Sohraab Singh (22010713)

Section – B; LL.B. 2022

A world with conjoining yet independent beliefs, norms, and principles signifies the extent of

diversity in one’s thought processes and how one should interact with the society. The

transcendental nature of varying school of thoughts are indicative of the confluence of

normative and descriptive dimensions in a society; that shapes the relationship vis-à-vis a

person and the State. Complexities arising out such interactions leads to ambiguity in

understanding the essence of the law. Moreso, it begins to questions the purpose of a

definitive law since the question of ‘why a person should observe the laws’ becomes a moral

quest. In ancient times, morals gave rise to law and most laws in today’s society find their

origins by deriving the moral reasoning behind an act. Moreover, questions like ‘why a law

should be obeyed’ and ‘should it be obeyed only because it expects us to’ leads to a

predicament as to with ‘what standard of behaviour’ should a human conduct itself in a

society. Since, law is normative in nature and guides an action of a human, one must look for

the purpose and duty outside the ambit of law, to obey the law.

In the western society, the idea of divine law has only been one-sided where the law demands

obedience from the citizens but not from the kings who ordain the law. The whimsical rule of

man ultimately led to protest from citizens. This transition of laws which were initially

overlapped with law and morality but lacked to govern the ones who make it, ultimately led

to separation of law from morality1. This however, has been in contrast with the Indian

society. Since Vedic times in India, ‘governance’ and ‘duty’ for monarchs and commoners

were guided by the principle of ‘Dharma’ where law and morality were undistinguishable.

Dharma was seen as an inclusive concept which had dimensions of both duty and obligation

with the purpose of duty being intrinsic, individualistic and emerging from moral values 2.

Again, this is in contrast to the western society as the definition of duty or obligation may

somewhat be similar but the source is external; emerging from external incentives and shaped
1
MENON, P. K. “Hindu Jurisprudence.” The International Lawyer 9, no. 1 (1975): 209–13.
http://www.jstor.org/stable/40704923.
2
ibid
 Sohraab Singh (22010713)
Section – B; LL.B. 2022
by the percept of society3. Before we dwells into the different views on obligation, it is

paramount to introduce and elucidate the seminal theories of natural law and positive law to

understand the evolution of obligation in contemporary jurisprudence.

Since time immemorial, the quintessential conflict between realm of natural law

(philosophical school) and positive law (analytical school) has revolved around the locus-

standi of morality in justifying the law 4. Where the naturalist espouses the dictate of reasons

and rationality as a foundation to follow any law, the positivists assert that the law is

command of the sovereign and its integrity is maintained by obedience and obligation to any

law that is laid down5. In essence, the natural law theory dictates that a law should be judged

on the basis of morals and ethics that forms the basis of segregation of good and evil. To the

contrary, the positivist schools omits the moral aspects of the law since it believes that a

society dictates its own laws to derive maximum utility and happiness out of it, therefore, are

obliged to obey them 6.

The natural law theory seeks its origin from eminent Greek and Roman thinkers such as

Plato, Aristotle and Socrates (propounded Stoicism) that laid the cornerstone for legal

philosophy. Since its inception, natural law theories have endured and progressed through

various time periods starting from the middle ages which overlapped with emergence of

divine or ordained laws as seen during the rise of Christianity 7. Another progression occurred

during the classical era led by thinkers such as Locke, Hobbes and Rousseau that made way

for the modern natural law as we see it today. Moreover, eminent jurists like Kant, Hegel and

Grotius pushed for natural law theories that exuded shades of legal positivism (dimensions) 8.
3
Berman, Harold J. “The Origins of Historical Jurisprudence: Coke, Selden, Hale.” The Yale Law Journal 103, no. 7 (1994):
1651–1738. https://doi.org/10.2307/797013.
4
Bickenbach, Jerome E. “Law and Morality.” Law and Philosophy 8, no. 3 (1989): 291–300.
http://www.jstor.org/stable/3504589.
5
Kaye, Tim. “Natural Law Theory and Legal Positivism: Two Sides of the Same Practical Coin?” Journal of Law and
Society 14, no. 3 (1987): 303–20. https://doi.org/10.2307/1410187.
6
ibid
7
Barzun, Charles, and Dan Priel. “JURISPRUDENCE AND (ITS) HISTORY.” Virginia Law Review 101, no. 4 (2015):
849–67. http://www.jstor.org/stable/24363234.
8
Ibid
 Sohraab Singh (22010713)
Section – B; LL.B. 2022
With advent of positivist thoughts emerging from jurisprudence, philosophers like Mills,

Austin and Bentham relied on the analytical school of jurisprudence to substantiate the

positivist theories in order to augment the varying degree of obligations in law. Moreover,

the positive law theories were further deliberated and elaborated through the works of Hart’s

positivism and Kelsen’s ‘pure theory of law’.

The views on obligation and obedience by Naturalist and Positivists, alike, have shaped the

discourse of jurisprudence. Obligation is defined as ‘any actions or inactions in form a duty

that a person must perform’. A person can be morally or legally bound to perform these

obligation that may arise via involuntarily (laws) or voluntarily (agreements) actions. Here,

legal obligations becomes essential since it insists on obedience to law. According to Plato,

obligation and obedience to law is absolute and believed that being governed under the rule

of law is the best possible state 9. Plato in his works drew a distinction between a dissent to a

law and disobeying a law10. For Plato, laws needs to obeyed unquestioned. Bentham, on the

other hand, propounded that the pleasure and pain can be a basis of governance and a means

to individual happiness. Bentham attributed special meaning to words like ‘duty’, ‘obligation’

and ‘rights’ to invoke sentiments and purpose to follow a social or man-made rule. He

insisted that the legal ‘duty’ and ‘obligations’ were an example of logical fictions and

emphasised on incorporation of special methods for analysis. The social-contractualists like

Rousseau, Locke and Hobbes viewed obligations through the lens of an contractual-

relationship. They argued that an individual’s legal or moral obligations are incumbent upon

social contracts or agreement they form with and within the societies as a guiding principle.

For Austin, a propounder of legal positivism, individuals must obey what is sanctioned by

law since authority seeks power which are limitless and absolute 11. He insisted that having an

9
Bookman, John T. “Plato on Political Obligation.” The Western Political Quarterly, vol. 25, no. 2, 1972, pp. 260–67.
JSTOR, https://doi.org/10.2307/447196. Accessed 22 Mar. 2023.
10
ibid
11
Suri Ratnampal, Jurisprudence, page no-150-167 ,(2009)
 Sohraab Singh (22010713)
Section – B; LL.B. 2022
obligations in forms of a sanction alludes to enforcement of such obligation as opinion or

human emotions are secondary issues when governing a society. Moreso, he contended that

‘a law bereft of legal sanction is not binding’ and thereby, it is an imperfect law. However,

Hart relying on his soft positivisms, criticised Austin’s legal positivist theory on the ground

that an obedience or obligation to a law is not only made from the fear of society but also

pressures arising for social factors and sanctions for dereliction of duty 12. In my opinion, the

foundational contention with the theories of legal obligation of Austin and Hart were that

they failed to take into consideration the sentiments of public and individual right along with

being arbitrary in nature.

Kant’s theory on natural law strenuously endorsed the validity of cardinally moral and

political principles13. He emphasised that each rational being ought to ‘navigate’ through its

own guiding moral principles and act upon those principles, independently. Moreso, he relied

on his Categorical Imperative test to ascertain whether a moral principle is objectively

justifiable or not. The Categorical Imperative test is based on universalizability that assumes

that moral principles must apply to all rational beings with the same degree or standards.

Kant’s view on obligation is that ethical motivations are ‘internal’ incentives and rational

being are obligated to comply with the law if they do not contravene with their ‘inner

morality’ 14. To expand on his views on an obligation, Kant equally puts emphasis on the

motives to follow a law since motive is also an internal and physiological percepts of an

individual. Contrary to other philosophers, Kant believed that obedience of law is not ethical

if a law is followed with motives as a means to an end. Such situation inherently invalidates

the obligatory nature of laws since the consequence may influence the actions of an

individual. For an example, indulging in charity only for the purpose of public attention is not

12
Suri Ratnampal, Jurisprudence, page no-190-191 ,(2009)
13
Bielefeldt, Heiner. “Autonomy and Republicanism: Immanuel Kant’s Philosophy of Freedom.” Political Theory 25, no. 4
(1997): 524–58. http://www.jstor.org/stable/191892.
14
ibid
 Sohraab Singh (22010713)
Section – B; LL.B. 2022
righteous act. However, Kant contradicts himself here on his view of Universalizability (same

degree or standards) as motives of each individual to oblige to a sovereign law is to achieve a

15
different goal . Unlike, Bentham consequentialism theory where a willing to perform a

righteous act is incumbent upon its consequences, Kant’s Deontological Reasoning theory

espouses on morality in the consequence of an action.

Through his work ‘Metaphysics of Morals’, Kant criticised the positivist approach to legal

obligation and elaborated that a positive law lacks the motivation which makes it detrimental

when obeying a law since sanctions (when obligation are not complied with) presupposing

legal imputability for crime and degree of punishment does not consider the moral character

of an individual being sanctioned. Kant believed that such individuals being sanctioned be

venerated of any restrains subjugating their inner freedom 16. In terms of moral obligation,

Kant in his seminal work ‘Critique of Practical Reason’ revealed that inner moral motivation

shall be the driving force for any moral action towards a duty. These inner moral motivations

should seek its origin from a noumenal cause (real world) as opposed to a phenomenal cause

( as one observes it) since the logic/motivations are forged around categorical imperatives

and are incompatible with the phenomenal cause that embodies hypothetical characters 17.

Socially, individuals presuppose an ethical obligation which preceded legal obligation

because the commonwealth is yet forming. Religiously, Kant propounded the doctrine of

virtue which propounds an ethical commonwealth where human beings strengthen one

another’s moral resolve through community participation through church 18.

As a criticism, Oliver Wendall Holmes through his Predictive theory drew attention to a flaw

in Kant’s theory of universal morality. For Holmes’ the outcome of following a rule will be

15
Sobel, Jordan Howard. “Kant’s Moral Idealism.” Philosophical Studies: An International Journal for Philosophy in the
Analytic Tradition 52, no. 2 (1987): 277–87. http://www.jstor.org/stable/4319919.
16
ibid
17
Riley, Patrick. “On Kant as the Most Adequate of the Social Contract Theorists.” Political Theory 1, no. 4 (1973): 450–71.
http://www.jstor.org/stable/191063.
18
Bernstein, Richard J. “The Secular-Religious Divide: Kant’s Legacy.” Social Research 76, no. 4 (2009): 1035–48.
http://www.jstor.org/stable/40972200.
 Sohraab Singh (22010713)
Section – B; LL.B. 2022
the same irrespective of the motivations of a good man or a bad man. The predictive theory

gives a front foot to utilitarian’s by basing the motive to act on the consequences of the

action, while diluting Kant's deontological reasoning.

In conclusion, while asserting his stance on morality and inner freedom that ‘every rational

being has an innate freedom and duty to enter into a civil obligation to preserve one’s own

freedom, Kant fumbled on the notion of ‘Subjectivity of Morality’. His concept of ethics and

failed to guide as to how one can decide if motives or morals are righteous or not.