Category: Law School

• American Realism – Law is not what is written in statutes and it depends on how courts choose to interpret them.

Oliver Wendell Holmes

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

Rule of Judiciary

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

Law from viewpoint of the Bad Man

• Holmes saw law as set of predictions.
• “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
• He proposed the thesis of a ‘bad man’ who tests law for him it doesn’t matter what the law is but what the particular court will decide in his case.
• “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Karl Llewellyn

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

The Grand Style

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

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Law cannot be understood in isolation to culture of a society. Different societies with different culture can have different meanings of law.

• In the Anglo-American legal culture, power to make law does not lie with physical force but with moral authority.
• The characteristic that makes people obey law is its integrity. People will obey even an unjust and unfair law as long as it has integrity as a whole. There are two principles of political integrity:

o   Legislative principle: Legislature should try to make law consistent and morally coherent with the principles established within the legal system.
o   Adjudicative principle: Judiciary should also make an attempt to view the law as coherent as far as possible by interpreting rules and statues in  a manner consistent with the previous regime.

Dworkin on Principles

• As per Dworkin, Law consist of rules as well as principles.
• When there is no rule judges may resort to principles already imbedded in the legal system.
• Dworkin argued that judges must always use principle in hard cases and not use policy decisions.

o   Policy does not require consistent decisions.
o   Principle requires consistent decisions.

• Dworkin argues that if judges do not make consistent decisions then that will undermine the faith of the individuals in the judiciary.
• Principle does not automatically answer the legal question and they may be even contradicted by an official rule. The judge must consider the relevant principle or rule while making a decision.
• Dworkin assumes a fictitious judge, Hercules, who will go through all the rules and the principles till he gets an answer to the problem. He assumes that every question can be answered from within the existing set of rules and principles.
• Judges could make mistake but the fact that they may err does not imply that there is no right answer to the problem within the legal system.
• A good legal system endeavours to reduce the overall number of mistakes.
• Judges could also import morality while making a decision but the morality has to be of the system and not that of the judge.

Dworkin on Law

• Dworkin rejected theories providing a universal description of law.
• He considered that each community has its own understanding of law and therefore any attempt to universalize the definition of law is futile.
• He identified the following characteristics of his Anglo American culture:-

o   Law consists of rights and responsibilities of citizens.
o   Political decisions of the ‘right sort’ are the source of rights and responsibilities. These decisions include the constitution, legislation and judicial decision.
o   State’s coercive acts could only be justified to enforce the rights and responsibilities established by past political acts.

Dworkin on Use of Force

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

Dworkin on Interpretation

• Dworkin’s concept of integrity of law demanded that laws be interpreted in a manner that they remain consistent to earlier established rules and principles.
• In hard cases, Hart stated that judges act as deputy of legislature and it is here that Dworkin disagreed.
• Dworkin expect a judge to not legislate in hard cases but rather gather a solution from the existing set of rules and principles to maintain integrity and consistency.
• He  identified three stages in the process of interpretation:-

o   Pre-interpretive stage

• Interpreter (Judge) identifies relevant material such as statutory provisions and case law

o   Interpretive stage

• Interpreter determine the reason for treating the legal document as relevant to the case
• Eg:- Application of Copyrights Act in a dispute related to copyright

o   Post-interpretive stage

• At this stage, interpreter must identify what will better serve the justification he accepts at the interpretive stage
• The justification is that the system as a whole promotes integrity of the law.

Dworkin on Law as Chain Novel

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

Dworkin on Law & Morality

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

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Norms and Facts

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

Pure Theory of Law

• Kelsen calls his theory as ‘pure theory of law’ as it attempts to distinguish between law and what is not strictly law
• His theory distinguishes law from facts and morals
• The main ingredients of Kelsen’s pure theory are derived from Kant’s theory:-

o   the world of things (noumena) and the world of ideas (phenomena);
o   what ‘is’ (sein) and what ‘ought’ to be done or not done (sollen).

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

Grundnorm

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

Kelsen on Revolution

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

Hart v. Kelsen

• Kelsen says that the normativity of law is based on a grundnorm, whose validity we accept through tacit or explicit consent and by doing so, we to all the consequent norms of the legal system.
• Hart on the other hand says that normativity of law is based in social practise. To know what we ought to do, we need to use the fundamental rule of recognition which is nothing but a set of legal criteria that validates a law.
• Hart’s theory is meant as an analytical description of actual practices, while Kelsen sought a theory purified even of sociological observation.
• Hart’s view of the normative reduced it to a combination of certain types of social facts, while Kelsen resisted any reduction of “normative’ to facts.
• Hart’s theory tried to track and explain actual social practices, Kelsen’s theory tended to be more abstract-appropriate for what purported to be a “pure theory”.
• Hart’s analysis builds on close attention to actual practices and linguistic usage. On the other side, Kelsen is offering a kind of logical analysis of law and of normative thinking in general.

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Background Facts:

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

Hart’s Position

• Hart being a positivist criticized the judgment for disregarding the written law.
• Hart argued that the law remains law even if it does not meet the demands of external moral criteria.
• Hart said ‘Law is not morality; do not let it supplant morality’.
• Hart said that a law being inherently evil and how one ought to react to the law are two separate issues and merely because a law‘s foundation is on evil it cannot be said to be law.
• Hart also stated that if wicked/immoral laws are considered valid that does not create any problem when a choice between two evils has to be made in extreme circumstances.
• Hart said that a legal system might show some conformity with justice or morality but does that does not follow that a rule of recognition a criterion of legal validity ought to include morality in it.
• Law and morality are not interchangeable terms and law cannot be strike down merely if it’s devoid of any moral content.

Fuller’s Position

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

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Background Facts:

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

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

• Freedom of choice
• Privacy of morality

Devlin’s position

• Law without morality destroys freedom of conscience and is the paved road to tyranny.
• He talked about society’s ‘moral fabric’ which the society holds together and if the criminal law does not respect and reinforce society’s morality it will destroy the ‘moral fabric’ leading to the disintegration of society.
• Any category of behaviour that is capable of posing a threat to social cohesion can be governed by morals laws. They are justified as they protect society against the disintegrating effects of actions that undermine the morality of a society.
• There is no limit of reach of la and thereby immorality could also be governed by law. (Immorality is what every right-minded person considered immoral)
• Devlin suggested that common morality could be determined from asking ‘what is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right-minded man’.
• Devlin thus made following recommendations:-

o   Privacy should be respected.
o   Law should only intervene when society won’t tolerate certain behaviour.
o   Law should be a minimum standard not a maximum standard.

Hart’s position

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

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Hart primarily deals with the following:-

o   Law and coercion

o   Law and morality

o   Nature of rules (Primary & Secondary)

• He criticizes Austin’s command theory for being an external viewed imperative model of law disregarding the internal element of obedience
• He also criticizes Austin’s theory for limiting laws to consist of commands backed by sanction. He talks about power conferring laws such as laws of the contract which do not fit in Austin’s theory.
• He makes a case that people do not obey law because of threat of sanction but because of people’s acceptance of it being binding in nature. Eg:- A gunman who robs a banker by giving him threat of shooting in case of noncompliance is not making law despite it being a command backed by sanction. It is in such situation the Austin’s theory fails.

Rules and Obligations

• Hart’s theory is different from that of Austin as it distinguishes the different kind of obligations.
• He uses linguistic phrases ‘under an obligation’ and being obliged to explain the difference. In the gunman example, when the gunman asks banker to give away the money to the gunman, the banker is not under an obligation to give the money but is being obliged to do so.
• Similarly, if one jumps red light even if knowing the fact that he won’t be fined the obligation to stop won’t go away despite the absence of sanction and the person will remain under an obligation to follow traffic rules. (The obligation to follow rules persists even in absence of sanction)
• Thus, in Hart’s model rules are followed not because of a sanction but because of society’s acceptance of the rule being binding.
• The idea of a rule implies an obligation.
• Hart distinguished rules of law other miscellaneous rules such as rules of grammar and rules of social etiquette. Eg: People attending church on Sunday is a habit and cannot be considered as a law.
• He considers rules which generate pressure but short fall of physical sanctions as moral obligations but if they do exert physical sanctions, they can be considered primitive or rudimentary kind of law imposing legal obligations.

External and internal aspects

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

Primary and secondary rules of obligation

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

Rule of Recognition

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

• Rule of recognition can change through peaceful or violent means.
• Change in rule of recognition need not necessarily affect primary rules. Eg:- When India gained independence from Britain, British laws found to be consistent with constitution remained in power.

Hart on International Law

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

Criticism of Austin

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

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HLA Hart – Positivism

Hart Devlin Debate

Hart Fuller Debate

Kelsen – Normative Theory (Grundnorm)

Ronald Dworkin

Legal Realism

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

– American Realism – Oliver Wendell Holmes, Karl Llewellyn
– Scandinavian Realism – Karl Olivercrona, Alf Ross

Thomas Aquinas

Roscoe Pound

Justice
– John Rawls’ Theory of Justice
– Libertarian View of Justice – Robert Nozick

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