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JURISPRUDENCE
LEGAL THEORY
Angles for approaching jurisprudence
- Descriptive "what is” deals with facts and empirical evidence What is the nature of law that functions. What is the nature of law right now - it is a set of rules. This kind of understanding is descriptive.
- Normative “what ought to be”; questions values, norms, and rules; this would never have a universal acceptable answer (grey area) because there’s no empirical evidence supporting it; how do you deduce this thing is ideal or not; distinction between ideal and non- ideal Ex: Natural Law School - there is an end we have to achieve. All laws are made for achieving that ideal situation. John says there are certain ideals we have to achieve. Therefore, every law which helps achieve these goods is a valid law.
- Critical No one meta- narrative For one to deduct facts from theory or theory from facts, you need to apply your ability to reason. Critical Theory says your reason will never be objective, it will be : by bias, which is why there will never be one grant narrative. Normative and Descriptive need not necessarily be mutually exclusive - Ronald Dworkin There cannot just be one narrative because everybody’s reasons will be coloured by who they are and people can never be objective. Law as a Science: flexibility vs. rigidity, universality If laws are more fluctuating or flexible beyond a point, it defeats the purpose of law as in people would be unsure and the entire purpose of law is to guide people in a certain way. By treating law as a science - problematic because law need to be flexible at some points.
Inductive Reasoning: movement from specific to general statement Deductive Reasoning: Movement from general to specific statement Law as physical fact vs normative rule What makes a legal system a good legal system? (Characteristics of a legal system) Certainty of Law, and Regularity of Law
How to define law
Explanation: Elucidating the meaning Criteria of validity of law: what is the criteria for validity of law
- Behavioural: a law can best be defines in the sense in which we reach to law per se or how a law exists in society. Analysis of how law effects behaviour
- Socio- psychological: HLA Hart - Gunman’s example
- Deontic approach: if either of these are applied the law will be valid i. Proper Procedure - If the laws are made in a specific manner they will be correct laws ii. Ethical Standards - If the laws adhere to certain ethical standards acceptable to a certain society. Eg: Constitutional Morality iii. Proper Compliance - If the implementation of laws is correctly done they will be valid laws General scheme for the criteria of validity of law
- Regularity
- Certainty Physical Fact Normative Rule Exist or don’t exist Created by people on the basis of their understanding of life Law of gravity Which actions are acceptable/ not acceptable Are normative rules different from morals?
Classical Natural Law School Emerged in an age where many factors were based on assumptions Thinkers- Plato, Aristotle, Acquinas, Grotius NLS deals with law, morals and reasons. All the theses by these thinkers focus on the overlap between law and morals Overlap Thesis: Overlap between law and morals. Thereby, our morals could be guidelines for framing our laws. Approaches have changed over the years yet the overlap remains constant Two debates which have helped evolved this thesis:
- Hart - Fuller (Internal morality of law) Focus on the debate was a decision of a post war West German court. Under the Third Reich the wife of a German in 1944, wishing to be rid of him, denounced him to the Gestapo for insulting remarks he had made about Hitler’s conduct of the war. He was tried and sentenced to death, though his sentence was converted to service as a soldier on the Russian front. In 1949 the wife was prosecuted for procuring her husband’s loss of liberty. Her defence was that he has committed an offence under a Nazi stature of 1934. The court nevertheless convicted her on the ground that the stature under which the husband has been punished offended the ’sound conscience and sense of justice of all decent human beings' Hart argued that the decision of the court, and similar cases pursuant to it, was wrong , as the Nazi law of 1934 was a valid law since it fulfilled the requirements of the ‘rule of recognition’. Fuller contended that since Nazi ‘law’ deviated so far from morality, it failed to quality as law, and therefore supported the court’s decision. Both Hart and Fuller would have preferred the enactment of retroactive legislation under which the woman could have been prosecuted
- Hart - Devlin (1959) Talked about sexual offences A report was submitted which wanted to decriminalise homosexuality and legalise prostitution Devlin claimed that society has a right to protect itself. If morally, society believed that these acts are wrong, Devlin wants to use law as a medium to protect it. Laws could be framed in order to serve as a means of survival of society. Only make laws society is comfortable with. Hart says rule of recognition helps in framing laws. (Hart believes law is a system of rules)
Society’s right to protect itself is not absolute and flows from what is deemed acceptable in a certain context It is not the opinion of all the people in the society, but for the interest of all people involved in the society. Law is not just an instrument to protect culture but one to solve disputes and settle conflict. Basic tenet of NLS : There are objective moral principles which can be discovered by reason and these principles constitute natural law. Objective Moral Principles are those which would be objectively agreeable to everyone. Can be derived by applying reason to our nature How to decide what are morals/ values - Different approaches taken by NLS to describe overlap between law and morals and to study law
- Scientific Approach: Describes the nature of things, how they behave
- Teleological Approach: Aristotle (end oriented approach to figure out how all our laws will ensure reaching our end goal). Believed everyone has a natural function Talked about two forces (i) Static, and (ii) Change Man does not merely survive, there will be a natural function - Natural thoughts and reasons as to what is to be achieved and why - to find our natural function Established a telos or end through thinking and rationalising Means to achieve will be framed via laws after deciding telos What gives us natural function? Either there is a God, which closes further discussion Or other thinkers brought in the concept of ‘free will’. That all of us are rational human beings with a desire(s) and the free will to decide what is good for ourselves Criticisms: Need not necessarily be all encompassing. Clashes with everyone else’s free will Do we even have free will? Does it even exists Counter: They said it's God’s will. Thus the questions cannot be answered
Aristotle
In NLS, Aristotle was one of the most early crusaders He stated that reasons always going to prevail over legal right where legal right is right or wrong. This concept of right of legality would be a part of reason. But reason in such a case would be holistic and layered. Then the different in reason would be solved by understanding the nature of things. Understanding this ‘one’ or ‘universal’ nature of things would solve the problem between reasons but this is open to vast criticism Further External Natural law and nature of things is quite different as universal morality is derived from nature which may be made by the metaphysical or vice versa Nature of thing is universal and not changeable so has only a specific function and this can be extended to human beings when Aristotle says that their function is to do ’the good’. That is one can also pay attention to the requirements and contact and where eternal natural law says otherwise, then Aristotle has a problem as it does not take the context into consideration Social Contract There are two ways to justify social contract:
- Consent Theory - states that all of us are equals and all equal individuals need to give consent for state formation. This can be seen in all theories propounded by social contract thinkers. This is based on the assumption of our ability to reason that all of us are equal and need dispute solving
- Theory of Justice - Given by Rawls states. That one should have an original position that where one does not know anything about its earthly position then one needs to decide on the distribution and management of resources. That needs to be decided under a veil of ignorance. This strengthens social contract theory, as they provide certain natural rights that are available for everyone
Hobbes
State of nature is war like. Natural law teaches us the need for self preservation. He speaks about formation of state due to individuals coming together (for purely selfish reasons) to surrender our natural freedom in order to create an orderly society and therefore states that the social contract would give the right to self preservation and survival First law of nature is peace Second is that we mutually divest ourselves to certain rights (such as the right to take another person’s life) so as to achieve peace The mutual transferring of rights s a contract and is the basis of moral duty
Such mutual agreements need to be honoured - Hobbes’ third law of nature
Locke
Locke comes in and states that all are inherently good. Therefore, he considers the state of nature as the golden age and sys that the right to property is not being protected in the state of nature. He further states that one has a right to revolt against the government.
Rousseau
States that there are two types of will:
- General Will - which is popular sovereignty. Distinguished from ‘will of all’ which is only a collection of individual wills
- Political Will Law is going to be a law as long as it has the popular majority backing it Man must be forced to be free - individuals surrender their free will to create popular sovereignty. Even Rousseau bases on the concept of equality of all and everyone as reasonable Rousseau states that ’the state’ derives its sovereignty from popular sovereignty which is derived form people’s individual sovereignty
Kant
States. That morality can only arise from freedom. Therefore, law which gives us morals to follow is law whereas any other law is no law at all. Further he states that morality makes freedom possible. He states that all humans do not follow human law (morality) as they do not have holy will. So morality and freedom are same which needs to be subject of every law (which needs to be in conformity with freedom and morality) Further, Kant states that there is autonomy (individual freedom) vs. heteronomy (someone else deciding morality to impose on you) Heteronomy also includes the holy will and God’s will as that is someone else’s notion of morality which emerges from freedom Kant later gets critiqued that there cannot be universally applicable law in both private and public spheres where different laws are applicable For holy will, for Kant, there is a categorical imperative where he states that the consequence of that action. So for him thinking without selfish interest is holy will.
- Compliance possibility - you can’t come up with laws which people can’t comply with.
- Constancy - they have to be fairly constant.
- Congruence between declared rule and efficient action - if you create a law, make sure it is implemented. Criticism: Just because you follow these desiderata, does not mean that you will have morally correct laws. Ex: Apartheid complied with all desiderata This made Fuller modify his thesis. Now, he believes: Law is a purposive enterprise, dependent on its success on the energy and consciousness of the people who follow it. Important Contributions of Fuller: Natural Law School - connection between law and morality Natural Law School should not just look at ends but also the means Processual Arrangements
John Finnis -
Major Contributions:
- Bridges the gap between Natural Law School and Analytical Legal Positivism - How? In the Philosophy of Law, Natural Law is important. Aim of Natural Law is to achieve Human Goods (certain goals to be achieved by human beings during their lifetime). Finnis Identified 7 basic goods. Every legal system should create an atmosphere to protect these seven basic goods. The laws created by a legal system to achieve these goals are Positive Laws, which is just one of the aspects of Natural Law. - this is the bridge between NLS and ALP
- Influenced by Aristotle (Teleological) and Aquinas (God) Accepts the Teleological approach but rejects God as an entity. Still talks about the link between law and morality (common between Aristotle and Aquinas). That link comes about when you create a legal system. (Precondition to a legal system is you living in a society. So, when you are part of this society the idea of morality creeps in. Morality does not exist when you are alone in a vacuum.) Telos for Finnis is achievement of the seven basic goods. Characteristics of the Seven Basic Goods:
- Pre moral - Till the time we have not identified the seven basic goods, we live in a pre- moral society. Even in the pre- moral phase, we have an idea of morality, which is actually the seven basic goods
- Self evident - seven basic goods are self evident. Everybody agrees to the seven basic goods. SEVEN BASIC GOODS
- Life - self preservation and self determination (who you are, what you are, how you make your choice, your realisation of self to the extent to which you decide what you want for yourself)
- Knowledge (for its own sake) - not for your own aim/ goals but only motivated by self curiosity and quest for answers.
- Play - you are actively involved in the act of play
- Aesthetic Experiences - appreciation of beauty. You are not an active participant, you are a spectator to the beauty of nature (distinction between play and aesthetic experiences)
- Sociability - friendship
- Practical Reasonableness - make choices based on rationality while making choices. Finnis gives 9 requirements for practical reasonableness.
- Religion - your quest to understand what is beyond human beings. Spirituality - not just a belief in God. 9 Requirements for Practical Reasonableness:
- Pursuit of Goods
- Coherent plan of life - we have to have an understanding on the ends we have to achieve. Consequentialist.
- No arbitrary preference among values - values are the seven goods. There shouldn’t be any bias while choosing between different goods.
- No arbitrary preference among persons - Ex: doctrine of reasonable classification.
- Detachment and Commitment - you have to open minded enough to detach yourself from things (ex: detaching yourself from religion to respect other people’s choices). Commitment is the commitment to achieve the goods.
- Limited relevance of consequences - he does not want you to be utilitarian. He wants you to keep consequences in mind but only up to a limit. It is not always the ends that are important, but the means as well.
- Respect for every basic value in every act - when we act, we have to act in accordance with respect to these seven basic goods.
- Requirement of common good - you do not have to be selfish in making choices, you have to make choices based on common good as well
- Following your own conscience - don’t force yourself to do something you do not want to do.
John Austin -
Law is the command of sovereign, backed by sanction. Student of Bentham. Largely influenced by him. Austin takes whatever Bentham said forward. Command Theory Imperative Theory - Power hierarchy. Law always flows from superior to inferior. 3 Imp notions for Austin’s definition of Positivism:
- Command: Law is a command. Criticism for this characterisation of law as hierarchal (command will be given from superior to inferior) - law focusses more on equality (human rights, etc) Criticism: command is always prohibitionary rather than something giving permission. His understanding is more for criminal laws rather than civil laws.
- Sovereign: Sovereignty is always going to be illimitable and indivisible. That means one will have a determinate sovereign (it will be one person or a body of persons who exercises this sovereignty).
- Sanctions: Coercion - penalty for not doing what you’re supposed to do. Criticism: Enforcement is very important. Austin does not talk about it. Not all legislations have sanction and are purely regulatory. Criticism: Voluntary obedience - Crimes still happen. Nature of Laws : Criminal Role of Judiciary : (Same as Bentham) Role of courts is different from that of the judiciary. Legislation comes before, courts punish when action actually happens. Bentham was not really interested in the role of courts. Prior Command: Role of Judiciary should be less. Dictate what law IS first. Notion of rights and judiciary protecting rights does not sit well with Austin Dog example - you wait for dog to do something bad THEN punish him. Same with
humans. Habitual Obedience: you obey because you’re scared of punishment, however we majorly obey command of sovereign because we’re habituated to this obedience. This psychological factor is a fact; it is not a legal character or element which makes us follow laws, it is something outside of law that is the important factor. Classification of Laws:
- Laws properly so- called: have all three imp elements
- Laws improperly so- called: one of the constituting elements is absent like laws without sanction, or social laws,
- Morality: Exists other than the above two. International Law is not a law, but rather it is international morality, or positive morality (as in, it is written down). There are no sanctions (not legally bound), no sovereign, no command - so it is not a law but just positive morality. You have agreed to certain conditions written down that will dictate how you will conduct yourself. (First two are proper laws, third is not. So, international law is basically stupid) From classical Analytical Legal Positivism to Modern ALP.
- Separation thesis (law and morals)
- Pedigree thesis (conditions of validity of law- manner, form, source)
- Discretion thesis (judges make the law) According to the pedigree thesis one would look at a manner, form and source of the law. an example would be delegated legislations that are made up by a person/ tribunal with delegated power. the discretion enjoyed by the judge is very high and ultimate as the court while deciding a case they come up with a new rule and this can be seen in the judges as a company.
Hans Kelsen -
He believes that NLS confuses law with morality I.e they call morality as law while deriving rights from nature. and ALP confuses law with fact he also derives from Hume while criticising ALP's thought process. ALP assumes all premises as is, but concludes ought. this is a conclusion which cannot be reached with the current premises and therefore is a fallacy. Kelsen's 'Pure Theory of Law' law is a pure science. he states that social sciences are not useful to study law or form law such as psychology, history etc. this 'isolation of law' is further sustained when he says the Normative Jurisprudence and Sociology of law go hand in hand. Normative
other. Hart comes up with a solution that there are secondary rules which solve this problem and give authority to the rules in general. (i) uncertainty solved by rule of recognition (ii) static solved by rule of change (amendment) (iii) inefficient solved by rule of adjudication Internal law is also categorised as critical reflective recognition and this secondary rule of recognition is the most important in nature. It is the rule of recognition which is what provides validity of law. this is the most important aspect of the secondary rule for Hart. Hart says that every different legal system will have a different rule of recognition. There is a criticism of rule of recognition. if the officers have a different contention of law, then it will not be accepted, this is the major line of thought in tribal jurisprudence. For Hart, the judges have a role to play regarding interpretation of the open texture of law in which the 'closed core' is what is interpreted as it is but when that closed core is questioned then the judges have a role to play.
SOCIOLOGICAL SCHOOL
Developed mainly in late 19th and early 20th century with Auguste Comte (the father of sociology) Reject the (positivist) idea that there is a value free explanation of law Sociological Jurisprudence is not Sociology of Law Sociological Jurisprudence Sociology of Law Meta narratives Descriptive Why does law even exist material institutions (what/why they do what they do) Ought Is
Sociological school employs these concepts to explain the nature and operation of law in society:
- Social Structure Social institutions you have created yourself for a specific reason. Ex: legal, cultural, political, economic. They interact in variety of ways
- Social Stratification Some social institution might be more powerful than another - Imbalance in exercise of power. Includes class conflict, race, sex discrimination. Law comes in and tells you how to reduce imbalance
- Social function These institutions and groups may be analysed in terms of their particular social function. - like exploring the function of church in Serbia What is law’s function? Does it solve conflicts between people or more? Ex: progress, solidarity, sustenance Darwin’s survival of the fittest - function of law is to survive
Roscoe Pound -
Leading proponent of Sociological Jurisprudence Work was a reaction to ALP Had a pure science background (he liked classification) which affected his sociological thinking He says law is only a means. The end is for law to be applied with social engineering in mind. So, the ‘end' is also a social phenomenon Social psychologists are important to this school of law. People who analyse people in society and what would work for them. Like in India, normal sanctions don’t actually work. What work are religious sanctions. For instance they will spit everywhere even if there is a fine but won’t spit if you put a picture of God on the wall. So for Indians, what law should look like should be based on what works for them. His understanding of law and how law functions in society is very important. Said ALP fails to understand law in text and law in action. Validity is more important to them but doesn’t take into account what happens to law on the ground, in working. They reduce humans to a nullity but still try to regulate. They don’t care how we actually want to be regulated Ex: Ministry of Finance - its functions overlap between the two
When interests conflict, they may be weighed against each other but only on the same plane. Meaning that an individual interest cannot be weighed against a public interest. Having categorised these interests recognised by the law, Pound proceeds to examine the various legal means (including the concept of rights and duties) by which they are secured. How do we know if some new interests of ours quality to be recognised as these given claims? We have certain jural postulates of civilisation which is a reference with which these new interests can be tested. Juris Postulates: (https://blog.ipleaders.in/all-about-social-engineering/) Consist of assumptions which exists in a civilised society:
- No internal aggression others will commit no intentional aggression upon them nobody is going to hurt you for no reason
- Beneficial control over what people acquire under the existing social and economic order they may control for beneficial purposes what they have protection of property, including property that you have created and property that you have acquired
- Good faith in dealings
- Due care not to injure
- Control over dangerous activities Criticism : Pound was heavily influenced by his environment, America. So, he talks about a very westernised society. Not relevant to, suppose, Indian society in the Sabrimala Case. Progression of Sociological School: Sociological School gets critiqued by -
- Habermas - The tension between legal sociology and philosophy of law is a tension which is one between facticity and validity. “Law’s facticity is the character as a functioning system, ultimately coercively guaranteed. To understand this facticity is to understand social or political power
working through law. Law’s validity however,.... is a matter of its normative character, its nature as a coherent system of meaning, as perspective ideas and values. Validity lies ultimately in law’s capacity to make claims supported by reason, in a discourse that aims at and depends on agreement between citizens.” (R. Cotterrell) Seeing law in this way is to acknowledge that the system must be ‘socially effective’ and ‘ethically justified’.
- Roberto Unger - Each society reveals through its law the innermost secrets of the manner in which it holds men together. 3 types of laws (i) Customary Law: any recurring mode of interaction among individuals and groups along with reciprocal expectations of conduct that ought to be satisfied (ii) Bureaucratic or regulatory Law: Law deliberately imposed by the government (iii) The legal order or legal system: committed to be general and autonomous as well as public and positive His study of legal order is directed towards showing why citizens of liberal society find it both necessary to struggle for the rule of law and impossible to achieve it. Why did Unger say what he said? Influences by American Realism, he was strictly opposed to Legal Formalism and instead relied on Legal Realism
Roberto Unger -
Group Pluralism Each society has various groups and each thinks different things are important to follow/ realise. Difference/ Multiplicity of opinions make it hard to reach end of justice (only formal justice) We might agree to have rule of law but can’t achieve it due to group pluralism because different perspectives lead to difference ideas on how to achieve Rule of Law. Unger says that we must use complex lens to understand needs to achieve liberty/ justice Can a positivist view where everyone believes in Rule of Law be enough - because the court will define rule of law anyway Unger says from both social + realist perspectives. Since he was inspired by American Realism, he would question tule of skepticism (inability to predict outcome of cause)
