INDRAPRASTHA LAW COLLEGE

(Affiliated to CCS University, Meerut & approved by Bar Council of India)

LLB 1st semester and BALLB 5th semester session (2024-2025)

JURISPRUDENCE - I

Code -k -1001

PREPARED BY –PREETI DEOL

UNIT - I

INTRODUCTION

Definition of Jurisprudence
The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which
consists of two words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means
knowledge. Jurisprudence, therefore, literally means knowledge of law and its application. It is
difficult to give a singular definition of the term. Since the growth and development of law in
different countries has been under different social and political conditions, the different jurists
have given different definitions according to their own notion of the subject-matter and so it is
not possible to give a universal and uniform definition of Jurisprudence. So the different jurists
have defined this term in different ways

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the
science of the just and unjust". The definition given by Ulpian is wide and broad enough
because it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province
of religion, ethics and philosophy.

Criticism: The above definition is wide and broad enough because it includes the term
'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and
philosophy. The modern jurisprudence does not study the spiritual salvation. It is now-a-days
confined only to what Hindu jurists described as 'Vyavahara' which means those rules that
determines the judicial proceedings or controversies.

Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in those
rules." Prof. Gray is of the opinion that jurisprudence deals with that kind of law which consists
of rules enforced by courts while administering justice. In other words, the laws of the jurists
deal with man and seek to regulate external human conduct in the society. It does not concern
itself with the inner beliefs of man imposed in religious laws, which derive their authority from
superhuman source which we call 'God'. The sanction for their enforcement is spiritual reward
or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is

wrongly applied to actual systems of law, or to current views of laws, or to suggestions for its
amendment, but is the name of a science. The science is a formal, or analytical, rather than a
material one. It is the science of actual or positive law. The essential ingredients of his definition
of jurisprudence are as under-

1. Formal
2. Science

3. Positive Law.

Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks
and Prof. Platt.

According to Gray "Jurisprudence is, in truth, no more a formal science than physiology, so the
acts and forbearances of men and the events which happen to them are the subject-matter of
jurisprudence and physiology could as well dispense with the former as jurisprudence with the
latter."

Salmond: Salmond has defined jurisprudence in two different senses-

1. In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense

means the science of civil law." Salmond says that in a generic and primary sense jurisprudence
includes the entire body of legal doctrine. Since jurisprudence is the knowledge of law, from
this point of view it includes the entire book of laws.

2. Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as

including the entire body of legal doctrine, from jurisprudence in a more specific sense, in
which it means a particular department of such doctrine exclusively. He says that in its limited
significance it may be called theoretical or general jurisprudence to distinguish it from the more
practical and special departments of legal study. In this sense "Jurisprudence is the science of
the first principles of civil law." The words which are used by Salmond in his definitions may
be explained as under-

1. Law: According to Salmond, "Law is the body of principles recognised and applied by
the state in the administration of justice."

2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means
State. Thus, civil law means law made by state. It means the law of the land as opposed to other
bodies of rules to which the name of law has been extended by analogy.

3. Science: According to Salmond, if we use the term science in its widest permissible
sense, as including the systematized knowledge of any subject of intellectual inquiry,
jurisprudence may be defined as the science of civil law. It is a science as distinguished from
arts and indicates in its widest sense all those subjects which directly or indirectly treat of the
science of law. Salmond says that as the 'science of law' there may be three kinds of
jurisprudence

a. Expository or systematic jurisprudence, which deals with the contents of an actual legal
system, as existing at any time whether past or present.

b. Legal history, which is concerned with the legal system in its process of historical
development.

c. The science of legislation, the purpose of which is to set forth law as it ought to be. It
deals with the ideal future of the legal system and the purpose which it may serve.

Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He was the
first jurist to make jurisprudence as a science. By the term "Positive Law" he means 'jus
positivism', that is law laid down by a political superior for commanding obedience from his
subjects.

Austin divides jurisprudence into two parts, namely-

(i) General jurisprudence; and

(ii) (ii) Particular jurisprudence.

By "General jurisprudence", he meant 'the science concerned with exposition of the principles
of nations and distinctions which are common to all the systems of law' whereas Particular
Jurisprudence consisted of the science of any such system of positive law as now obtains or
once actually obtained in specifically determined nation.

Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential
principles of law".

Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of
one particular country but of the general notions of law itself." Paton is of the opinion that
jurisprudence studies the basic or fundamental principles or general notions of law itself.
Conclusion: On the basis of the above description we can say that Salmond's statement that
'jurisprudence is the science of the first principles, of civil law', appears to be more sound than
any other definitions because in fact we study the basic principles of law in jurisprudence and
not the law of any particular country.

NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences.
The reason for this is that it is not codified but a growing and dynamic subject having no
limitation of itself. Every jurist does not base his study on the rules made but tries to understand
their utility after due deliberation. So it can be said that Jurisprudence has no limited scope
being a growing subject. There is a difference of opinion about the nature of jurisprudence. It
is called both Art and Science. But to call it science would be more proper and useful. The
reason for this is that just as in science we draw conclusions after making a systematic study
by inventing new methods, Jurisprudence is concerned with the fundamental principles of law
and systematic and scientific study of their methods.

Scope: Jurisprudence includes all concepts of human order and conduct in State and Society.
According to Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioural study of man in society. It includes political, social, economic
and cultural ideas. It covers the study of man in relation to State and Society." Salmond has
also opined that "In jurisprudence we are not concerned to derive rules from authority and apply
them to problem; we are concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential features of legal system." This makes
the distinction between law and Jurisprudence amply clear. Thus, whereas in law we look for
the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a legal
rule, and what distinguishes law from morality, etiquette and other related phenomenon. It,
therefore, follows that jurisprudence comprises philosophy of law and its object is not to
discover new rules but to reflect on the rules already known.

Contents of Jurisprudence:

The contents of jurisprudence are-

1. Sources: It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Therefore, it obviously forms the contents of jurisprudence. Subject such as custom, legislation,
precedent as a source of law, pros and cons of codification of laws, methods of judicial
interpretation and reasoning, an inquiry into the administration of justice etc. are included for
study.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights,
titles, property, ownership, possession, obligations, acts, negligence, legal personality and the
related issues. The study of these abstract legal concepts furnishes a background for better
understanding of (aw in its various forms.

3. Legal Theory: Legal theory is concerned with law as it exists and functions in the
society, and the manner in which law is created and enforced as also the influence of social
opinion and law on each other.

Utility or Importance of Jurisprudence: Salmond opines that jurisprudence has its own
intrinsic interest like any other subject of serious scholarship. Just as a mathematician
investigates the number theory not with the aim of seeing his findings put to practical use but
by reason of the fascination which it holds for him, likewise the writer on jurisprudence may
be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may
well have their effect on contemporary socio-political thought and at the same time may
themselves be influenced by these ideologies.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks to rationalize
the concepts of law which enables us to solve the different problems involving intricateness of
law. In other words, it serves to render the complexities of law more manageable and rational
and in this way theory can help to improve practice in the seats of law.

Educational Value: Jurisprudence has great educational value. The logical analysis of legal
concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in
shading aside their rigidity and formalism and trains them to concentrate or social realities and
the functional aspects of law. It is not the form of law but the social function of law which has
relevance in modern jurisprudence. Law has to take the needs of society and also of the
advances in related and relevant disciplines such as sociology, economics, philosophy etc. The
proper understanding of law of contract may perhaps require some knowledge of economics
and economic theory or a proper grasp of criminal law may need some knowledge of
criminology and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence, Holland observed, "The
ever renewed complexity of human relations calls for an increasing complexity of legal details,
till a merely empirical knowledge of law becomes impossible." Thus, jurisprudence throws
light on the basic ideas and the fundamental principles of law in a given society. This is why it
has been characterized as "the eye of law" by some jurists.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws
passed by the legislatures by providing the rules of interpretation. It also furnishes them an
opportunity to pinpoint the lacunae, short-comings and defects in the laws framed by the
legislature and remedy them through their judicial interpretation.

The study of jurisprudence helps in rationalizing the thinking of the students and prepares them
for an upright civil life. The knowledge of law and legal precepts also helps them to face every
exigency of human affairs boldly and courageously. Jurisprudence may also be helpful to
legislators who playa crucial role in the process of law-making.

The study of jurisprudence may familiarize them with technicalities of law and legal precepts
thus making their job fairly easy as also interesting. The utility of jurisprudence should be tested
in the light of its functional role and in the context of the prevailing socio-economic and
political philosophies of the time, place and circumstances. The law should serve the purpose
of 'social engineering' by preserving societal values and eliminating conflicting interests of
individuals in the society.

Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the field
of law is called "the eye of law". The eyes are one of the most important parts of human body.
Almonds all human activities and the movements of body are possible only through them.
Unless man can see things properly, he cannot do any work. The reason of calling jurisprudence
the 'eye of law' is that jurisprudence functions for law in the same manner as the eyes do in
human body. The main function of jurisprudence is to study the origin of law, its development
and its contribution towards society. Law is the only nearest and important aspect in the absence
of which the existence of a peaceful and organised society cannot be imagined. Laws are the
basis of all nation-activities. The proper existence of State is in obedience of personal rights
and liabilities of people and the conduct of national activities depends on the existence of solid
and perfect law. The matters relating to birth, marriages, death, succession etc., are equally
controlled through laws. Hence it is essential to know the correct basic principles of law which
are contained only in the jurisprudence. It is necessary that the people should have a sound
knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of
law.
JURISPRUDENCE

TOPICAL OUTLINES

1. Legal Positivism

2. Natural Law

3. Feminist Jurisprudence

4. Marxist Jurisprudence

5. Sociological Jurisprudence

Meaning and introduction to Jurisprudence

The word jurisprudence derives from the Latin term Jurisprudentia, which means "the study,
knowledge, or science of law." In the United States jurisprudence commonly means the philosophy of
law. Legal philosophy has many aspects, but four of them are the most common. The first and the most
prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law.
Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of
jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics,
religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral,
and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding
the answer to such abstract questions as “What is law?” and “How do judges (properly) decide cases?”

Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or
conceptualism, treats law like math’s or science. Formalists believe that a judge identifies the relevant
legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the
outcome of the dispute. In contrast, proponents of legal realism believe that most cases before courts
present hard questions that judges must resolve by balancing the interests of the parties and ultimately
drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to
the political, economic, and psychological inclinations of the judge. Some legal realists even believe
that a judge is able to shape the outcome of the case based on personal biases.
Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources
of law between positivist and natural law schools of thought. Positivists argue that there is no
connection between law and morality and that the only sources of law are rules that have been
expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural
law, insist that the rules enacted by government are not the only sources of law. They argue that
moral philosophy; religion, human reason and individual conscience are also integral parts of the
law.

There are no bright lines between different schools of jurisprudence. The legal philosophy of a
particular legal scholar may consist of a combination of strains from many schools of legal thought.
Some scholars think that it is more appropriate to think about jurisprudence as a continuum.
LEGAL POSITIVISM

Legal positivism is the thesis that the existence and content of law depends on social facts and not on
its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does
not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says
that they do not determine whether laws or legal systems exist. Whether a society has a legal system
depends on the presence of certain structures of governance, not on the extent to which it satisfies
ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what
social standards its officials recognize as authoritative; for example, legislative enactments, judicial
decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never
sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient
or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what
has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom,
positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.”
While it is probably the dominant view among analytically inclined philosophers of law, it is also the
subject of competing interpretations together with persistent criticisms and misunderstandings.

1. The Basic Norm

The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain
modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are created by
acts of will. They are products of deliberate human action. For instance, some people gather in a hall,
speak, raise their hands, count them, and promulgate a string of words. These are actions and events
taking place at a specific time and space. To say that what we have described here is the enactment of
a law, is to interpret these actions and events by ascribing a normative significance to them. Kelsen,
however, firmly believed in Hume's distinction between ‘is’ and
‘ought’, and in the impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus
Kelsen believed that the law, which is comprised of norms or ‘ought’ statements, cannot be reduced to
those natural actions and events which give rise to it. The gathering, speaking and raising of hands, in
itself, is not the law; legal norms are essentially ‘ought’ statements, and as such, they cannot be deduced
from factual premises alone.

How is it possible, then, to ascribe an ‘ought’ to those actions and events which purport to create legal
norms? Kelsen's reply is enchantingly simple: we ascribe a legal ought to such norm-creating acts by,
ultimately, presupposing it. Since ‘ought’ cannot be derived from ‘is’, and since legal norms are
essentially ‘ought’ statements, there must be some kind of an ‘ought’ presupposition at the background,
rendering

John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well
as, more specifically, the approach to law known as "legal positivism." Austin's particular command
theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power that
cannot be ignored.
1. Life
John Austin's life (1790-1859) was filled with disappointment and unfulfilled expectations. His
influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle)
were impressed by his intellect and his conversation, and predicted he would go far. However, in public
dealings, Austin's nervous disposition, shaky health, tendency towards melancholy, and perfectionism
combined to end quickly careers at the Bar, in academia, and in government service. (Hamburger 1985,
1992)
Austin was born to a Suffolk merchant family, and served briefly in the military before beginning his
legal training. He was called to the Bar in 1818, but he took on few cases, and quit the practice of law
in 1825. Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the
recently established University College London. He prepared for his lectures by study in Bonn, and
evidence of the influence of continental legal and political ideas can be found scattered throughout
Austin's writings.
Lectures from the course he gave were eventually published in 1832 as "Province of Jurisprudence
Determined." (Austin 1995) However, attendance at his courses was small and getting smaller, and he
gave his last lecture in 1833. A short-lived effort to give a similar course of lectures at the Inner Temple
met the same result. Austin resigned his University College London Chair in 1835. He later briefly
served on the Criminal Law Commission, and as a Royal Commissioner to Malta, but he never found
either success or contentment. He did some occasional writing on political themes, but his plans for
longer works never came to anything during his lifetime, due apparently to some combination of
perfectionism, melancholy, and writer's block. His changing views on moral, political, and legal
matters also apparently hindered both the publication of a revised edition of "Province of Jurisprudence
Determined," and the completion of a longer project started when his views had been different.

Much of whatever success Austin found during his life, and after, must be attributed to his wife Sarah,
for her tireless support, both moral and economic (during the later years of their marriage, they lived
primarily off her efforts as a translator and reviewer), and her work to publicize his writings after his
death (including the publication of a more complete set of his Lectures on Jurisprudence) (Austin
1873).

While Austin's work was influential in the decades after his death, its impact seemed to subside
substantially by the beginning of the twentieth century. A significant portion of Austin's current
reputation derives from H.L.A. Hart's use (1958, 1994) of Austin's theory as a foil for the explanation
of Hart's own, more nuanced approach to legal theory. In recent decades some theorists have revisited
Austin's work, offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble
1985).

2. Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's utilitarianism
is evident (though with some differences) in the work for which Austin is best known today. On Austin's
reading of utilitarianism, Divine will is equated with Utilitarian principles: "utility is the index to the
law of God ... . To make a promise which general utility condemns, is an offense against the law of
God" (Austin 1873: Lecture VI, p. 307; see also Austin 1995: Lecture II, p. 41). This particular reading
of utilitarianism, however, has had little long-term influence, though it seems to have been the part of
his work that received the most attention in his own day (Rumble 1995: p. xx). Austin early on shared
many of the ideas of the Benthamite philosophical radicals; he was "a strong proponent of modern
political economy, a believer in Hartleian metaphysics, and a most enthusiastic Malthusian." (Rumble
1985: pp. 16-17)
Austin's importance to legal theory lies elsewhere -- his theorizing about law was novel at three
different levels of generality. First, he was arguably the first writer to approach the theory of law
analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments
about law which were secondary to more general moral and political theories). Analytical jurisprudence
emphasizes the analysis of key concepts, including "law," "(legal) right," "(legal) duty," and "legal
validity." Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter
1998), it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an
approach to theorizing about law, has sometimes been confused with what the American legal realists
(an influential group of theorists prominent in the early decades of the 20th century) called "legal
formalism" -- a narrow approach to how judges should decide cases. The American legal realists saw
Austin in particular, and analytical jurisprudence in general, as their opponents in their critical and
reform-minded efforts. In this, the realists were simply mistaken; unfortunately, it is a mistake that can
still be found in some contemporary legal commentators.

(There is some evidence that Austin's views later in his life may have moved away from analytical
jurisprudence towards something more approximating the historical jurisprudence school. (Hamburger
1985: pp. 178-91))

Second, within analytical jurisprudence, Austin was the first systematic exponent of a view of law
known as "legal positivism." Most of the important theoretical work on law prior to Austin had treated
jurisprudence as though it were merely a branch of moral theory or political theory: asking how should
the state govern? (and when were governments legitimate?), and under what circumstances did citizens
have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite
different approach to law: as an object of "scientific" study, dominated neither by prescription nor by
moral evaluation. Subtle jurisprudential questions aside, Austin's efforts to treat law systematically
gained popularity in the late 19th century among English lawyers who wanted to approach their
profession, and their professional training, in a more serious and rigorous manner (Cotterrell 1989: pp.
79-81).

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral
descriptive (or "conceptual" -- though this is not a term Austin used) theory of law. (The main
competitor to legal positivism, in Austin's day as in our own, has been natural law theory.) Legal
positivism does not deny that moral and political criticism of legal systems are important, but insists
that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary
prelude to criticism.
There were theorists prior to Austin who arguably offered views similar to legal positivism or who at
least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with his
amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume, with his argument for
separating "is" and "ought" (which worked as a sharp criticism for some forms of natural law theory,
which purported to derive moral truths from statements about human nature) (Hume 2000); and Jeremy
Bentham, with his attacks on judicial lawmaking and on those, like Sir William Blackstone, who
justified such lawmaking with natural-law-like justifications (Bentham 1970, 1996).

Austin's famous formulation of what could be called the "dogma" of legal positivism is as follows:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry;
whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually
exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate
our approbation and disapprobation. (Austin 1995: Lecture V, p. 157)
Third, Austin's version of legal positivism, a "command theory of law" (which will be detailed in the
next section) has also been influential. Austin's theory had similarities with the views developed by
Jeremy Bentham, whose theory could also be characterized as a "command theory." However, Austen's
work was more influential in this area, because Bentham's jurisprudential writings did not appear in an
even-roughly systematic form until well after Austin's work had already been published. (Bentham
1970, 1996; Cotterrell 1989: pp. 52-53)
3. Austin's Views
Austin's basic approach was to ascertain what can be said generally, but still with interest, about all
laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in
that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced
to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text. Where
Austin does articulate his methodology and objective, it is a fairly traditional one: he "endeavored to
resolve a law (taken with the largest signification which can be given to that term properly) into the
necessary and essential elements of which it is composed." (Austin 1995: Lecture V, p. 117)
As to what is the core nature of law, Austin's answer is that laws ("properly so called") are commands
of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the
constituent concepts of his definition, and by distinguishing law from other concepts that are similar:

• "Commands" involve an expressed wish that something be done, and "an evil" to be imposed
if that wish is not complied with.

• Rules are general commands (applying generally to a class), as contrasted with specific or
individual commands ("drink wine today" or "John Major must drink wine").

• Positive law consisted of those commands laid down by a sovereign (or its agents), to be
contrasted to other law- givers, like God's general commands, and the general commands of an
employer.

• The "sovereign" was defined as a person (or collection of persons) who receives habitual
obedience from the bulk of the population, but who does not habitually obey any other (earthly)
person or institution. Austin thought that all independent political societies, by their nature,
have a sovereign.

• Positive law should also be contrasted with "laws by a close analogy" (which includes positive
morality, laws of honor, international law, customary law, and constitutional law) and "laws by
remote analogy" (e.g., the laws of physics). (Austin 1995: Lecture I).

Austin also wanted to include within "the province of jurisprudence" certain "exceptions," items which
did not fit his criteria but should nonetheless be studied with other "laws properly so called": repealing
laws, declarative laws, and "imperfect laws" - laws prescribing action but without sanctions (a concept
Austin ascribes to "Roman [law] jurists"). (Austin 1995: Lecture I, p. 36)

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality,
convention, and custom. However, also excluded from "the province of jurisprudence" were customary
law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law),
public international law, and parts of constitutional law. (These exclusions alone would make Austin's
theory problematic for most modern readers.)

Within Austin's approach, whether something is or is not "law" depends on which people have done
what: the question turns on an empirical investigation, and it is a matter mostly of power, not of
morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely
is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is
law that is not moral, and what makes something law does nothing to guarantee its moral value. "The
most pernicious laws, and therefore those which are most opposed to the will of God, have been and
are continually enforced as laws by judicial tribunals." (Austin 1995: Lecture V, p. 158).
In contrast to his mentor Bentham, Austin had no objection to judicial lawmaking, which Austin called
"highly beneficial and even absolutely necessary." (Austin, 1995: Lecture V, p. 163) Nor did Austin
find any difficulty incorporating judicial lawmaking into his command theory: he characterized that
form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the
"tacit commands" of the sovereign, the sovereign's affirming the "orders" by its acquiescence. (Austin
1995: Lecture 1, pp. 35-36).

4. Criticisms
As many readers come to Austin's theory mostly through its criticism by other writers (prominently,
that of H.L.A. Hart), the weaknesses of the theory are almost better known than the theory itself:
• In many societies, it is hard to identify a "sovereign" in Austin's sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British
"sovereign" awkwardly as the combination of the King, the House of Lords, and all the
electors of the House of Commons). Additionally, a focus on a "sovereign" makes it
difficult to explain the continuity of legal systems: a new ruler will not come in with the
kind of "habit of obedience" that Austen sets as a criterion for a system's rule-maker.
However, one could argue (see Harris 1977) that the sovereign is best understood as a
constructive metaphor: that law should be viewed as if it reflected the view of a single will
(a similar view, that law should be interpreted as if it derived from a single will, can be
found in Ronald Dworkin's work (1986)).

• A "command" model seems to fit some aspects of law poorly (e.g., rules which grant powers
to officials and to private citizens - of the latter, the rules for making wills, trusts, and
contracts are examples), while excluding other matters (e.g., international law) which we
are not inclined to exclude in the category "law."

• More generally, it seems more distorting than enlightening to reduce all law to one type.
For example, rules that empower people to make wills and contracts perhaps can be (Austin
spoke in this context of the sanction of "nullity") on those who fail to comply with the
relevant provisions. However, such a re-characterization this misses the basic purpose of
 those sorts of laws - they are arguably about granting power and autonomy, not punishing
wrongdoing.

• A theory which portrays law solely in terms of power fails to distinguish rules of terror
from forms of governance sufficiently just that they are accepted as legitimate by their own
citizens.

• (Austin was aware of some of these lines of attack, and had responses ready; it is another
matter whether his responses were adequate.) It should also be noted that Austin's work
shows a silence on questions of methodology, though this may be forgivable, given the
early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was
blazing a new path.

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he did
it by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce all
laws to one kind of rule, but emphasized the varying types and functions of legal rules; and Hart's
theory, grounded partly on the distinction between "obligation" and "being obliged," was built around
the fact that some participants within legal systems "accepted" the legal rules as reasons for action,

I. Two Kinds of Natural Law Theory

At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The
first is a theory of morality that is roughly characterized by the following theses. First, moral
propositions have what is sometimes called objective standing in the sense that such propositions are
the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though
moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: "the truth of
any moral proposition lies in its correspondence with a mind- and convention-independent moral
reality"), the relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988),
Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that standards of
morality are in some sense derived from, or entailed by, the nature of the world and the nature of human
beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which
defines moral law: "the rule and measure of human acts is the reason, which is the first principle of
human acts" (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings are by nature
rational beings, it is morally appropriate that they should behave in a way that conforms to their rational
nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, "natural law").

But there is another kind of natural law theory having to do with the relationship of morality to law.
According to natural law theory of law, there is no clean division between the notion of law and the
notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis
that there are at least some laws that depend for their "authority" not on some pre-existing human
convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some
norms are authoritative in virtue of their moral content, even when there is no convention that makes
moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in
some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the
two theories, strictly speaking, are logically independent. One can deny natural law theory of law but
hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for
example, denied the Overlap Thesis but held something that resembles a natural law ethical theory.

Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a
norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap
Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost
wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem
to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once
wrote, "nature has placed mankind under the governance of two sovereign masters, pain and pleasure.
It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the
one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to
their throne" (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent
with the denial of natural law theory of law.
Conversely, one could, though this would be unusual, accept a natural law theory of law without
holding a natural law theory of morality. One could, for example, hold that the conceptual point of law
is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or
relativism). On this peculiar view, the conceptual point of law would be to enforce those standards that
are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically
independent of natural law theory of morality. The remainder of this essay will be exclusively
concerned with natural law theories of law.

II. Conceptual Naturalism

II.1 The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an
account of what distinguishes law as a system of norms from other systems of norms, such as ethical
norms. As John Austin describes the project, conceptual jurisprudence seeks "the essence or nature
which is common to all laws that are properly so called" (Austin 1995, 11). Accordingly, the task of
conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of
law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal system,
there is some confusion as to both the value and character of conceptual analysis in philosophy of law.

In any event, conceptual analysis of law remains an important, if controversial, project in contemporary
legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture
towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two
main categories: those like natural law legal theory that affirm there is a conceptual relation between
law and morality and those like legal positivism that deny such a relation.
 II.2 Classical Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind
of non-conventional relation between law and morality. According to this view, then, the notion of law
cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may
seem unambiguous, there are a number of different ways in which it can be interpreted.

The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of
Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3)
human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an
eternal universe; as Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all
those scientific (physical, chemical, biological, psychological, etc.) 'laws' by which the universe is
ordered." Divine law is concerned with those standards that must be satisfied by a human being to
achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of
divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the behavior of beings
possessing reason and free will. The first precept of the natural law, according to Aquinas, is the
somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a
natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational
nature of human beings. Good and evil are thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (i.e., that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the natural
law; as Aquinas puts the point: "[E]very human law has just so much of the nature of law as is derived
from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a
perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous remark, an unjust law is
really no law at all.

The idea that a norm that does not conform to the natural law cannot be legally valid is the defining
thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature, being
co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It
is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if
contrary to this; and such of them as are valid derive all their force, and all their authority, mediately
or immediately, from this original" (1979, 41). In this passage, Blackstone articulates the two claims
that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards
that conflict with the natural law; and 2) all valid laws derive what force and authority they have from
the natural law.

Back to Table of Contents

IV. The Procedural Naturalism of Lon L. Fuller
Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantive
moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily
subject to a procedural morality. On Fuller's view, human activity is necessarily goaloriented or
purposive in the sense that people engage in a particular activity because it helps them to achieve some
end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities
can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking
is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its
essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now thoroughly
familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most
modern theories of law, this view treats law as an activity and regards a legal system as the product of
a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law's essential
function is to "achieve social order through subjecting people's conduct to the guidance of general rules
by which they may themselves orient their behavior" (Fuller 1965, 657).

Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of
performing law's essential function of guiding behavior. And to be capable of performing this function,
a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms;

(P2) the rules must be publicly promulgated;

(P3) the rules must be prospective in effect;

(P4) the rules must be expressed in understandable terms;

(P5) the rules must be consistent with one another;

(P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the

rules must not be changed so frequently that the subject cannot rely on them; and (P8) the

rules must be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can
achieve law's essential purpose of achieving social order through the use of rules that guide behavior.
A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people
will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight
principles are "internal" to law in the sense that they are built into the existence conditions for law.
These internal principles constitute a morality, according to Fuller, because law necessarily has positive
moral value in two respects: (1) law conduces to a state of social order and (2) does so by respecting
human autonomy because rules guide behavior. Since no system of rules can achieve these morally
valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's
view, that they constitute a morality. Since these moral principles are built into the existence conditions
for law, they are internal and hence represent a conceptual connection between law and morality. Thus,
like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap
Thesis, which makes him a conceptual naturalist.

Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical

naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints
on the content of law, holding instead that there are necessary moral constraints on the procedural
mechanisms by which law is made and administered: "What I have called the internal morality of law
is ... a procedural version of natural law ... [in the sense that it is] concerned, not with the substantive
aims of legal rules, but with the ways in which a system of rules for governing human conduct must
be constructed and administered if it is to be efficacious and at the same time remain what it purports
to be" (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher level of
abstraction than the classical naturalists. The classical naturalists view morality as providing
substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually
disqualified from being legally valid. In contrast, Fuller views morality as providing a constraint on
the existence of a legal system: "A total failure in any one of these eight directions does not simply
result in a bad system of law; it results in something that is not properly called a legal system at all"
(Fuller 1964, 39).

Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example, denies
Fuller's claim that the principles of legality constitute an internal morality; according to Hart, Fuller
confuses the notions of morality and efficacy:
The author's insistence on classifying these principles of legality as a "morality" is a source of
confusion both for him and his readers. The crucial objection to the designation of these principles of
good legal craftsmanship as morality, in spite of the qualification "inner," is that it perpetrates a
confusion between two notions that it is vital to hold apart: the notions of purposive activity and
morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it
has its internal principles. ("Avoid poisons however lethal if they cause the victim to vomit"....) But to
call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction
between the notion of efficiency for a purpose and those final judgments about activities and purposes
with which morality in its various forms is concerned (Hart 1965, 1285-86).

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral
standards. Thus, while Hart concedes that something like Fuller's eight principles are built into the
existence conditions for law, he concludes they do not constitute a conceptual connection between law
and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of
fairness. For example, public promulgation in understandable terms may be a necessary condition for
efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not
been publicly promulgated in terms reasonably calculated to give notice of what is required. Similarly,
we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules
that require what is impossible. Poisoning may have its internal standards of efficacy, but such
standards are distinguishable from the principles of legality in that they conflict with moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of
efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with
considerable divergence from the principles of legality. Legal standards, for example, are necessarily
promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too
often fail to administer the laws in a fair and even-handed manner even in the best of legal systems.
These divergences may always be prima facie objectionable, but they are inconsistent with a legal
system only when they render a legal system incapable of performing its essential function of guiding
.
Back to Table of Contents
Ronald Dworkin's "Third Theory"
Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism,
which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the
Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary
truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what
ultimately explains the validity of a law is the presence of certain social facts, especially formal
promulgation by a legislature.

The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving
rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that
determine whether or not any given norm counts as a legal norm are binding because of an implicit or
explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue
of the conventional fact that it was formally ratified by all fifty states.

The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law and
morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that
it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in
fact they have often done so" (Hart 1994, 185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the
authority of which cannot be explained in terms of social facts. In deciding hard cases, for example,
judges often invoke moral principles that Dworkin believes do not derive their legal authority from the
social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take
under the will of his victim. At the time the case was decided, neither the statutes nor the case law
governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the
court declined to award the defendant his gift under the will on the ground that it would be wrong to
allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by
citing "the principle that no man may profit from his own wrong as a background standard against
which to read the statute of wills and in this way justified a new interpretation of that statute" (Dworkin
1977, 29).
On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards when
it considered this principle. For the Riggs judges would "rightfully" have been criticized had they failed
to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds
to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best
explanation for the propriety of such criticism is that principles are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive
from promulgation in accordance with purely formal requirements: "[e]ven though principles draw
support from the official acts of legal institutions, they do not have a simple or direct enough connection
with these acts to frame that connection in terms of criteria specified by some ultimate master rule of
recognition" (Dworkin 1977, 41).

On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of its
content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness
that figures into the best moral justification for a society's legal practices considered as a whole. A
moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the
best moral justification for a society's legal practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if and only if it
satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is
the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes
the law the moral best it can be. Accordingly, on Dworkin's view, adjudication is and should be
interpretive:

They decide hard cases by interpreting the political structure of their community in the following,
perhaps special way: by trying to find the best justification they can find, in principles of political
morality, for the structure as a whole, from the most profound constitutional rules and arrangements to
the details of, for example, the private law of tort or contract (Dworkin 1982, 165).
There are, thus, two elements of a successful interpretation. First, since an interpretation is successful
insofar as it justifies the particular practices of a particular society, the interpretation must fit with those
practices in the sense that it coheres with existing legal materials defining the practices. Second, since
an interpretation provides a moral justification for those practices, it must present them in the best
possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following
way:

A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any
interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose
that if more than one interpretation of some part of the law meets this threshold, the choice among
these should be made, not through further and more precise comparisons between the two along that
dimension, but by choosing the interpretation which is "substantively" better, that is, which better
promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something that
resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the basis
of those moral principles that "figure[] in the soundest theory of law that can be provided as a
justification for the explicit substantive and institutional rules of the jurisdiction in question" (Dworkin
1977, 66).
And this is a process, according to Dworkin, that "must carry the lawyer very deep into political and
moral theory." Indeed, in later writings, Dworkin goes so far as to claim, somewhat implausibly, that
"any judge's opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the
visible argument is dominated by citation and lists of facts" (Dworkin 1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis,
according to which judicial decisions always enforce pre-existing rights: "even when no settled rule
disposes of the case, one party may nevertheless have a right to win. It remains the judge's duty, even
in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively"
(Dworkin 1977, 81).

In "Hard Cases," Dworkin distinguishes between two kinds of legal argument. Arguments of policy
"justify a political decision by showing that the decision advances or protects some collective goal of
the community as a whole" (Dworkin 1977, 82). In contrast, arguments of principle "justify a political
decision by showing that the decision respects or secures some individual or group right" (Dworkin
1977, 82).

On Dworkin's view, while the legislature may legitimately enact laws that are justified by arguments
of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of
policy can never provide an adequate justification for deciding in favor of one party's claim of right
and against another party's claim of right. An appeal to a pre-existing right, according to Dworkin, can
ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily
adjudicate claims of right, they must ultimately be based on the moral principles that figure into the
best justification of the legal practices considered as a whole.
Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all three
of legal positivism's core commitments. Each contradicts the Conventionality Thesis insofar as judges
are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social
Fact Thesis because these moral principles count as part of a community's law regardless of whether
they have been formally promulgated. Most importantly, Dworkin's view contradicts the Separability
Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content.
It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.

An Overview of Natural Law Theory by Jonathan

Dolhenty, Ph.D.
Natural law theory is one of the most important theories in the philosophy of Classical Realism. It is
also widely misunderstood by many who have either not taken the time to study it or have heard of it
and dismissed it as a "medieval" relic. What I want to do here is merely sketch out a general
presentation of natural law theory, with the hope that the reader will become interested enough to
pursue further study of it. I will provide a link to more in-depth resources at the end of this essay.

Before we get into an overview of the nature of natural law theory itself, let's take a brief look at some
history.
The concept of natural law has taken several forms. The idea began with the ancient Greeks' conception
of a universe governed in every particular by an eternal, immutable law and in their distinction between
what is just by nature and just by convention. Stoicism provided the most complete classical
formulation of natural law. The Stoics argued that the universe is governed by reason, or rational
principle; they further argued that all humans have reason within them and can therefore know and
obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily
obey the law; if they act in accordance with reason, however, they will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of
God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine
wisdom") which is knowable by human beings by means of their powers of reason. Human, or positive,
law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas
believed that a positive law that violates natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural law theory
found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans
by nature are not only reasonable but social. Thus the rules that are "natural" to them -- those dictated
by reason alone are those which enable them to live in harmony with one another. From this argument,
by the way, Grotius developed the first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued that human
beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society
they surrender only such rights as are necessary for their security and for the common good. Each
individual retains fundamental prerogatives drawn from natural law relating to the integrity of person
and property (natural rights). This natural rights theory provided a philosophical basis for both the
American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity
of "inalienable rights" which were stated in the United States Declaration of Independence.

During the 19th century natural law theory lost influence as utilitarianism and Benthamism, positivism,
materialism, and the historical school of jurisprudence became dominant. In the 20th century, however,
natural law theory has received new attention, partly in reaction to the rise of totalitarianism and an
increased interest in human rights throughout the world. With this contemporary interest in mind, let's
now turn to our attention to the natural law theory as understood by the tradition of Classical Realism.

What do we mean by "natural law"? In its simplest definition, natural law is that "unwritten law" that
is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a
body of moral principles that is common to all humankind and, as generally posited, is recognizable
by human reason alone. Natural law is therefore distinguished from -- and provides a standard for --
positive law, the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of reason. In
fact, it is law discovered by human reason. Our normal and natural grasp of the natural law is effected
by reason, that is, by the thinking mind, and in this service reason is sometimes called "conscience."
We, in all our human acts, inevitably see them in their relation to the natural law, and we mentally
pronounce upon their agreement or disagreement with the natural law. Such a pronouncement may be
called a "judgment of conscience." The "norm" of morality is the natural law as applied by conscience.
Lastly, we can say that the natural law is the disposition of things as known by our human reason and
to which we must conform ourselves if we are to realize our proper end or "good" as human beings.

To sum it up, then, we can say that the natural law:

• is not made by human beings;

• is based on the structure of reality itself;

• is the same for all human beings and at all times;

• is an unchanging rule or pattern which is there for human beings to discover;

• is the naturally knowable moral law;

 • is a means by which human beings can rationally guide themselves to their good.
It is interesting to note that virtually everyone seems to have some knowledge of natural law even
before such knowledge is codified and formalized. Even young children make an appeal to "fair play,"
demand that things be "fair and square," and older children and adults often apply the "golden rule."
When doing so, they are spontaneously invoking the natural law. This is why many proponents of the
natural law theory say it is the law which is "written upon the hearts of men." These are examples of
what is called "connatural knowledge," that is, a knowledge which:

• follows on the "lived experience" of the truth;

• is the living contact of the intellect with reality itself;

• is not always given expression in concepts;

• may be obscure to the knower;

• is overlaid with elements from the affective or feeling side of man's nature.
Now, our reflection on our own conduct gives rise to the explicit formulation of the precepts of the
natural law. We as human beings put our "commonsense" notions of natural law under "critical
examination." In other words, our natural impulses toward "fair play," justice, and so on are subject to
a rigorous investigation and rationalization. And our understanding of natural law becomes more
precise as we consider and codify the principles or precepts of natural law. The primary precept of
natural law will be the most basic principle about human action that can be formulated.

Those readers familiar with Classical Realism will recall that there is an absolutely first and
indemonstrable principle in the speculative order of things. That is, there is an absolutely basic,
selfevident truth of reality upon which we build our entire metaphysics which serves as the foundation
for our view of the ultimate structure of reality. This is the Principle of Contradiction, from which we
derive other basic principles such as Identity and Excluded Middle. Strictly speaking, the Principle of
Contradiction cannot be "proved." It must be accepted as an absolute "intuitive" or self-evident truth,
the truth of which is shown by an analysis of the terms of the Principle and the impossibility of thinking
the opposite.

Natural law theory is of the "practical order" of things and the first principle of the practical order is a
principle that directs human acts in all their operations, and it will be concerned with the "good," since
we act in terms of what a least seems good to us. Therefore, the primary principle of the practical order
-- the first precept of natural law -- is a formulation based upon the notion of the good and is stated in
the following way: The "good" (according to reason) must be done, and evil (what is contrary to reason)
must be avoided. The simplest statement of this precept is, of course, "Do good and avoid evil."
Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we rarely state
the Principle of Contradiction explicitly in daily life), nevertheless we always act in terms of such a
precept. This fact points to the fundamental truth of such a precept, and indicates how it expresses
something "natural" to human beings. A human being naturally inclines to seek what appears good to
reason, and naturally shrinks from what appears to be evil. Hence, the justification of speaking of this
basic moral law as "natural" law.
Upon further reflection, we can distinguish, within natural law, primary and secondary precepts. The
primary precepts will correspond to the order of natural inclinations in human beings. The most
fundamental inclination of all, "Do good and avoid evil," will give rise to other primary precepts such
as the natural inclination to self-preservation, to live in society, to avoid harm to others, and to know
truths about the reality we live in and our own human nature. These primary precepts are unchangeable
to the extent they concern the primary ends of the natural inclinations inherent in all human beings.

The primary precepts are very general in their formulation. The secondary precepts, on the other hand,
are more particular or specific and are concerned with things to which we are not inclined so
immediately. Among these are such precepts as those regarding the education of children, and the
stability of family life, and the demands of hospitality. On the negative side, we also have secondary

analytical branch articulates axioms, defines terms, and prescribes the methods that best enable one to
view the legal order as an internally consistent, logical system. The sociological branch examines the
actual effects of the law within society and th Roman e influence of social phenomena on the
substantive and procedural aspects of law. The theoretical branch evaluates and criticizes law in terms
of the ideals or goals postulated for it.

Thomas Hobbes
Born April 5, 1588, Westport, Wiltshire, Eng.
died Dec. 4, 1679, Hardwick Hall, Derbyshire
English philosopher and political theorist.
The son of a vicar who abandoned his family, Hobbes was raised by his uncle. After graduating from
the University of Oxford he became a tutor and traveled with his pupil in Europe, where he engaged
Galileo in philosophical discussions on the nature of motion. He later turned to political theory, but his
support for absolutism put him

SOCIAL CONTRACT

Actual or hypothetical compact between the ruled and their rulers.

The original inspiration for the notion may derive from the biblical covenant between God and
Abraham, but it is most closely associated with the writings of Thomas Hobbes, John Locke, and
JeanJacques Rousseau. Hobbes argued that the absolute power of the sovereign is justified by a
hypothetical social contract in which the people agree to obey him in all matters in return for a
guarantee of peace and security, which they lack in the warlike “state of nature” posited to exist before
the contract is made. Locke believed that rulers also were obliged to protect private property and the
right to freedom of thought, speech, and worship. Rousseau held that in the state of nature people are
unwarlike but also undeveloped in reasoning and morality; in surrendering their individual freedom,
they acquire political liberty and civil rights within a system of laws based on the “general will” of the
governed. The idea of the social contract influenced the shapers of the American Revolution and the
French Revolution and the constitutions that followed them.

Thomas Hobbes and John Locke

Thomas Hobbes and John Locke, where they agreed and disagreed concerning nature, natural law, and
the nature of man in a state of war.
Thomas Hobbes and John Locke were two main political philosophers during the seventeenth century.
Hobbes is the well known author of Leviathan, and Locke is the author of An Essay Concerning Human
Understanding. In their essays, both men address the characteristics of man, natural law, and the
purpose and structure of government. The two men have very different opinions of the characteristics
of man. Hobbes sees man as being evil, whereas Locke views man in a much more optimistic light.
They both agree that all men are equal according to natural law. However, their ideas of natural law
differ greatly. Hobbes sees natural law as a state of war in which every man is a enemy to every man.
Locke on the other hand, sees natural law as a state of equality and freedom. Locke therefore believes
that government is necessary in order to preserve natural law, and on the contrary, Hobbes sees
government as necessary in order to control natural law.

Hobbes and Locke see mankinds natural characteristics in two very different ways. Hobbes describes
the life of man as solitary, poor, nasty, brutish, and short. He obviously does not think very highly man.
He also says that it is hard for men to believe there be many so wise as themselves, expressing his
discontent with how selfish men are. Conversely, Locke views mankinds natural characteristics much
more optimistically. Locke sees men as being governed according to reason. He perceives men to be
thinking, capable individuals that can coexist peacefully. Hobbes and Locke disagree on mankinds
natural characteristics, but the degree of their disagreement grows much larger with respect to natural
law.

The main thing that Hobbes and Locke can seem to agree on, with respect to natural law, is that all
men are equal in nature. For Hobbes, this equality exists in a state of war, in which every man has a
right to every thing. He terms this state of war, a state of equality, because even the weakest has strength
enough to kill the strongest. In Hobbess opinion, no one is superior, because they are all equal in their
level of rottenness. Locke agrees that in natural law, no one is superior. However he writes, the state
all men are naturally inis a state of perfect freedom equality and liberty, displaying his belief that men
are sensible by nature, and can exist happily according to natural law, without the need for constant
war. Locke does admit that war is sometimes necessary, but that one may only destroy a man who
makes war upon him. In general, he believes that it is beneficial for humans to follow natural law.

Since natural law is good, and not evil for Locke, it is therefore the role of government to preserve
natural law. For Hobbes on the other hand, government must exist in order to control natural law.
Hobbes reasons that people will abide by the laws the government sets, for fear of some evil
consequence. Hobbes points out the selfish reasons for why man will follow government in order to
explain how government is able to work, with men being so naturally evil. Locke sees government, as
merely a preservation of that which is already good. Locke believes that people are willing to unite
under a form of government so as to preserve their lives, liberties and estates, or in other words, their
property. Since natural law is already good, government not only preserves natural law, but also works
to enhance it.

The ideas presented by Hobbes and Locke are often in opposition. Hobbes tends to take a much more
pessimistic stance; viewing men as evil, natural law as a state of war, and government as something
that can wipe out natural law. Locke takes a much more optimistic stance; viewing men as free and
equal and seeing government as only a preservation of the state they are naturally in. Despite the
difference in their arguments, their ideas were revolutionary for their time. The interest they took in
mans natural characteristics, natural law, and the role of government, provided inspiration for, and was
the focus of many literary works throughout the Enlightenment.

MARXIST JURISPRUDENCE
TUTOR: CHRIS BEHRENS
STUDENT: DAVID RISSTROM: 9106105

In the social production of their existence, men inevitably enter into definite relations, which are
independent of their will, namely relations of production appropriate to a given stage in the
development of their material forces of production. The totality of these relations constitute the
economic structure of society, the real foundation, on which arises a legal and political superstructure
and to which correspond definite forms of social consciousness.

Karl Marx
MARXISM AND LAW
Your ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois
property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose
essential character and direction are determined by the economical conditions of existence in your
class.

Karl Marx, The Communist Manifesto, 24.

Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode of production
is seen as an instrument of class oppression perpetuated as a consequence of its particular historical,
social and economic structures. Indeed, wishing to avoid liberal predisposition towards legal fetishism,
Marxists deny the degree of importance jurisprudence typically affords law in analyses of the
composition and determination of social formations.3
Historical Materialism, is first described in The German Ideology.8 Historic materialism contends that
the catalyst behind societal evolution is materially determined, being predicated on contradictions
between the forces and means of production. As “it is not consciousness that determines life, but life
that determines consciousness”910, law is a reflection of the economic base, rather than the reserve as
liberals such as Dworkin would propose.

Under increasing industrialisation Marx foresaw crystallisation of society into two classes; bourgeoisie
and proletariat. These relations of production developed due to particular forces of production under
the capitalist mode of production that coerced the bourgeoisie to extract surplus value as profit from
the proletariat. Laws, as Marx detailed in Capital, as one element of the social superstructure, assisted
in forcing down wages.10

Collins characterises two Marxist approaches; crude materialism, in which law is simply a reflection
of the economic base; and secondly, class instrumentalism; in which rules emerge because the ruling
class want them to.11 This distinction continues as an area of debate, as demonstrated by O'Malley’s
attacks of Quinney and Chambliss’ crude materialist claim that law is a direct tool of powerful classes
or groups, favouring the more interactionist, and less conflict premised theory of legislative change.12
The Relative Autonomy Thesis is such a theory. Contemporary Marxists such as Marcuse, suggest
mechanisms analogous to the Factory Acts and Vagrancy Acts remain instruments of the ruling class
perpetuating conditions reinforcing this arrangement, especially in relation to the alienating nature of
modern technological rationality.13

BASE AND SUPERSTRUCTURE IN THE CAPITALIST MODE OF PRODUCTION

Much of our law, such as Contract, Property and Commercial Law, is predicated on the existence of
the capitalist mode of production. As Marx’s major project was the critique of capitalism, irrespective
of a belief in revolution, Marxism has a great deal to notify us of in our contemporary jurisprudence.
Marxism postulates that in the social production of their existence, people, independent of their will,
enter into definite relations of production appropriate to a given stage in the development of the
materials forces of production.14 Consequently the societal superstructure, including but not
dominated by law, amongst other hegemonic devices, is determined by the economic base and the
organisation of power in society.15 Marxist jurisprudence concentrates on the relationship between
law and particular historical, social and economic structures, seeing law, unlike liberal theory, as having
no legitimate primacy. Frequently encountered legal rules and doctrine, argue Gramsci16 and
Althusser17, establish modern liberal jurisprudential hegemony.18

Marxist epistemology, with dialectic materialism as the centrepiece of Marxism’s scientific claim,
proclaims in real life, where speculation ends, positive science; the representation of the practical
activity, of the practical progress of development of men, begins.19 Whilst Marx’s materialism does

8
Marx, K., and Engels, F., 1976, The German Ideology, Moscow: Progress Press. 9
 Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 42. 10

Marx, K., ‘Bloody Legislation against the Expropriated, from the en

Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and also the
difference between right and privilege. Hohfeld emphasised that there cannot be a right without a duty.
Right in one person presupposes a duty in another. The concept of a right without a duty is meaningless.
Likewise he also distinguished between rights and privileges. A privilege is available on sufferance. It
is a discretion vested in the person granting it. A right is an entitlement. On this analysis what are
commonly called rights to employment, welfare, etc, are not rights. A right to employment is
meaningless because there is no person who is under a duty to employ. Welfare is not a right. It is a
privilege which is given to certain persons.

Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a right
involves a duty in another person or institution. As an essential commonsense corollary, it must also
involve an acceptance of that duty by the person who is subject to it. It is ironic in society today that
while more and more people are demanding rights, fewer and fewer people are concerned about duties,
least of all those who are most vocal in the assertion of rights. Governments, the Human Rights
Commission and many other government agencies provide doubtful leadership in this regard. They are
educating people about their rights and are attempting to make more and more rights available with no

LAW AND THE DICTATORSHIP OF THE PROLETARIAT

Law, morality, religion, are to him so many bourgeois prejudices, behind which lurk in ambush as many
bourgeois interests.

Karl Marx, The Communist Manifesto, 18

Marxism saw development of the relations of production dialectically, as both inevitable, and creating
hostility. Accelerated by increased class consciousness, as the contradictions of capitalism perforate
the bourgeois hegemony, inevitable revolution an d a dictatorship of the proletariat would facilitate
“socialised production upon a predetermined plan. ”22 Given the scientific nature of Historic
Materialism, and upon recognising the role the state and its laws supply, the proletariat will seize
political power and turn the means of production into state propert y 23, then according to Marxist
jurisprudence, “As soon as there is no longer any class to be held in subjection; as soon as class rule
and the individual struggle for existence … are removed, nothing more remains to be repressed.” 24

COMMUNISM AND THE END OF LAW

reference to logic and commonsense. But they seem unconcerned about the need to educate people
about duties and the importance of a sense of responsibility.

A dangerous byproduct of the welfare state and the growth of government is a profound attitudinal
change in society which makes people demand more and more and contribute less and less. This
transformation of the social psyche has taken place imperceptibly to the point that it unconsciously
pervades the entire society. The preoccupation with rights (particularly state created social and
economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights
becomes self defeating when it is unaccompanied by the commitment to duties. The pressures exercised
by interest groups have become the dominant feature of the modern era. These demands come not only
from the poor and the underprivileged, but also from privileged academic, bureaucratic, social and
business groups. At the same time there is a deafening silence on the question of individual
responsibility.
The interventionist welfare state has become a super patriarchal entity from which individual members
have come to expect solutions to all problems. Rights are being demanded and duties forgotten.
The Bible emphasises duties and responsibilities (not rights). The Ten Commandments are duties.
Duties have been more important than rights in the Australian Achievement. The emphasis on rights to
the near exclusion of duties and responsibilities in modern society is a challenge. There is a grave
danger in the push towards legislative recognition of subjective (so-called) rights in response to the
demands of politically influential pressure groups.

A duty-centred society is preferable to a right-centred society. If individuals are concerned about their
duties, responsibilities and obligations, they cannot but be concerned about the rights and freedoms of
others. A right-centred society is one in which individuals assert their rights. They are encouraged by
the Human Rights Commission and like Commonwealth and State bodies, to demand rights, with no
consideration for the effect of those demands on other people, eg the right to protest and demonstrate
conflicts with the right of pedestrians and motorists to use the public roads for the purpose for which
roads are built.
Governments and pressure groups which focus on rights, give no thought to how rights can operate in
the absence of a climate in which the importance of duties is emphasised.

There is no end to the so-called rights which can be demanded. A right-conscious society, in effect,
recognises a few rights and neglects many others. The rights that are recognised are those which are
demanded by the powerful, the aggressive and the nasty.
There cannot be a right without a duty. An endless cacophony of demands by interest groups for rights
has become a dominant feature of the modern Australian State (fed by legislation which encourages
these demands). At the same time there is a deafening silence on the question of individual
responsibility. The time has come to realise and to emphasise that rights, whether material or political,
depend on the discharge of duties. Wealth and prosperity are created by effort. Only continuing effort
can sustain them. Western societies through effort have achieved a level of prosperity unparalleled in
history.

History has continually demonstrated that the greatest of civilisations decline and fall when they
succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman
civilisations are prime examples. It is not too early for Western Civilization.
• Analytical School / Positivist Theory :

• The start of 19th century might be taken as the mark of the

beginning of the positivist movement. The term ‘positivism’ has
many meanings, which were tabulated by Prof. Hart as follows:
• Laws are commands;
• The analysis of legal concepts is – (a) worth pursuing; (b) distinct
from sociological & historical inquiries;

• Decisions can be deduced logically from predetermined rules

without recourse to social aims, policy or morality;

• Moral judgments can’t be established or defended by rationale,

argument, evidence or proof; &

• The law as it is actually laid down has to be kept separate from the
law that ought to be.

• Positivism flourishes in stable conditions. The difficulties of

maintaining a right separation b/w ‘law what is’ & ‘what ought to
be’ come to light in turmoil.

• • JEREMYBENTHAM ( 1748 – 1832 ) laid down the

foundation of positivism in the modern sense of term. He was a
ferment champion of codified law & of reforming English law,
which was, according to him, in utter chaos. He distinguished
b/w ‘expositional jurisprudence (what the law is)’ & ‘censorial
jurisprudence (what law ought to be) or the art of legislation’.
The main function of the former was ‘to evaluate law’, while that
of the later ‘to analyse law’. In seeking answers to the questions
{ What is a penal code of laws? / What is a civil code? }, he had to
investigate the nature of law, which led him into a maze through
which he mapped out a path of laws in general. This wasfinished
more or less in 1782, but remained unpublished till 1939 when
Prof. Everett disinterred it & published under the title ‘The Limits
of Jurisprudence Defined’ in 1945. A revised edition was
published as
‘Laws in General’ in 1970 under the editorship of Prof. H.L.A. Hart.
• Bentham gave the ‘Principle of Utility’, which says, “Only those
laws are important, which give maximum happiness to the
maximum number of people”. Those laws, which r not giving
maximum pleasure & giving maximum pain to the people ought to
be removed. Pleasure & pain r the basic ingredients of this
principle. He also gave “Hedonistic Calculus, which is the
imaginary principle to judge pleasure & pain of any law”.

· JOHNAUSTIN ( 1790 – 1859 ), who was a Prof. in London

University, is the founder of the Analytical School. He is considered as
the Father of English Jurisprudence. He was elected to the chair of
Jurisprudence in the University of London in 1826. Then he proceeded
to Germany & devoted some time to the study of Roman Law. Austin, a
disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not
what law ought to be’. ‘Positus’ means ‘as it is’.

• The first six (6) lectures were published in 1832 under the title ‘The
Province of Jurisprudence Determined’, while rest were published
posthumously in 1861. He avoided metaphysical method, which
is a German characteristic. The method, which Austin applied, is
called analytical method & he confined his field of study only to
‘positive law’. Therefore, the school founded by him is called by
various names – ‘Analytical’, ‘Positivism’, &
‘Analytical Positivism’. Prof. Allen thinks it proper to call the
Austin’s school as ‘Imperative School’ on the basis of is conception
of law, i.e., ‘Law is
Command’.

• For Austin, the matter of jurisprudence is ‘positive law’; ‘law

simply & strictly so called’ or ‘law set by political superiors to
political inferiors’. He believed that ‘Law’ is only an aggregate of
laws & defined ‘law’, “As a rule laid down for the guidance
of an intelligent being by an intelligent being having
power over him”. To him, law is the command of a sovereign
requiring his subjects to do or forbear from doing something.
There is an implied threat of ‘sanction’ if the command is not
obeyed.
 • LAW
• -----------------------------------------

▪ Law properly so called Law improperly so called

• ------------------------------- --------------------------------

Law by God Law by humans Law by analogy

or Divine Law / Laws set by Law by metaphor

men for men

--------------------------------

Law by political Law by superiors Law of fashion All the laws

superiors to to inferiors, but & public opinion, of nature, i.e.,
political inferiors the superiors r not i.e., international law of motion,

political superiors law, customs & gravitation,

traditions etc.
This is called
Positive Law --------------------------
Positive Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’. The
former r general commands addressed to the community at large & enjoined classes of
acts & forbearance. They r divided into laws set by God / divine law / law of God &
laws set by men to men. Laws set by men to men also fell into 2 categories – the first
consisted of laws set by political superiors to political inferiors. This was termed by
Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject
matter of jurisprudence. Thus, law properly so-called must hv 3 elements– (i)
command, (ii) sanction & (iii) sovereign. The secondcategory consisted of laws set by
men to men neither as political superiors nor in pursuance of rights conferred upon
them by such superiors, e.g., those set by a master to a servant or the rules of a club.
They r still laws properly so called because they r commands, but he distinguished
them from positive law by giving them the term ‘positive morality’.
 Analogous to the laws of the latter class r a number of rules to which the name ‘laws
improperly so called’ is given. They are opinions or sentiments of an undeterminate
body of men & laws of fashion or honour. He places intl. law under this class. In the
same way, there r certain other rules which r called law metaphorically – laws of
nature. They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to
political inferiors) is the only proper subject matter of jurisprudence. Jurisprudence
is the general science of positive law.

Laws properly so called are species of commands. But being a command, it flows
from a determinate source or emanates from a determinate author. For whenever a
command is expressed of intimated, one party signifies a wish that another shall do or
forbear & the latter is obnoxious to an evil which the former intends to inflict in case
the wish is disregarded. The key to understanding law properly so called lies in duty
which is created by the command of a sovereign. Duty & sanction are correlative
terms – whenever duty lies, a command has been signified & whenever a command
is signified, a duty is imposed.

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which r
inextricably linked & can’t be separated. According to him, there r 3 kinds of laws,
which, though not commands, r still within the province of jurisprudence:

(i) Declaratory of Explanatory Laws : Austin does not regard them as commands
because they r passed only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws : These too r not commands but r rather the revocation of a
command. They release from duties imposed by existing laws & r named permissive
laws.
(iii) Laws of Imperfect Obligation : These laws have no sanction attached to them. Thus,
there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s,
etc.

Criticisms of Austin’s Theory :

(i) Customs ignored : For Austin, law is the command of sovereign. In the early times,
not the command of any superior, but customs regulated the conduct of the people.
 Even after coming of State into existence, customs continued to regulate the conduct.
Therefore, customs should also be included in the study of jurisprudence, but he
ignored them. Customs have been in existence since old times. Customs hv also bn
an important source of law. As per Austin, customs can only be a law if the sovereign
accepts them as law, while customs provide the basis on which the law can be based.
Thus, even if the sovereign does not recognise them as law, customs hv always bn an
important source of law & can’t be ignored.

(ii) Judge-made law : There is no place for judge-made law. In the course of their duty
(while applying precedents & interpreting the law), judges make law. Though an
Austian would say that judges act under the powers delegated to them by the sovereign,
therefore, their acts r the commands of the sovereign. However, in modern times,
judges perform a creative function & Austin’s definition of law does not include it.

(iii) Command theory untenable : Command presupposes a commander. No

indeterminate party can command, expressly or tacitly or can receive obedience or
submission. The question is whether he can be discovered, who might be regarded as
having commanded the whole corpus of law. In democratic system, it is not possible
that one person commands.

(iv) Sanction is not the only means to induce obedience : As per Austin, it is the sanction
alone which induces the man to obey law, while it is open to criticism from many
points of view as there r many other considerations such as reasoning, logic, love, etc.
due to which people obey.

(v) International Law : Austin put Intl. Law under positive morality a/w the law of
honour & law of fashion. The so-called law of nations consists of opinions or
sentiments. It, therefore, is no law properly so called. The main ingredient of law
lacking in Intl. Law is sanction, but this alone will not deprive from being called law.
Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated.
Hence, nobody will accept that Intl. Law is not law. Therefore, according to Austin, a
very imp. branch of law shall be excluded from the study of jurisprudence.

(vi) Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but
this isn’t correct proposition. Law is not an arbitrary command, but it is a growth of
an organic nature. Moreover, law has not grown as a result of blind forces, but it has
been developed consciously & has been directed towards a definite ends. It isn’t
completely devoid of ethical & moral elements. Any law, which is devoid of ethics or
 morality, can’t withstand the test of time. People don’t accept it whole-heartedly
because of it being unethical. Hence, morals hv always bn an integral part of law.

(vii) Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code,
etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act,
Gratuity Act, etc.
Applicability of Austin’s Theory In India :

(1) We don’t hv a legally unlimited or indivisible sovereign. Our constitution is supreme,

though it can be amended, but basic structure can’t be.

(2) Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 –
Vishakha’s case & D.K Basu’s case).

(3) Ordinance making power of the Governor & the President (Art. 123 & 213);

(4) We have quasi-federal system. Though the President has the supreme power, but the
same is exercised by the Prime Minister.

(5) DPSP r not positive law as per Austin. Though DPSP r non-justiciable, yet they r
important as they govern the guidelines for the society. Thus, the principle of ‘is’ &
‘ought’ fails.

Comparison of Bentham & Austin :

(i) Bentham provided a deeper & more adaptable theory. His concept of sovereignty was
flexible as it avoided indivisibility & illimitability. He was, thus, able to accommodate
the division of authority b/w organs as in a federation or division in certain areas as
well as restrictions of authority.

(ii) His concept of law was broader than Austin’s. He avoided the absurdity of ‘law
properly so called’.

(iii) His sanction was both wider & less important than Austin’s sanction. Laws are still
laws even though supported by moral or religious sanctions or they may even be
accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.
• HART’SCONCEPT OF LAW :

Prof. H.L.A. Hart, a British Philosopher and an eminent jurist, is considered as the
significant exponent of Analytical Positivism. Hart in his vital contribution ‘The
Concept of Law’ (1961) has expounded his legal theory as a system of rules by
exploring the relationship b/w law & society. His main objective is to further explain
understanding of law, coercion & morality.
According to Hart, the law is a system of rules. Two types of rules r – ‘Primary’ &
‘Secondary’. Hart rejects Austin’s theory that rule is a kind of command & substitutes
a more elaborate & general analysis of what rules r. Hart observed, “Union of these
two types of rules is the most powerful tool, which will lead to proper general analysis
of the situation created by Austin’s definition of law.

PRs r those that impose duty upon individuals & r binding because of practices of
acceptance which people r required to do or to abstain from certain actions. In other
words PRs impose duties obligations on individuals in primitive community. Due to
social control, such community suffers from 3 defects – uncertainty, static character
& inefficiency. The stage of primitive community requires proper modification to
make the social structure more effective, efficient & certain. This gives rise to SRs &
introduction of SRs (power conferring rules, enabling legislations, to determine when
the rules hv bn broken) is described as step forward as important to society as the
invention of the wheel. He emphasized that ‘Law is a union of P&SRs’ &, thus, it is
born in the society. Under PRs, human beings r required to do or abstain from
certain action, whether they wish or not. SRs r in a sense parasitic upon or secondary
to PRs. While PRs impose duties, SRs confer powers.

While PRs r concerned with the actions which the individuals must or
must not undertake, the SRs specify the ways in which the PRs may be
conclusively ascertained, introduced, eliminated, varied & the fact of
their violation conclusively determined.

According to Hart, a rule is :

(i) something, which creates obligation & simultaneously
(ii) a standard by which one can judge whether rule is right or wrong.

Defects of primitive society / regime of PRO :

(i) Uncertainty about what r primary rules of obligation.

 (ii) Static Character, i.e., new rules r not created & old ones r not repealed.
(iii) Inefficiency of the diffused social pressure by which rules r maintained. There
is a question of who will ascertain finally & authoritatively if a rule has been
violated or not or in case of conflict b/w two rules.

The remedy for each of these 3 defects consists in supplementing the PRO with
SRs, which r rules of a different kind – recognition, change & adjudication (RCA).
The removal of defects will transform a primitive society, i.e., a pre-legal society into
a developed society, i.e., a legal society. If we consider the structure which results
from the combination of PRO with the SRs of RCA, we have a systematic legal system
to meet the requirements of the society.

Remedies :

(i) First remedy for uncertainty is the introduction of the rules of recognition (ROR).
ROR may be simple or complex. It is simple when it is written in texts/statutes. It is
complex when it is not directly mentioned anywhere & has to be deciphered or
deduced from other sources, i.e., doctrine of basic structure, the rule of death sentence
only in the rarest of rare cases, etc. In a developed legal system, the ROR r more
complex & lay down more than one criterion for identification of the ROR–customs,
precedents, etc.

(ii) Second remedy for static nature is the introduction of the rules of change (ROC),
i. e., introduction of legislature which may enact new ROR & repeal old ones that
were created by customs or traditions & r now undesirable. Whenever ROC is
present, the primary ROR will also be there because only ROR will identify by reference
the legislation as a ROC.

(iii) Third remedy for inefficiency is the introduction of the rule of adjudication (ROA),
i. e., the judiciary to authoritatively determine whether on a particular occasion
a PR has been violated or not. ROA don’t impose upon the judges the duty to
adjudicate. Rather, they confer judicial powers & a special status on judicial
declaration reg. the breach of obligations.

The SRs (ROR, ROC & ROA) provides the centralised official ‘sanctions’ of the
system. They describe the heart of a legal system in combination with PRs.

Validity & Efficacy :

 The statement that a particular rule is valid means that it satisfies all the criteria
provided by the ROR. Thus, the ROR is the reason for the validity of a PRO. The
efficacy of the rule means that a PRO, which requires certain behaviour, is obeyed more
often than not. The validity & the efficacy of a rule of obligation r two different things.
But where a rule is not efficacious in the sense that it is not obeyed by anybody, then
a serious challenge can be posed on its validity also.
Rule of Recognition as an ultimate rule :

The ROR, which provides the criteria by which the validity of other rules of the system
is assessed, is an ultimate rule. ROR gives validity to PRO but there is no rule which
provides criteria for the assessment of the validity of the ROR itself. The validity of the
ROR can’t be questioned; such questions r invalid questions. However, the existence
& validity of the ROR need not be presupposed as is the case with Kelsen’s
Grundnorm. Hart’s ROR is positive.

According to Hart, there r two minimum conditions necessary & sufficient for the
existence of a legal system :

(i) PRO, which r valid according to the ultimate ROR, must be generally obeyed; &

(ii) ROR, which specifies the criteria of legal validity & ROC & ROA, i.e., SRO must be
effectively accepted as common public standards of official behaviour by its officials.

While the first contention is one which only private citizens need to satisfy, the second
condition must be satisfied by the officials of the system. The officials should observe
ROR from internal as well as external point of view, while the private citizens need not
have an internal point of view.

External View : It is taken by those who r concerned with the rules merely as an
observer who does not himself accept them. They r concerned with the rules only to
the extent that any violation of the rules invites sanctions, “I was obliged to do it, I am
likely to suffer for it if ...”

Internal View : It is taken by those members of the society who voluntarily accept
the rules & uses them as guides of their own conduct & as a criterion to evaluate other
people’s conduct.
Criticisms / Difference with Austin : The foundation of Hart’s theory of law is
made of the critical evaluation of Austin’s theory of law.

(i) Hart said that Austin has talked about society & not a legal system.
(ii) He said that Austin failed to acknowledge that the laws r applicablenot only to the
general members of the society, but also to the sovereign members of the society in
their role as individual citizens.

(iii) All the laws r not coercive commands. There r other varieties of law, such as laws
conferring legal powers to adjudicate (public powers) or legislate or to create or vary
legal relations (private powers).

(iv) There r legal rules like customs, which Austin completely ignored.

(v) The analysis of law in terms of the sovereign, habitually obeyed, failed to take into
account model legal system.

(vi) While Austin’s command merely predicts the obligation, Hart’s rule actually
constructs the obligation.

(vii) In place of Austin’s monolithic model, Hart suggests a dual system consisting of two
types of rules – which he described as PRs & SRs.

(viii) Hart said that the judges have a limited discretion, but, in fact, the judicial discretion
must be conceived in positivism permitting judges to look outside law for standards
to guide them while deciding cases.

(ix) Austin & Kelsen condemned natural law, but Hart considers that it is necessary for
law or morality to have a certain content of natural law. Rules of morality r implicit
in Hart’s system of law of PRs & SRs.

(x) For Prof. Dias, distinction b/w a legal & pre-legal state of affairs is not at all clear.
There is difficulty in finding ROR. He alsoquestioned the sharp distinction b/w rules
creating duties & rules creating powers as a legal system is constituted by their union.

The idea of obligation : The Gunman situation : A orders B to hand over

his money & threatens to shoot him if he doesn’t comply.

According to Austin, it illustrates the notion of obligation or duty in general. A must

be the sovereign habitually obeyed & the orders must be general prescribing courses
of conduct & not single actions. Here, the meaning of obligation lies in the fact that
B, if he obeyed, was obliged to hand over money.

B had an obligation or duty to hand over money. But there is a difference b/w the
assertion that someone was obliged to do something & the assertion that he had an
obligation to do it. The first is often a psychological statement about the beliefs &
motives. Hart says that it can be said that B was obliged to hand over his
purse, but it can’t be said that he had an obligation to do that.
 A person had an obligation, e.g., to tell the truth or report for military service. The
statement that he had an obligation is quite independent of the question whether or
not he in fact reported for service; the statement that someone was obliged to do
something normally carried the implication that he actually did it.

Hart has made further contributions on Austin’s approach to law as also his research
has provoked many other jurists from European Countries to develop & critically
examine his ideas thereby enriching the Analytical Jurisprudence.
• KELSEN’SPURE THEORY OF LAW :

Kelsen was a Prof. of Jurisprudence in Vienna University, Austria. He owes his fame
mainly due to his Pure Theory of Law. According to him, a theory of law must deal
with law as it is actually laid down not as it ought to be. Kelsen advocated that a
theory of law should be uniform and it should be to all time & in all places. A theory
is something, which has universal application. In order to make his theory to have
universal application, he desisted from including the elements of sociology, politics,
economics, history or other disciplines because they r subject to variation from one
place to another & from one time to another. Thus, he devised a pure theory, which
would have the ingredient of only one discipline, i.e., law & totally devoid of
sociology, political science, economics, etc.

He insisted that a theory of law must be free from ethics, politics, sociology, history,
etc. Though their value is not denied, but Kelsen insisted that a theory of law must
not have such considerations. There must be a pure theory of law. It is for this reason
that Kelsen refused to define law as a command of sovereign, as Austin stated,
because that introduces subjective & political considerations. He wished his science
to be really objective.

For Kelsen, law is normative & not a natural science based on cause & effect. It is a
norm that directs an official to apply force under certain circumstances. Thus, his
theory of law is a theory of positive law.

Every body of facts has two distinguishable elements :

(i) external manifestation of human conduct that is perceived by our senses
(ii) the legal meaning of this act, i.e., the meaning conferred upon the act by the law.
e.g., people assemble in a large room, make speeches, some raise their hands, others
don’t. This is the external manifestation of the fact. Its meaning is that a statute is
being passed, that a law is being created.
 Every manifested act is subject to 2 meanings – subjective & objective meaning, e.g.,
somebody makes some dispositions stating in writing what is to happen to his
belongings when he dies. The subjective meaning of this act is a testament.
Objectively, however, it may not be a testament due to non-observance of some legal
formalities, etc.

Difference b/w Austin & Kelsen :

(i) The view of Austin is that law is a command backed by a sanction. However, Kelsen
rejects the idea of command as it introduces a psychological element into a theory
which should be pure.
(ii) To Austin, ‘sanction’ is something outside the law which imparts validity to law.
However, Kelsen maintains that the legal ‘ought’ can’t be derived from any fact
outside the law.
(iii) To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards,
etc. r all norms in addition to the command.

Norm & Grundnorm :

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behaviour. In other
words, norm is the meaning of an act of will by which certain behaviour is commanded
or permitted or authorised. Legal norms always belong to the realm of the ‘ought’. It
is different from moral norm. The ‘ought’ in the legal norm refers to the sanction to
be applied to contra-legal behaviour. In this process, Kelsen achieved two objectives :
(i) he removed the natural law and moral or ethical criteria from the concept of positive
law; &
(ii) it also enabled him to solve the problem – how a norm can be said to be valid in case
of illegal behaviour.

‘Grundnorm’ or the basic/fundamental norm is the initial hypothesis upon which the
whole system rests. The ‘Grundnorm’ is the justification for the rest of the legal
system. It is essential that it should command a minimum of support. When it ceases
to be the basis of the legal order, it is replaced by some other ‘Grundnorm’ which
obtains the support of the people. The ‘Grundnorm’ is the starting point for the
philosophy of Kelsen.

A legal order is comprised of norms placed in a hierarchical manner – one norm

placed above another norm & every norm deriving its validity from the norm above
it. The hierarchy takes a pyramid form & symbolizes the legal order. The highest
norm in the hierarchy is called the basic norm or the Grundnorm.

Basic Norm /
Grundnorm

Specific Official Action / Particular Norm

The function of ‘Grundnorm’ is to give objective validity to positive legal order, i.e., it
is the common source for the validity of all norms that belong to legal order. Kelsen
offered no explanation about the source of validity of the ‘Grundnorm’. He
just presupposed that the ‘Grundnorm’ is valid. Kelsen stated that ‘Grundnorm’
need not be the same in every legal order, but a
‘Grundnorm’ of some kind will always be there. The basic point is that those who are
in effective control ought to be obeyed.

The following various features of ‘Grundnorm’ will illustrate the reason for its position
in pyramidal structure :
(i) Grundnorm is not a positive norm or rule of law, but is an extra-legal or
nonlegal norm as it is not derived from any higher norm.
(ii) It itself is not valid or invalid, it is an assumption or a jural postulate.
(iii) It only empowers & does not impose sanctions.
(iv) It validates the rest of the legal system / order.
(v) The pre-supposition of basic norm is based upon effectiveness.
(vi) Basic norm is the pre-supposed starting point of the procedure of creation of
norms.
(vii) It gives validity to norms, but does not give content to norms.

Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize
that jurisprudence must study relationship b/w law & justice, but Kelsen wished to free
the law from the metaphysical mist of justice, material of social science & natural
law. He also refused to follow Austin’s view (law is a command of sovereign) as it
introduces subjective & political considerations in the concept of law. He insisted that
 the sole object of the study of jurisprudence is the nature of norms or standards which
r set up by law.

For him, law & state r really the same thing viewed from different aspects. A legal
order becomes a state when it has developed organs for creation, declaration &
enforcement of law. Kelsen specially emphasized that the relations b/w state & law
r inter-connected & traditional approach can’t continue in the emerging conditions
of the society. But the practical importance of Kelsen’s approach is that he emphasized
that law is a more fundamental notion than that of the state. While it is true that law
can’t exist without a legal order, that order may take forms other than that of the
state. Hence, Kelsen’s theory is wider and, therefore, more acceptable than that of
Austin.

An important feature of Kelsen’s doctrine is that the state is viewed as a system of

human behaviour & an order of compulsions. Thus, only relatively centralised legal
orders r states.

Kelsen also applied his theory of pure science of law to the system known as
‘International Law’, but revealed many limitations. The pure theory requires that
‘Grundnorm’ be discovered. What Kelsen said was that the ‘Grundnorm’ should
command a minimum of support. There r two possible ‘Grundnorm’ in Intl. Law – (i)
The supremacy of each system; & (ii) the supremacy of intl. law. Every national legal
order can recognised any norm superior to its own Grundnorm.

In view of Prof. Dias, it may be the principle of pacta sunt servanda & with ref. to intl.
law, the ‘Grundnorm’ is a pure supposition unlike that of municipal law. Kelsen didn’t
regard the distinction b/w public & private law. He stated that contract may play as
great a part as public law. To him, law may be made either by a parliament, a judge
or a private citizen. Thus, a contract executes a superior norm & creates a binding
obligation. Kelsen believed that reason could derive one form from another, but that
reason would not create an original norm, i.e., ‘Grundnorm’ / one which was not
derived from another.

Criticisms :
(i) The basic norm is a very troublesome feature of Kelsen’s system. It is not clear what
sort of norm this really is, nor what it does, nor where we can find it. (per Lord Lloyd)
(ii) Kelsen did not explain the existence of the basic norm on which the whole legal system
was founded by him. (per Prof. Goodhart)
(iii) As regards the quality of purity, for all purposes, it is dependent on the basic norm.
Since that basic norm itself is the most impure, the subsequent operations must
reproduce that original impurity in the inferior norm, thereby making the whole
system impure.
(iv) The reasons for the validity of a norm can only be the validity of another norm –
total pre-supposition.

Conclusion : Kelsen’s legal theory is an original piece of research, which has

successfully made a vital contribution to jurisprudential thought. His views reg.
norms, right, state, public & private law, have received wide appreciation from
various academicians & jurists. His analysis about legal order is thoughtprovoking.
Being original & creative piece of research, it was bound to encourage contemporary
jurists, eminent judges & philosophers to react & raise many questions for further
clarification & research.

• ANALYTICAL SCHOOL / POSITIVISM (BENTHAM

& AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S
PURE THEORY OF LAW
• HISTORICAL SCHOOL – SAVIGNY & MAINE
• SOCIOLOGICAL SCHOOL OF JURISPRUDENCE •
THEORIES OF CORPORATION PERSONALITY IN
COMPANY LAW
• THEORIES OF CORPORATION PERSONALITY
• LEGAL PERSONALITY
Nature and Scope of Jurisprudence

What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have different

ideologies and notions throughout the world. It is a very vast subject.
When an author talks about political conditions of his society, it reflects that condition
of law prevailing at that time in that particular society. It is believed that Romans were
the first who started to study what is law.

Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.

-Most of our law has been taken from Common Law System.

Bentham was the first one to analyses what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

However, Austin stuck to the idea that law is command of sovereign. The structure of
English Legal System remained with the formal analysis of law (Expositorial) and never
became what it ought to be (Censorial).

J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s extraversion. He

further said that it is a lawyer’s examination of the percept, ideas and techniques of law
in the light derived from present knowledge in disciplines other than the law.

Definitions by:

1. Austin

2. Holland

3. Salmond

4. Keeton

5. Pound

6. Dias and Hughes

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws that is
laws strictly so called. It has nothing to do with the goodness or badness of law.

This has two aspects attached to it:

1. General Jurisprudence- It includes such subjects or ends of law as are common

to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it.

Basically, in essence they are same but in scope they are different.

Salmond’s Criticism of Austin

He said that for a concept to fall within the category of ‘General Jurisprudence’, it should
be common in various systems of law. This is not always true as there could be concepts
that fall in neither of the two categories.

Holland’s Criticism of Austin

He said that it is only the material which is particular and not the science itself.

1. He defined the term positive law. He said that Positive Law means the general rule of
external human action enforced by a sovereign political authority.

2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal here
means that we study only the form and not the essence. We study only the external
features and do not go into the intricacies of the subject. According to him, how
positive law is applied and how it is particular is not the concern of Jurisprudence.

3. The reason for using the word ‘Formal Science’ is that it describes only the form or
the external sight of the subject and not its internal contents. According to Holland,
Jurisprudence is not concerned with the actual material contents of law but only with
its fundamental conceptions. Therefore, Jurisprudence is a Formal Science.

4. This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form, conditions,
social life, human relations that have grown up in the society and to which society
attaches legal significance.

5. Holland said that Jurisprudence is a science because it is a systematized and

properly co-ordinated knowledge of the subject of intellectual enquiry. The term
positive law confines the enquiry to these social relations which are regulated by the
rules imposed by the States and enforced by the Courts of law. Therefore, it is a formal
science of positive law.

6. Formal as a prefix indicates that the science deals only with the purposes, methods
and ideas on the basis of the legal system as distinct from material science which
deals only with the concrete details of law.

7. This definition has been criticized on the ground that this definition is concerned only
with the form and not the intricacies.
Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the
land or civil law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.

2. Specific- This deals with the particular department or any portion of the doctrines.

‘Specific’ is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal

system existing at any time, past or the present.

2. Historical- It is concerned with the legal history and its development

3. Ethical- According to him, the purpose of any legislation is to set forth laws as it
ought to be. It deals with the ‘ideal’ of the legal system and the purpose for which it
exists.

Criticism of Salmond- Critics say that it is not an accurate definition. Salmond only
gave the structure and failed to provide any clarity of thought.

Keeton- He considered Jurisprudence as the study and systematic arrangement of

the general principles of law. According to him, Jurisprudence deals with the
distinction between Public and Private Laws and considers the contents of principle
departments of law.

Roscoe Pound- He described Jurisprudence as the science of law using the term
‘law’ in juridical sense as denoting the body of principles recognized or enforced by
public and regular tribunals in the Administration of Justice.

Dias and Hughes- They believed Jurisprudence as any thought or writing about law
rather than a technical exposition of a branch of law itself.

Conclusion- Thus, we can safely say that Jurisprudence is the study of fundamental
legal principles.

Scope of Jurisprudence- After reading all the above mentioned definitions, we would
find that Austin was the only one who tried to limit the scope of jurisprudence. He tried
to segregate morals and theology from the study of jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it includes all
human conduct in the State and the Society.

Approaches to the study of Jurisprudence- There are two ways

1. Empirical- Facts to Generalization.

2. A Priori- Start with Generalization in light of which the facts are examined.

Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of
serious scholarship and research; researchers in Jurisprudence contribute to the
development of society by having repercussions in the whole legal, political and social
school of thoughts. One of the tasks of this subject is to construct and elucidate concepts
serving to render the complexities of law more manageable and more rational. It is the
belief of this subject that the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the
legal concepts and it sharpens the logical techniques of the lawyer. The study of
jurisprudence helps to combat the lawyer’s occupational view of formalism which leads
to excessive concentration on legal rules for their own sake and disregard of the social
function of the law.

3. The study of jurisprudence helps to put law in its proper context by considering
the needs of the society and by taking note of the advances in related and relevant
disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a
consideration of present social needs and not in the wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light
on basic ideas and fundamental principles of law. Therefore, by understanding the
nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law.
It also helps in knowing the language, grammar, the basis of treatment and assumptions
upon which the subject rests. Therefore, some logical training is necessary for a lawyer
which he can find from the study of Jurisprudence.

6. It trains the critical faculties of the mind of the students so that they can dictate
fallacies and use accurate legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of Jurisprudence which
trains his mind to find alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of
the laws passed by the legislators by providing the rules of interpretation. Therefore,
the study of jurisprudence should not be confined to the study of positive laws but also
must include normative study i.e. that study should deal with the improvement of
law in the context of prevailing socio-economic and political philosophies of time,
place and circumstances.

9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus, for it concerns human thought in relation to
social existence’.

Relationship of Jurisprudence with other Social Sciences

1. Sociology and Jurisprudence- There is a branch called as Sociological

Jurisprudence. This branch is based on social theories. It is essentially concerned with
the influence of law on the society at large particularly when we talk about social
welfare. The approach from sociological perspective towards law is different from a
lawyer’s perspective. The study of sociology has helped Jurisprudence in its approach.
Behind all legal aspects, there is always something social. However, Sociology of Law is
different from Sociological Jurisprudence.

2. Jurisprudence and Psychology- No human science can be described properly

without a thorough knowledge of Human Mind. Hence, Psychology has a close
connection with Jurisprudence. Relationship of Psychology and Law is established in the
branch of Criminological Jurisprudence. Both psychology and jurisprudence are
interested in solving questions such as motive behind a crime, criminal personality,
reasons for crime etc.

3. Jurisprudence and Ethics- Ethics has been defined as the science of Human
Conduct. It strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are
interconnected:

a. Ideal Moral Code- This could be found in relation to Natural Law.

b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.

c. Ethics is concerned with good human conduct in the light of public opinion.

d. Jurisprudence is related with Positive Morality in so far as law is the instrument to

assert positive ethics.
e. Jurisprudence believes that Legislations must be based on ethical principles. It is not
to be divorced from Human principles.

f. Ethics believes that No law is good unless it is based on sound principles of human
value.

g. A Jurist should be adept in this science because unless he studies ethics, he won’t be
able to criticize the law.

h. However, Austin disagreed with this relationship.

4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying

his wants and producing and distributing wealth. Both Jurisprudence and Economics
are sciences and both aim to regulate lives of the people. Both of them try to develop the
society and improve life of an individual. Karl Marx was a pioneer in this regard.

5. Jurisprudence and History- History studies past events. Development of Law

for administration of justice becomes sound if we know the history and background of
legislations and the way law has evolved. The branch is known as Historical
Jurisprudence.

6. Jurisprudence and Politics- In a politically organized society, there are

regulations and laws which lay down authoritatively what a man may and may not do.
Thus, there is a deep connected between politics and Jurisprudence

Jurisprudence Notes- The Nature of Law

Introduction

We know that Law cannot be static. In order to remain relevant, Law has to grow with the
development of the society. In the same manner, the scope of law also cannot be kept
static. The result is that the definition of law is ever changing with the change in society.
The definition of law considered satisfactory today might be considered a narrow
definition tomorrow. This view has been put forward by Professor Keeton. He said that
an attempt to establish a satisfactory definition of law is to seek, to confine
jurisprudence within a Straight Jacket from which it is continually trying to escape.

Let us study the views of Austin and Salmon on the Nature of Law.

Austin said that law is the aggregate of the rules set by men as political superior or
sovereign to men as politically subject. In short, Law is the command of sovereign.
It imposes a duty and duty is backed by a sanction. He further said that there exists
three elements in law:

a. Command

b. Duty

c. Sanction

However, Salmond defined law as the body of principles recognized and applied by
the state in the administration of justice.

Let us comeback to Austin’s definition now.

Austin’s Theory of Law or Imperative Theory of Law As we

know, according to Austin, there are three elements in law:

a. It is a type of command

b. It is laid down by a political superior

c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of
desire. Command is also an expression of desire which is given by a political
superior to a political inferior. The relationship of superior and inferior consists in
the power which the superior enjoys over the inferior because the superior has
ability to punish the inferior for its disobedience.

He further said that there are certain commands that are laws and there are certain
commands that are not laws. Commands that are laws are general in nature. Therefore,
laws are general commands. Laws are like standing order in a military station which is
to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a

body or persons whom a bulk of politically organized society habitually obeys and
who does not himself habitually obey some other person or persons. Perfect
obedience is not a requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men 2.

Human Law- Given by men to men

a. Positive Laws- Statutory Laws

b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists.
There were societies prior to existence of sovereign and there were rules that were in
prevalence. At that point of time, there was no political superior. Law had its origin in
custom, religion and public opinion. All these so called ‘laws’ were later enforced by the
political superior. Thus, the belief that sovereign is a requirement for law has
received criticism by the Historical and Sociological School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said that
the laws which were in existence prior to the existence of state were something like
primitive substitutes of law and not law. They only resembled law. Salmond gave an
example. He said that apes resemble human beings but it is not necessary to
include apes if we define human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is
applicable only to a particular domain. There are laws which are not universally
applicable. Thus, laws are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects
need to be communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign.

But, all laws cannot be expressed as commands. Greater part of law in the system is not
in the nature of command. There are customs, traditions, and unspoken practices etc.
that are equally effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for
a Democratic state, laws exist not because of the force of the state but due to willing of
the people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there
exists no sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to

International Law. International Law represents law between sovereigns. According to
Austin, International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of

the various organs of the state. It comprises of various doctrines such as separation of
power, division of power etc. Thus, no individual body of a state can act as sovereign or
command itself. Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal

Laws have their origin in religion, customs and traditions. Austin’s definition strictly
excludes religion. Therefore, it is not applicable to personal laws.
9. Disregard of Ethical elements- The moment law is devoid of ethics, the law
loses it colour and essence. Justice is considered an end of law or law is considered a
means to achieve Justice. However, Austin’s theory is silent about this special
relationship of Justice and Law. Salmond said that any definition of law which is
without reference to justice is imperfect in nature. He further said ‘Law is not right
alone, it is not might alone, it a perfect union of the two’ and Law is justice speaking to
men by the voice of the State. According to Salmond, whatever Austin spoke about is ‘a
law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and
law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect
definition should include both ‘a law’ and ‘the law’.

10. Purpose of law ignored- One of basic purposes of Law is to promote Social
Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part has
been ignored by Austin.

Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple
definition of law because he has excluded ethics and religion from the ambit law. Thus,
he gave a paramount truth that law is created and enforced by the state.

Salmond’s Definition of Law

According to Salmond ‘Law may be defined as the body of principles recognized

and applied by the state in the administration of justice’. In other words, law
consists of rules recognized and acted upon by the Courts of Justice.

Salmond believed that law may arise out of popular practices and its legal character
becomes patent when it is recognized and applied by a Court in the Administration of
Justice. Courts may misconstrue a statute or reject a custom; it is only the Ruling of the
Court that has the Binding Force of Law.

He further said that laws are laws because courts enforce them. He drew a lot of
emphasis on Administration of Justice by the Courts. He was of firm belief that the true
test of law is enforceability in the courts of law.

Thus, we see that Salmond has defined law in the abstract sense. His definition brings
out the ethical purpose of law. In his definition, law is merely an instrument of Justice.

Criticism by Vinogradoff

Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law
with reference to Administration of Justice inverts the logical order of ideas. The
formulation of law is necessary precedent to the administration of justice. Law
has to be formulated before it can be applied by a court of justice.
He further said that the definition given by Salmond is defective because he thinks law is
logically subsequent to administration of justice. Existence of a Rule of Law because
Courts of Justice could apply it and enforce it while deciding cases, vitiates the definition
of law.

Natural Law or Moral Law

Natural Law refers to the Principles of Natural right and wrong and the Principle of
Natural Justice. Here, we must use the term ‘justice’ in the widest sense to include to all
forms of rightful action. Natural Law is also called Divine Law or Law of Reason or The
Universal Law and Eternal Law. This law is a Command of the God imposed on Men.

Natural Law is established by reason by which the world is governed, it is an unwritten

law and it has existed since the beginning of the world and hence, is also called Eternal
Law. This law is called Natural Law as its principles are supposed to be laid down by god
for the guidance of man. It is called Rational Thought because it is based on reason.
Natural Law is unwritten as we do not find it in any type of Code. Therefore, Natural law
exists only in ideal state and differs from law of a State. Philosophy of Natural law has
inspired legislation and the use of reason in formulating a System of law.

Purpose and function of law

Society is dynamic and not static in nature. Laws made for the people are also not static
in nature. Thus, purpose and function of law also cannot remain static. There is no
unanimity among theorists as to purpose and function of law. Thus, we will study
purpose and function of law in the context of advantages and disadvantages.

1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity and certainty of administration of justice.

ii. Law is no respecter of personality and it has certain amount of certainty attached
to it.

iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law
is certain and it is known. It is not enough that justice should be done but it is also
important that it is seen to be done.

iv. Law protects the Administration of Justice from the errors of individual
judgments. Individual whims and fancies are not reflected in the judgment of the
court that follow the Rule of Law.
 b. Legislature represents the wisdom of the people and therefore a law made by the
legislature is much safer because collective decision making is better and more reliable
than individual decision making.

2. Disadvantages of law-

a. Rigidity of Law- An ideal legal system keeps on changing according to the

changing needs of the people. Therefore, law must adjust to the needs of the people and
it cannot isolate itself from them. However, in practice, law is not usually changed to
adjust itself to the needs of the people. Therefore, the lack of flexibility results into
hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of

the existing laws. This creates a situation where very often laws become static
and they do not respond to the progressive society because of the conservative
nature of law.

c. Formalism of law- Most of the times, people are concerned with the technical
operation of law and not the merits of every individual case. It creates delay in
the Justice Delivery system. It also leads to injustice in certain cases.

d. Complexity of law- Sometimes, the laws are immensely intricate and complex.
This causes difficulty in Interpretation of Statutes.

3. Therefore, advantages of law are many but disadvantages are too much- Salmond
Jurisprudence Notes- Administration of Justice

Administration of Justice

A. Views of Theorists on the ‘Importance of Justice’-

a. Salmond- Salmond said that the ‘Definition of law itself reflects that
Administration of Justice has to be done by the state on the basis of rules and principles
recognized’.

b. Roscoe Pound- He believed that it is the court who has to administer justice in a
state. Both, Roscoe Pound and Salmond emphasized upon the Courts in propounding
law. However, Roscoe Pound stressed more on the role of courts whereas Salmond
stressed more on the role of the State.

B. Administration of Justice- There are two essential functions of every State: a.

War
b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned
functions, it is not a state.

Salmond said that the Administration of Justice implies maintenance of rights within
a political community by means of the physical force of the state. However orderly
society may be, the element of force is always present and operative. It becomes latent
but it still exists.

Also, in a society, social sanction is an effective instrument only if it is associated with

and supplemented by concentrated and irresistible force of the community. Social
Sanction cannot be a substitute for the physical force of the state.

Origin and Growth of the concept of Administration of Justice

It is the social nature of men that inspires him to live in a community. This social nature
of men demands that he must reside in a society. However, living in a society leads to
conflict of interests and gives rise to the need for Administration of Justice. This is
considered to be the historical basis for the growth of administration of justice.

Once the need for Administration of Justice was recognized, the State came into being.
Initially, the so called State was not strong enough to regulate crime and impart
punishment to the criminals. During that point of time, the law was one of Private
Vengeance and Self-Help.

In the next phase of the development of Administration of Justice, the State came into
full-fledged existence. With the growth in the power of the state, the state began to act
like a judge to assess liability and impose penalty on the individuals. The concept of
Public Enquiry and Punishment became a reality.

Thus, the modern Administration of Justice is a natural corollary to the growth in the
power of the political state.

C. Advantages and Disadvantages of Legal Justice

a. Advantages of Legal Justice

i. Uniformity and Certainty- Legal Justice made sure that there is no scope of
arbitrary action and even the judges had to decide according to the declared law of the
State. As law is certain, people could shape their conduct accordingly.
ii. Legal Justice also made sure that the law is not for the convenience of a
particular special class. Judges must act according to the law. It is through this that
impartiality has been secured in the Administration of Justice. Sir Edward Coke said that
the wisdom of law is wiser than any man’s wisdom and Justice represents wisdom of
the community.

b. Disadvantages of Legal Justice

i. It is rigid. The rate of change in the society is always more rapid than the rate of
change in the Legal Justice. ii. Legal Justice is full of technicalities and formalities.

iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of
the society, we need complex laws.

iv. Salmond said that ‘law is without doubt a remedy for greater evils yet it brings
with it evils of its own’.

D. Classification of Justice- It can be divided into two parts

a. Private Justice- This is considered to be the justice between individuals. Private

Justice is a relationship between individuals. It is an end for which the court exists.
Private persons are not allowed to take the law in their own hands. It reflects the ethical
justice that ought to exist between the individuals.

b. Public Justice- Public Justice administered by the state through its own tribunals
and courts. It regulates the relationship between the courts and individuals. Public
Justice is the means by which courts fulfil that ends of Private Justice.

E. Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in
accordance with the law. However, it is not always justice that is rendered by the courts.
This is because the judges are not legislators, they are merely the interpreters of law. It
is not the duty of the court to correct the defects in law. The only function of the judges
is to administer the law as made by the legislature. Hence, in the modern state, the
administration of justice according to law is commonly considered as ‘implying
recognition of fixed rules’.
F. Civil and Criminal Justice

Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a
practical standpoint, important distinctions lie in the legal consequences of the two.
Civil Justice and Criminal Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution

or specific decree or other such civil reliefs. However, a Criminal Proceeding usually
results in punishment. There are myriad number of punishments ranging from hanging
to fine to probation. Therefore, Salmond said that ‘the basic objective of a criminal
proceeding is punishment and the usual goal of a civil proceeding is not punitive’.

G. Theories of Punishment

a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is

extremely important. The object of punishment is not only to prevent the wrongdoer
from committing the crime again but also to make him an example in front of the other
such persons who have similar criminal tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an
exemplary punishment should be given to the criminal so that others may take a lesson
from his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the
people under control, penalty protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of righteousness”. However,
critics believe that deterrent effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to

prevent or disable the wrongdoer from committing the crime again. Deterrent
theory aims at giving a warning to the society at large whereas under Preventive
Theory, the main aim is to disable the wrongdoer from repeating the criminal
activity by disabling his physical power to commit crime.

c. Reformative Theory- This theory believes that Punishment should exist to

reform the criminal. Even if an offender commits a crime, he does not cease to be
a human being. He might have committed the crime under circumstances which
might never occur again. Thus, the main object of Punishment under Reformative
theory is to bring about a moral reform in the offender. Certain guidelines have
been prescribed under this theory.
i. While awarding punishment, the judge should study the characteristics and the
age of the offender, his early breeding, the circumstances under which he has
committed the offence and the object with which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the
exact nature of the circumstances so that he may give a punishment which suits
those circumstances.

iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of
the offenders, a revolutionary change may be brought about in their character. However,
the Critics say that Reformative Theory alone is not sufficient, there must be a mix of
Deterrent Theory and Reformative Theory in order to be successful. Critics believe that
in a situation of deadlock between the two theories, the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory

1. Reformative Theory stands for the reformation of the convict but the Deterrent
Theory aims at giving exemplary punishment so that the others are deterred from
following the same course of action.

2. Deterrent Theory does not lead to a reformation of the criminal as it imposes

harsh punishments. Whereas, Reformative Theory believes that if harsh punishment is
inflicted on the criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the

character of the crime. Thus, too much emphasis is given on the crime and too little on
the criminal. However, Reformative Theory takes into consideration the circumstances
under which an offence was committed. Reformative Theory further believes that every
effort should be made to give a chance to the criminal to improve his conduct in the
future.

d. Retributive Theory- In primitive societies, the punishment was mostly

retributive in nature and the person wronged was allowed to have his revenge against
the wrongdoer. The principle was “an eye for an eye”. This principle was recognized
and followed for a long time. Retributive theory believes that it is an end in itself, apart
from a gain to the society and the victim, the criminal should meet his reward in
equivalent suffering.

e. Theory of Compensation- This theory believes that punishment should not

only
be to prevent further crime but it should also exist to compensate the victim who has
suffered at the hands of the wrongdoer. However, critics say that this theory is not
effective in checking the rate of crime. This is because the purpose behind committing a
crime is always economic in nature. Asking the wrongdoer to compensate the victim
will not always lower the rate of crime though it might prove beneficial to the victim.
Under this theory, the compensation is also paid to the persons who have suffered from
the wrongdoing of the government.