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Austin – Command Theory

 A law may be said to be a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him.
 The term law embraces the following objects:—Laws set by God to his human
creatures, and laws set by men to men.
 Positive Law – Law strictly so called – Laws made by sovereign and delegates
 The whole or a portion of the laws set by God to men is frequently styled the law of
nature.
 Rejecting the appellation Law of Nature as ambiguous and misleading, Austin named
laws set by God to men as the Divine law, or the law of God.
 Laws set by men to men are of two leading or principal classes. Some are established
by political superiors, sovereign and subject: by persons exercising supreme and
subordinate government, in independent nations, or independent political societies.
 Positive Morality - aggregate of rules, or any portion of that aggregate, positive law:
though rules, which are not established by political superiors, are also positive, or
exist by position, if they be rules or laws, in the proper signification of the term.
 Austin regarded the law of God as revealed in the scriptures to be a primary source of
moral rules. He accorded to these laws the status of 'laws properly so called'
 Austin thought, as Aquinas did, that there is a part of the law of God that is
unrevealed and must be discovered through reason. As God wills the greatest
happiness of all his creatures, reason leads us to the principle of utility
 That judges are the mere agents of the sovereign, authorised to adjudicate disputes
and to supply a rule where one is needed
 Judicial law making is not only inevitable but is also an unambiguous public good.
His complaint about the judiciary was not that they legislated but that they legislated
too cautiously
 The criterion for a law to be 'properly so called' is that it derives from authority.
The others are laws by analogy - laws only in the figurative sense. They resemble
proper laws to varying degrees but are merely the opinions of persons as to what
ought or ought not to be done.
 Proper laws derive from authority. There are two types of proper laws – Divine laws
source of which are the scriptures and manmade laws source of which is the political
superior.
 Law improperly so called - The common denominator of this class is that they are
based on opinion and not authority. They resemble proper laws to varying degrees.
Some of them resemble proper laws closely and are called laws with reason. Others
are only remotely analogous and are called law by 'caprice of the fancy'. Austin
termed the former 'laws by analogy' and the latter 'laws by metaphor’.
 Laws of science are laws by metaphor. They do not command anything to be done
or not done, but predict the effects of physical causes. They are called laws because
they resemble proper laws whose commands usually are obeyed.

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 Laws by analogy are, in Austin's taxonomy, not law but positive morality. This class
includes non-obligatory rules of social etiquette, household rules and moral rules.
Those laws, which are considered to be binding according to general opinion. It also
encompasses customary law, international law and constitutional.

 These rules do not fit within his category of 'laws properly so called', because
they derive their force not from sovereign or divine command and sanction but
from opinion and fear of social disapproval.
 Positive law, according to Austin, comprises the commands of a political sovereign
supported by sanctions on those who disobey. There are three key elements of this
concept of law:
o A political sovereign,
o command
o Sanction

Austin’s attribute of sovereign

 The sovereign is a determinate human superior
o the persons who make up the sovereign must be identifiable
o This is one of the main reasons for Austin's view that customary law is not
positive law. Customary law is the product of generally held opinion of an
indeterminate community of persons. The persons who create customary law
and the persons who are obliged by customary law are to a large extent the
same individuals.
 The bulk of the people habitually obey the sovereign

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o Widespread disobedience of the law usually means that political authority and
the legal system have become ineffective. Such a state, according to Austin, is
the state of nature.
o What is the position when the society is torn by civil war? Austin's answer is
simple. If each warring section of the society habitually obeys its own separate
political superior, the original society is no longer one but two independent
societies.
 The sovereign is not in the habit of obedience to any other human superior.
 The sovereign's power cannot be legally limited
o It cannot be limited by positive law, although it may be constrained by
positive morality
o Austin also asserted that a sovereign cannot place legal limitations on itself or
its successors. Any such limitation is merely a recommended principle or
maxim
o A sovereign, as defined by Austin, may abrogate or disregard any self-
imposed limitation. If the limitation is binding, then the sovereign is not the
sovereign but some other superior by whose will it is binding.
 Sovereignty is indivisible
o In Austinian theory judicial and executive actions are simply different ways of
executing sovereign commands. Officials and judges are mere delegates or
ministers of the ultimate law-making body, the legislature

Command Theory
 Positive law, according to Austin, is produced by a sovereign's command
 A command is not a request but an imperative that creates a duty by the presence of a
sanction. A command involves:-
o a wish or desire conceived by a rational being that another rational being
shall do or forbear;
o an evil in case of noncompliance;
o intimation of the wish by words or other signs
 A command cannot be separated from duty and sanction. They are aspects of a
single event. Where there is a duty there is a command, and where there is a command
there is a duty. In each case the duty arises from the existence of a sanction for breach
 Austin noted three kinds of commonly termed laws that are not imperative laws:
o Declaratory laws do not create new duties but clarify or interpret existing
legal relations. Austin conceded that imperative rules may be enacted under
the guise of a declaration.
o Laws to repeal law are not imperative commands. It should be noted that the
repeal of some laws may create new duties or revive old ones. The repeal of a
law exempting some part of a person's income from tax creates a liability to
the tax.
o Laws of imperfect obligation lay down rules without attaching a sanction for
their breach

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Law and morality

 There are occasions when a rule of positive law is so obnoxious to the moral sense of
the society that its enforcement is successfully resisted. In such instances the rule
remains legally valid but is without practical effect.
 The sovereign is bound to obey the divine law. This, though, is a moral duty and if the
sovereign legislates against divine law it will nevertheless be law.

Disagreement with Bentham

 Bentham's moral theory was wholly materialistic. He argued that God's will is
unknowable and what can be gathered from the scriptures is only 'that which is
presumed’. To be his will on account of the conformity of its dictates to those of some
other principle' Thus, Bentham rejected the notion that the scriptures as a source of
law.
 In Bentham's ideal world the law is fully codified, and the courts have no role in
legal development.

HLA Hart – Positivism

 Hart primarily deals with the following:-
o Law and coercion
o Law and morality
o Nature of rules (Primary & Secondary)
 He criticizes Austin’s command theory for being an external viewed imperative
model of law disregarding the internal element of obedience.
 He also criticizes Austin’s theory for limiting laws to be consisted of commands
backed by sanction. He talks about power conferring laws such as laws of contract
which do not fit in Austin’s theory.
 He makes a case that people do not obey law because of threat of sanction but
because of people’s acceptance of it being binding in nature. Eg: - A gunman who
robs a banker by giving him threat of shooting in case of non-compliance is not
making law despite it being a command backed by sanction. It is in such situation the
Austin’s theory fails.

Rules and Obligations

 Hart’s theory is different from that of Austin as it distinguishes the different kind of
obligations.
 He uses linguistic phrases ‘under an obligation’ and ‘being obliged’ to explain the
difference. In the gunman example, when the gunman ask banker to give away the
money to the gunman, the banker is not under an obligation to give the money but is
being obliged to do so.
 Similarly, if one jumps red light even if knowing the fact that he won’t be fined the
obligation to stop won’t go away despite the absence of sanction and the person will
remain under an obligation to follow traffic rules. (The obligation to follow rules
persists even in absence of sanction)

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 Thus, in Hart’s model rules are followed not because of a sanction but because of
society’s acceptance of the rule being binding.
 The idea of a rule implies an obligation.
 Hart distinguished rules of law other miscellaneous rules such as rules of grammar
and rules of social etiquette. Eg: People attending church on Sunday is a habit and
cannot be considered as a law.
 He considers rules which generate pressure but short fall of physical sanctions as
moral obligations but if they do exert physical sanctions, they can be considered
primitive or rudimentary kind of law imposing legal obligations.

External and Internal aspects

 External Aspect of a rule is statement of observed fact.
 Internal Aspect of a rule is a sense of obligation to follow the rule.
 For example, an alien on earth might simply stop at red light without having a sense
of obligation to follow the rules but a person who follows traffic rule in his country
follows them because he understand the need of traffic safety and thus has an
obligation to follow the same.

Primary and secondary rules of obligation

 Primary rules are those rules of law which impose basic duty on individuals. They
determine what people ought and ought not to do and thereby create obligations
which people of a society need to follow. Eg:- Penal Code, Family Code
 Secondary rules are those rules of law which governing the creation and operation of
the primary rules.
 Secondary rules are power conferring rules in a way that they check the validity of
primary rules. These rules lead to establishment of judiciary, executive and
legislature.
 As per Hart, a developed legal system must have both primary and secondary rules.
 In absence of secondary rules, legal system will be a primitive one and suffer from the
following:-
o Absence of authoritative means to remove ambiguity in meaning and
application of laws
o Primary rules of obligation are relatively static
o No authority for dispute resolution

Rule of Recognition
 Rule of recognition is the ultimate criterion for verifying the validity of both
primary and secondary rules.
 In most of the countries’ constitution is the ultimate rule of recognition.
 Hart’s theory of a developed legal system demands the following:-
o primary rules that are considered valid by the rule of recognition are generally
obeyed by citizens
o rule of recognition is accepted by officials as the standard of official behaviour
 Rule of recognition can change through peaceful or violent means.

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 Change in rule of recognition need not necessarily affect primary rules. Eg: - When
India gained independence from Britain, British laws found to be consistent with
constitution remained in power.

Hart on International Law

 Despite absence of authoritative rule of recognition in international law, Hart
considers it to be law properly so called.
 Hart justifies this claim on his belief that law can exist without a legal system.
 He also asserts this claim on the grounds that International law rules resemble the
primary rules of obligation in a primitive society. They are law because sovereign
states consider them as obligatory and use them to press their claims and to evaluate
and criticise the conduct of other states.

Criticism of Austin
 Austin’s theory does not take into account power conferring laws such as laws of
contract.
 Austin’s theory does not differentiate rules from habits. Rule requires internal
acceptance for obedience of rile unlike a habit.
 Austin theory does not take into consideration the secondary rules.
 Austin theory considers the sovereign’s power to be unlimited while Hart’s theory
does not require the same. Sovereign’s power could be limited to certain areas and if
sovereign exercises its power outside its power then that is not law as sovereign did
not had the power itself to go beyond its scope.

Hart Devlin Debate

Background Facts:
Wolfenden Committee had to prepare a report on issue of legalising homosexuality and
prostitution. The Report came in favour of legalisation as it stated that the law need not
concern itself with immorality. HLA Hart, Lord Patrick and Lord Devlin took part in the
debate.

The primary reason for decriminalisation of homosexuality was on basis of:

 Freedom of choice
 Privacy of morality

Devlin’s position
 Law without morality destroys freedom of conscience and is the paved road to
tyranny.
 He talked about society’s ‘moral fabric’ which the society holds together and if
criminal law does not respect and reinforce society’s morality it will destroy the
‘moral fabric’ leading to disintegration of society.

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 Any category of behaviour that is capable of posing a threat to social cohesion can be
governed by morals laws. They are justified as they protect society against the
disintegrating effects of actions that undermine the morality of a society.
 There is no limit of reach of la and thereby immorality could also be governed by law.
(Immorality is what every right-minded person considered immoral)
 Devlin suggested that common morality could be determined from asking ‘what is
acceptable to the ordinary man, the man in the jury box, who might also be called the
reasonable man or the right minded man’.
 Devlin thus made following recommendations:-
o Privacy should be respected.
o Law should only intervene when society won't tolerate certain behaviour.
o Law should be a minimum standard not a maximum standard.

Hart’s position
 Hart‘s position was based on Mills harm principle. (No act should be interfered with it
unless it affects the rights of another person)
 He warned against dangers of ‘populism’ and was against the view of imposing
majoritarian perception of morality over the remaining members of the society.
 Hart also stated that a mere change in moral views does not lead to disintegration of
society.
 Hart’s approach is much more individualistic to that of Devlin.

Hart Fuller Debate

Background Facts:
A woman in order to avenge her personal grudge against her husband informed of his
disliking of Nazis to the Nazi authorities. After the Nazi government was overthrown the
husband pressed a charge against his wife for illegally depriving him of his liberty. The wife
defended her act on grounds of its legality as under Nazi rule passed by competent legislature
and with her being an obligation to follow the law. Court held wife guilty and found that the
statute under which husband was found guilty was contrary to the sound conscience and
sense of justice of all decent human beings.

Hart’s Position
 Hart being a positivist criticized the judgment for disregarding the written law.
 Hart argued that the law remains law even if it does not meet the demands of
external moral criteria.
 Hart said, ‘Law is not morality; do not let it supplant morality’.
 Hart said that a law being inherently evil and how one ought to react to the law are
two separate issues and merely because a law‘s foundation is on evil it cannot be said
to be law.
 Hart also stated that if wicked/immoral laws are considered valid that does not create
any problem when a choice between two evils has to be made in extreme
circumstances.

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 Hart said that a legal system might show some conformity with justice or morality but
that does not follow that a rule of recognition a criterion of legal validity ought to
include morality in it.
 Law and morality are not interchangeable terms and law cannot be strike down
merely if it’s devoid of any moral content.

Fuller’s Position
 Fuller stated that law must possess certain characteristics if it is to be classified
correctly as ‘law’ and one of most important of such characteristic is ‘inner morality’.
 For Fuller if law contains no morality it is not law.
 He also criticized Hart for ignoring the inherent inability of Nazis to be considered as
a legal system.
 He then criticizes positivism itself and states that the fundamental positivism that law
must be separate from morality. He considers this postulate incorrect as it denies the
possibility of any bridge between the obligation to obey law and other moral
obligations.
 Fuller considered law to be a collaborative effort to aid in the satisfying of mankind’s
common needs with each rule of law having a purpose related to the realisation of a
value of the legal order.
 Since, purpose and values are closely related a purpose may be considered as a fact
and a standard for judging facts and thereby, removing the dualism between ‘is’ and
‘ought’.
 Fuller considered that any regime that assists in the spread of, injustice has forfeited
its right to expect allegiance from its citizens.

Kelsen – Normative Theory (Grundnorm)

Norms and Facts
 Facts consist of things and events in the physical world and revolve around what ‘is’.
 Norms unlike facts focus on what ‘ought’ to be and not what ‘is’.
 X kills Y is a fact. Whether X ought to be punished for committing murder of Y or
not is a norm.
 Norms are of two types - legal norms and moral norms.
 Legal norms are coercive unlike moral norms which are not.
 Legal norms arise from validation by another valid norm.
 Grundnorm – The norm on which all other norms are based and beyond which no
norm is presupposed.

Pure Theory of Law

 Kelsen calls his theory as ‘pure theory of law’ as it attempts to distinguish between
law and what is not strictly law
 His theory distinguishes law from facts and morals.
 The main ingredients of Kelsen’s pure theory are derived from Kant’s theory: -
o the world of things (noumena) and the world of ideas (phenomena);

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o what ‘is’ (sein) and what ‘ought’ to be done or not done (sollen).
 When a law is made the object of the law say it is to provide speedy trials for certain
offences. Then the object is a norm as the act may not be able to always provide for a
speedy trial but the enactment of the act is a fact.
 A norm need not provide a rule of conduct that can be known beforehand.
 Not every expression of will directed to a person is a norm. Robber threatening a
person to handover money a gunpoint is not a norm.
 In order for a norm to be objective it must be authorised by another valid norm.
 Imputation – Effect of a norm
 A norm creates a duty to behave in a certain way by imputing a sanction to the
breach of that duty.

Grundnorm
 Grundnorm is an interpretation of a set of facts. It is not derived from facts but is an
interpretation of them.
 Its effectiveness is directly dependent on the effectiveness of the norms that are
derived from it. E.g. – If government carry out genocidal activities, people will
eventually start disobeying these activities and there will come a time when they will
stop obeying the government itself.
 Effectiveness is a condition of validity but is not validity itself.
 A norm may be valid even when it fails on occasion to be effective in shaping
conduct.
 Occasional infringement of a norm will not render the norm invalid rather it is in the
nature of norms that they are capable of being violated, for if a norm is always
followed it is not a norm but a law of nature.

Kelsen on Revolution
 In a revolution (Peaceful or Violent) the grundnorm may be replaced by events such
as a military coup or grant of independence from colonizer to its colony.
 During revolution even if grundnorm is changed laws made by previous regime
governing citizenry remain unchanged and do so because of implied consent of
new grundnorm.
 The content of these norms remains unchanged but the reason for their validity
changes as the previous grundnorm is displaced by a new grundnorm.

Hart v. Kelsen
 Kelsen says that the normativity of law is based on a grundnorm, whose validity we
accept through tacit or explicit consent and by doing so, we consent to all the
consequent norms of the legal system.
 Hart on the other hand says that normativity of law is based in social practise.
To know what we ought to do, we need to use the fundamental rule of recognition
which is nothing but a set of legal criteria that validates a law.
 Hart's theory is meant as an analytical description of actual practices, while Kelsen
sought a theory purified even of sociological observation.

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 Hart's view of the normative reduced it to a combination of certain types of social

facts, while Kelsen resisted any reduction of "normative' to facts.
 Hart's theory tried to track and explain actual social practices, Kelsen's theory tended
to be more abstract-appropriate for what purported to be a "pure theory”.
 Hart's analysis builds on close attention to actual practices and linguistic usage. On
the other side, Kelsen is offering a kind of logical analysis of law and of normative
thinking in general.

Dworkin
 Law cannot be understood in isolation to culture of a society. Different societies with
different culture can have different meanings of law.
 In the Anglo-American legal culture, power to make law does not lie with physical
force but with moral authority.
 The characteristic that makes people obey law is its integrity. People will obey even
an unjust and unfair law as long as it has integrity as a whole. There are two principles
of political integrity:
o Legislative principle: Legislature should try to make law consistent and
morally coherent with the principles established within the legal system.
o Adjudicative principle: Judiciary should also make an attempt to view the law
as coherent as far as possible by interpreting rules and statues in a manner
consistent with the previous regime.

Dworkin on Principles
 As per Dworkin, Law consist of rules as well as principles.
 When there is no rule judges may resort to principles already imbedded in the legal
system.
 Dworkin argued that judges must always use principle in hard cases and not use
policy decisions.
o Policy does not require consistent decisions.
o Principle requires consistent decisions.
 Dworkin argues that if judges do not make consistent decisions then that will
undermine the faith of the individuals in the judiciary.
 Principle does not automatically answer the legal question and they may be even
contradicted by an official rule. The judge must consider the relevant principle or rule
while making a decision.
 Dworkin assumes a fictitious judge, Hercules, who will go through all the rules and
the principles till he gets an answer to the problem. He assumes that every question
can be answered from within the existing set of rules and principles.
 Judges could make mistake but the fact that they may err does not imply that there is
no right answer to the problem within the legal system.
 A good legal system endeavours to reduce the overall number of mistakes.
 Judges could also import morality while making a decision but the morality has to be
of the system and not that of the judge.

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Dworkin on Law
 Dworkin rejected theories providing a universal description of law.
 He considered that each community has its own understanding of law and therefore
any attempt to universalize the definition of law is futile.
 He identified the following characteristics of his Anglo American culture:-
o Law consists of rights and responsibilities of citizens.
o Political decisions of the ‘right sort’ are the source of rights and
responsibilities. These decisions include constitution, legislation and judicial
decision.
o State’s coercive acts could only be justified to enforce the rights and
responsibilities established by past political acts.

Dworkin on Use of Force

 Dworkin advocates for limited use of force because if courts decide as per their own
whims and fancies the law will become unpredictable and arbitrary.
 Another advantage was this led to a kind of equality which led to like treatment of
persons in like situations. Dworkin did not require absolute equality.
 Dworkin also insisted on integrity of law to ensure that law meets the moral demand.

Dworkin on Interpretation
 Dworkin’s concept of integrity of law demanded that laws be interpreted in a manner
that they remain consistent to earlier established rules and principles.
 In hard cases, Hart stated that judges act as deputy of legislature and it is here that
Dworkin disagreed.
 Dworkin expect a judge to not legislate in hard cases but rather gather a solution from
the existing set of rules and principles to maintain integrity and consistency.
 He identified three stages in the process of interpretation:-
o Pre-interpretive stage
 Interpreter (Judge) identifies relevant material such as statutory
provisions and case law
o Interpretive stage
 Interpreter determine the reason for treating the legal document as
relevant to the case
 Eg:- Application of Copyrights Act in a dispute related to copyright
o Post-interpretive stage
 At this stage, interpreter must identify what will better serve the
justification he accepts at the interpretive stage
 The justification is that the system as a whole promotes integrity of the
law.

Dworkin on Law as Chain Novel

 Dworkin compared the law to a chain novel and the role of the judge to that of a chain
novelist.

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 Each novelist in the chain interprets the chapters he has been given in order to write a
new chapter, which is then added to what the next novelist receives and so on.
 Each has the job of writing his chapter so as to make the novel being constructed the
best it can be, and the complexity of this task models the complexity of deciding a
hard case under law as integrity

Dworkin on Law & Morality

 Dworkin considered a community’s law different from its popular morality.
 He defined popular morality as the set of opinions about justice and other political and
personal virtues that are held as matters of conviction by most members of a
community, or perhaps of some moral elite within it.
 In Anglo American culture, integrity is essential feature of law so accordingly law
may fail popular morality while retaining its integrity.
 He argued that there is moral value in the integrity of law even when its results are
unwelcome.

Legal Realism
 American Realism – Law is not what is written in statutes and it depends on how
courts choose to interpret them.
 Scandinavian Realism – Law cannot be explained by physical facts alone and exists
by the psychological effects caused by certain facts.

American Realism

Oliver Wendell Holmes

 Law is the product of experience and not logic.
 Law is nothing more than the predictions of what courts will or will not do.
 Law may exist independent of and may even be contrary to sovereign’s will. He
argued that customs are as effective as statutory laws when it comes to
regulation.
 Law is the product of economic and social powers and adapt new connotations as
per the need of the time.
 Law exists even prior to its recognition by courts.

Rule of Judiciary
 Final arbiter in common law countries is not the legislature but the highest appellate
court.
 Judges should recognize their duty to weigh considerations of social advantage and
shed away pretensions of not legislating laws as in Holmes opinion judges do
(legislate) it anyway unconsciously.

Law from viewpoint of the Bad Man

 Holmes saw law as set of predictions.
 “The prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law.”

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 He proposed the thesis of a ‘bad man’ for whom the test is it doesn’t matter what
the law is but what the particular court will decide in his case.
 “If you want to know the law and nothing else, you must look at it as a bad man, who
cares only for the material consequences which such knowledge enables him to
predict, not as a good one, who finds his reasons for conduct, whether inside the law
or outside of it, in the vaguer sanctions of conscience.”

Karl Llewellyn
 Law is not like a mathematical function where the judge could simply apply the rules
and reach to a conclusion.
 Rules are ambiguous making leeway for judges to apply their discretion while
adjudicating an issue.
 Since society is constantly evolving rules need to be checked as to how much they
serve the society.
 ‘The law as it is’ is shaped by moral considerations that the courts apply in the guise
of logic.
 Courts need to actively align the law with justice.
 Rules as a criterion to check working of courts would lead to an unfair representation
of the way courts actually decide cases.
 In order to figure out the courts a person must look beyond the rules and study the
various judicial opinions on a particular subject so as to understand how the courts
have used the a particular rule in different situations.
 Following above realist lawyer will deeply engage with past precedents and will find
out a particular rule may be applied but this is still merely a prediction as they are not
certain if precedent will be followed in the next case.
 Since, rules content is dynamic and not static varying from each case to case can they
really be considered a rule. Llewellyn considered that rules properly understood, serve
the dual purpose of promoting legal certainty while allowing judicial freedom to do
what is just.

The Grand Style

 Grand Style is that style in which judges give themselves the authority to reshape the
law according to their wisdom, provided that the grounds for doing so are explicitly
stated and discussed.
 Llewellyn believed that judges of appellate United States were at their best during
first half of nineteenth century when they used the grand style.

Scandinavian realism
 It sought to explain how the law changes the behaviour of people
 This school of thought was opposed to metaphysical speculation and was concerned
with the general investigation of the ‘fundamental facts’ of legal systems.

Karl Olivecrona
 He believed that a monopoly of force is the fundamental basis of law.

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 Law is produced by natural causes such as the actions of human beings that have
natural effects in the form of actual influence on the conduct of judges and
individuals.
 Law’s effect remains psychological as that the law is of binding character is an idea in
human mind and nothing in the outside world corresponds to this idea.
 Olivecrona rejected the Austinian’s concept of law as a command. He suggested that
the law consists of imagined actions of imagined people (such as judges) in an
imaginary situation.
 Despite rejecting law as command he stated that law consists mainly of rules about
the application of force.
 He argued that it is the law that influences morality and not otherwise.
 Law’s effectiveness depends on its moral influence but this moral influence is
required only for few fundamental rules and for the rest of the rules it is sufficient that
people consider adherence to law as a moral obligation and this morality is not
counterbalanced by arbitrary or unreasonable jurisdiction.

Alf Ross
 He made an attempt to describe the nature of a rule by using his description of norms
and legal rules.
 He stated that a norm has two aspects:-
o a directive to do or not something;
o correspondence of the directive to some social facts
 In order to be a norm it must have both the above prescribed aspects.
 Acts done out of practical necessity and not out of a feeling of social or moral
obligation are not norms.
 In order for directive to be a norm it must be perceived as binding.
 Binding here does not mean fear of repercussion in case of noncompliance but rather
internal feeling of obligation that norm is valid.
 Legal rules are different from other norms in the sense that they employ use of
coercion. They contain directives to those in authority.
 Their effectiveness depends on:
o allegiance of officials to the constitution and the institutions under it;
o non-violent sanctions of disapproval and criticism that are implied in this
attitude
 Since legal rules are directed to officials, they are not generally enforced but are
followed voluntarily.
 From the psychological point of view, there are two sets of norms:-
o Primary Legal Norms - Followed generally by citizens whether or not there is
coercion.
o Secondary Legal Norms - prescribe how cases are to be decided
 From logical point of view only secondary legal norms exist

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Natural Law
 Natural law is different from law of nature.
 Law of nature is a scientific theory about the physical universe and how it functions.
Eg:- Law of Gravity
 Natural Right – Every person is endowed with certain natural rights and liberties
simply by virtue of being born.
 Natural law is closely related to concept of natural right but is different in certain
aspects.
 Certain rights and duties exist even in absence of a positive law and these are what
constitute natural law.
 Natural law is not limited to natural rights and certain theories of natural law aim at
broader propositions such as establishing religious law over human law.

Thomas Aquinas
 Aquinas came around the time when the power of the church was declining and
concept of secular state was gaining momentum.
 Aquinas intended to counter this secularism wave through a rational argument.
 He argued that political state is based on the natural needs of man.
 The order, as God is responsible for both needs and their satisfaction. state is part of a
divine
 The controlling principles of the universe supplied the ultimate criteria by which
human laws must be judged.
 Aquinas then divided law into further four categories:-
o Eternal
o Natural
o Divine
o Human

Eternal law
 Aquinas believed that universe is the creation of God.
 He argued that since God is rational by nature, the universe cannot be random.
 Eternal law is divided into two more categories:-
o Laws that are subject of physical, biological and social sciences and according
to which universe functions
o Laws of behaviour that distinguishes right and wrong conduct
 Eternal law is not knowable as to know eternal law is to know God’s mind and that is
not humanly possible.
 Aquinas illustrated this using example of sun by arguing that we do not know what
sun is like but merely an idea from its effects on earth.
 Since every person is subject to eternal law why there exist wrongdoers. Aquinas
gives two reasons:-
o human beings have imperfect knowledge of the eternal law and therefore are
prone to error
o the eternal law rewards good people with happiness and punishes the bad ones

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Natural Law
 Laws forming part of the eternal law that are followed despite not knowing them.
 Human beings follow laws of nature such as eat, drink and sleep despite not knowing
about the biological functions of human body,
 Natural law is that part of the moral eternal law that rational human beings understand
by their God given reason, which is denied to physical objects and other animals.

Divine law
 It consists of the Ten Commandments and other authoritative Scriptures.
 It is important because:-
o Natural law only helps in survival to aspire to a higher supernatural end
directions are needed which are given in divine laws.
o Human understanding to interpret natural rule is flawed and may lead to
wrong interpretation. Hence, cardinal moral rules need to be prescribed.
o Human made laws cannot govern direct interior acts.
o Human laws cannot punish evil all evil without hurting common good. Eg –
Cannot ban virtues like lust, selfishness, impatience etc.

Human law
 It consists of law established by custom or by the legislative acts of the state.
 Aquinas held that the moral authority for human law making is found in that part of
the eternal law which reason reveals to man in the form of natural law.
 There are two ways in which human law is derived from the natural law:-
o By deriving logical consequences from the self-evident premises of natural
law
o By determining the way natural law applies to particular types of cases
 There exists three pre-conditions for the recognition of an enactment as a law at all:-
o Law is made for the common good
o Law is made by the whole people or by God’s vice regent for the whole
people, who is the monarch ruling by divine right
o Law is promulgated

Thomas Hobbes
 Human by nature are selfish and in a state of nature would cause havoc and
destruction.
 In a state of nature every person is at war with every other person.
 Hobbes argues that people by nature do not like conflict and seek peace. This need of
man to come at a peace combined with power of reason allows men to come to terms
of a social contract that allows individuals to live in safety and harmony. (Hobbesian
Social Contract Theory)
 Hobbes several principles of natural law required to be followed while under the
observing the social contract.
 Hobbes’ laws of nature are based on following:-

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o Human beings have the natural right to live and to strive for their own
betterment
o Human survival and flourishing depends on cooperation within society
 These laws could only be maintained by a sovereign body.
 People will have to submit their autonomy to the sovereign in turn of sovereign
providing them protection of natural laws. Sovereign’s authority if it fails to carry
outs its duties of providing protection.

Karl Marx
 Marx’s theory was predominantly materialistic focusing on human existence and
history.
 Marx theory describes how the concept of private property emerges with the rise of
capitalist class in the industrial age.
 Marx criticized the concept of specialisation and division of labour in free markets as
it leads to exploitation of some groups by others. Marx however conceded that it leads
to greater efficiency.
 He argued that division of labour leads to accumulation of wealth and property in
hands of few (Bourgeoisie) and exploitation of working class (Proletariat). This
ultimately leads to class conflict.
 Marx stated that every social system has a base and a superstructure.
o Base - The economic relations constitute the base.
o Superstructure - Law, state and the popular consciousness (understanding) of
the base constitute the base.
o The base and superstructure are inter-dependent.
o The base gives rise to the superstructure and the superstructure protects and
reinforces the base.
o The superstructure changes to reflect the changes in the base.
 The superstructure consists not only of the law but also of the state and its ideology.
The state and law, as superstructure, guarantee the conditions under which capital is
accumulated and commerce and industry are conducted. The state thus becomes the
protector of the capitalist class and the instrument of oppression of the working
classes.
 Marx believed that both the emergence and end of capitalism is inevitable in Marx’s
theory of history.

Roscoe Pound
 As per Pound, in primitive societies the law aimed at nothing more than keeping the
peace.
 In his opinion law’s task post 18th century merged with the aim of ‘bringing about and
maintaining a maximum strength and efficiency in organised society, identifying the
political organisation of society with civilisation.

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 His personal view was that law’s task is to recognise and adjust competing interests
with a minimum of friction and waste.
 He identified legal and judicial activity as a form of social engineering.
 By ‘social engineering’ Pound meant that it was a comparison of the legal task to that
of a problem-solving design engineer who tries to make the machine run more
efficiently and smoothly.

Interests
 Interests are claims that persons make of the legal system.
 Some of these claims are already recognised by law, but there are others that are not
so recognised.
 Pound identified three kinds of interests:
o Individual interests - relate to person, property and personal relations such as
marriage.
o Public interests relate to the dignity of the state as a juristic entity.
o Social interests include the interest in public safety, peace and order, and
public health.
 These interests are frequently in conflict.
 In order to resolve conflicts courts should secure as much as possible of the scheme of
interests as a whole with the least friction and waste.

Justice
Rawls’ theory of justice
 Veil of ignorance – When we isolate our political, physical, social identity along with
our advantages and disadvantages we would choose an original position of equality.
The principles agreed to in such a situation would be just.
 Rawls's idea of the social contract is a hypothetical agreement in an original position
of equality.
 Rawls argue that in such situation utilitarianism and libertarianism would be rejected
because of risk of being in oppressed class.
 He gave two principles of justice that would emerge in such a situation:-
o Equal basic liberties for all citizens which takes priority over considerations of
social utility and the general welfare.
o Difference Principle - Only those social and economic inequalities will be
permitted that work to the advantage of the least well off members of society.
 Can consent create an obligation on its own, or is some element of benefit or reliance
also required?
 Actual contracts carry moral weight insofar as they realize two ideals-autonomy and
reciprocity.
 Voluntary consent does not guarantee the fairness of the agreement and is not
sufficient for create a binding moral claim.

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 An obligation to repay a benefit can arise without consent is not always morally
plausible.
 Wherever there is an obligation, there need not been an agreement. Eg – Tort law is
not based on consent but on obligation to pay.
 Contract based on consent are also not fair due to disparity in party’s bargaining
powers and knowledge.
 Thus, in veil of ignorance when a contract is reached it is just because it removes
arbitrary contingencies that arise because of party’s existing knowledge.
 Rawls explain why people would not gamble while forming social contract as in his
opinion people will not gamble on choosing principles which will govern their
fundamental life prospects. Also, the veil of ignorance would also ensure that they do
not know they like to gamble.
 The distribution of income and wealth that results from a free market with formal
equality of opportunity cannot be considered just. The most obvious injustice of the
libertarian system "is that it permits distributive shares to be improperly influenced by
these factors so arbitrary from a moral point of view."
 Rawls believes that the meritocratic conception corrects for certain morally arbitrary
advantages, but still falls short of justice. "Even if it works to perfection in
eliminating the influence of social contingencies," the meritocratic system "still
permits the distribution of wealth and income to be determined by the natural
distribution of abilities and talents Rawls does not advocate for absolute equality and
using the difference principle creates exception for gifted individuals to develop and
exercise their talents, but with the understanding that the rewards these talents reap in
the market belong to the community as a whole.
 Objection to Difference Principle:-
o Incentives – Critics argue that if incentive is reduced for talented individuals
what is there to stop them from working altogether. Rawls replies saying that
differences in form of incentives are fine as long as these individuals’
activities help the lower most section of society.
o Effort – Critics argue that when Rawls rejects meritocracy what about those
who were meritorious due the amount of effort they had put it in. Rawls
replies that even effort may be the product of a favourable upbringing. Even
the willingness to make an effort, to try, and so to be deserving in the ordinary
sense is itself dependent upon happy family and social circumstances
 Rawls also rejects the moral desert. (Moral desert is what a person deserves.)
 Rawls makes an important but subtle distinction-between moral desert and what he
calls "entitlements to legitimate expectations." The difference is this: Unlike a desert
claim, an entitlement can arise only once certain rules of the game are in place. It can't
tell us how to set up the rules in the first place.
 Rawls argues that distributive justice is not about rewarding virtue or moral desert.
Instead, it's about meeting the legitimate expectations that arise once the rules of the
game are in place.

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Libertarian’s View of Justice (Includes Nozick’s View)

 Objection to redistribution of wealth:-
o Reduces incentive to work and overall decreasing wealth and consequentially
utility of redistribution (Utilitarian Argument)
o Redistribution without consent amounts to coercion (Libertarian View)
 Favour unrestricted markets and oppose government regulation not on grounds of
efficiency but human freedom
 Supports minimal state that limits itself to enforcing contracts, protecting private
property and keeping peace (Nozick’s vision of state – Watchman State)
 They oppose:-
o Paternalistic Policies such as wearing of helmet while driving two wheeler
o Moral legislation such as prohibition of abortion
o Redistribution of wealth or income
 Nozick rejects the idea that a just distribution consists of a certain pattern-such as
equal income, or equal utility, or equal provision of basic needs and rather focuses on
how such distribution came into existence.
 Nozick argues that distributive justice depends on two requirements:-
o Justice in initial holdings - if the resources you used to make your money were
legitimately yours in the first place. (should not be stolen or taken by force or
fraud)
o Justice in transfer - if you made your money either through free exchanges in
the marketplace or from gifts voluntarily bestowed upon you by others.
 For Nozick, if above two requirements are met one is entitled to what he is and cannot
be deprived of the same by the state without his consent.
 He criticizes employment of distributive justice for trying to create equality as it:-
o Needs repeated intervention in the free market to undo the effects of the
choices people make
o It violates the rights of those whose wealth is being taken away
 Taxation of earnings from labour is on a par with forced labour.
 Based on concept of self-ownership
 If an individual owns himself then he owns his labour and accordingly
also the fruits of his labour

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