspension – reject by HC – now in SC.
- The State argues using circulars and Kerala Education Rules – rules
are general and vague in nature – students must be inculcated with
patriotic values – circulars said that the anthem was sung in schools
across the state.
- Art. 25: Freedom of religion, subject to health, public order or
morality.
- If you refuse to sing the National Anthem, do any of the restrictions in
Art 25 become operative?
- Do religious sects have the same right to the freedom of religion? –
Art 26 gives religious denominations secular rights such as
establishing institutions and acquiring property – Art. 25 gives
conscience rights and can be claimed by an individual or a religious
denomination, gives a broad protection to the individual to practice
the faith of his choice, in accordance with this conscience.
- Under Art 25, Bijoe Emmanuel