Law Guide

Legal Positivism

Comparison	Bentham	Austin
Introduction	· Classical positivism: Bentham – Austin · Positivist theories may briefly be described as: ü Concentrate upon a description of law as it is in a given time n place ü By reference to formal, rather than to moral or ethical ü Do not necessarily deny the possibility or relevance of moral analysis ü Deny the criteria deriving from moral ü Laws are commands of human beings ü A clear distinction between ‘ought’ and ‘is’ · Normally it contravenes with the classical natural law theories as NL treats law as a prescription, deriving its ultimate authority from purposive morality · Law is the command of a sovereign backed by sanction · Positivists opine the most effective method of analyzing n understanding law n the legal system involves suspending moral judgments until it established what it is
Criticism to Natural Law	· Bentham ‘scientific jurisprudence’ distinguish between the descriptive n the normative · Expositorial jurisprudence: ‘what the law is’, legal positivism, analysis the law in terms of what it means (descriptive, analytical) · Censorial jurisprudence: ‘what the law ought to be’, natural law, study a law n decide whether it meets external moral standards (normative) · Bentham: natural rights r ‘nonsense on stilts’	· Austin: the existence of law is one thing… its merit n demerit is another. Whether it be or be not is one enquiry, whether it be or not be conformable as an assumed standard, is different enquiry · Analytical jurisprudence – analysis of existing legal institutions, not regard for ethical content
Key contributions	· Law free of moral n natural evaluations · Distinguishing law with other forms of command, social demands, rules (practitioners jurisprudence, jurisprudence for the lawyers) · Started analytical jurisprudence – Hart etc. (if it is a command backed by sanction, it is law)

Bentham

Law	· Bentham: law may be defined as an – ü Assemblage of signs ü Declarative of a volition ü Conceived or adopted by the sovereign in a state ü Concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question r or r supposed to be subject to his power · Bentham: sovereign – ü relationship of obedience by a sovereign, mean any person or assemblage of person to whose will a whole political community r supposed to be in a disposition to pay obedience n that in preference to the will of any other person · The object of laws: ü promote greatest happiness in the greatest number of people ü measures the rights or wrongs of an act · Laws include all kinds of law e.g. legislators, judge, made law, administrative laws, declarations etc. · 4 main elements: ü command – imperative will of the sovereign ü conceived/ adopted – legislation, custom etc. ü sovereignty – powers of subjection ü sanction – obedience for anticipated acts · The task of the legislator is to study the law so as to recognize n realize ‘the good’ · Legislation should have the following goals: ü To provide subsistence, or abundance ü To provide security ü To diminish inequalities
Sovereign	· Ultimate source of authority · Any person or assemblage of persons to whose will a whole political community r supposed to be in a disposition to pay obedience in preference to any other will · Sovereign binds his successors
Notion of Sanction	· The motivation of a sovereign’s law-making power – a motivation to act or abstain from acting to aim or producing certain result · The sovereign rule is obeyed, his order command or prohibition is backed by sanction (pain-pleasure) · Nature has placed mankind under the governance of 2 sovereign masters, pain & pleasure · Bentham acknowledge 4 types of sanctions: ü physical – sanction based on nature ü political – sanction enforced through the use of laws; penalties, criminal punishments ü moral or social – social boycott, shun by society ü religious – related to God’s punishment or wrath · But for purpose of legal obligation, it is political sanction that they were referring to, it is imposed by the sovereign · Sanctions cover both positive n negative sanction (pain & reward) · A legislator must take all sanctions into account before creating/ revising/ amending the law
Bentham’s Utilitarianism	· The true goal of society ought to be the achievement of ‘the greatest happiness of the greatest number’ – a concept derived from his interpretation of the ‘principle of utility’ · Utility is seen as the property or tendency of object to produce benefit, good or happiness, or to prevent mischief, pain or evil · Pleasure is to be equated with good, pain with evil · No action is wrong in itself. Its evil arises from its consequences · Thus, there can be no justification in prohibiting an act which is unlikely to produce harm · The punishment of an offender should aim at an increase in the sum of the community’s happiness · Punishment of the individual will help to prevent a greater general pain among the community · Extravagant punishment is wasteful n should be rejected. Nevertheless, punishment should act as a deterrent
Objections to Bentham’s utilitarianism	· It is impossible to make a ‘quantitative evaluation’ of pain or happiness, no standards of reference · Men r not always motivated solely by pleasure or pain · The relationship between individual n communal happiness is not as direct as he imagined it to be · Some pleasant things r not good or that some bad things r desired
Utilitarianism as a species of natural law	· It is concerned with ultimate values, as is natural law. It has an aura of universal n immutable values · They r based on ‘normative systems with a strong legal slant’ · It is a comprehensive philosophy which embodies a uniform method of analysis, as is the case in natural law

Austin

Law	· Austin: sovereign – ü exists where bulk of political society r in the habit of obedience to a determinate common superior ü common superior is not habitually obedient to a determinate human superior · Under the term law … we must include a judicial order a military or any other kind of executive order or even the most trivial n momentary order of the momentary kind so it be not illegal. The mandates of the master, the father, the husband… · Stems from the commands of the sovereign · 2 main types: ü laws properly so-called, include divine laws n human laws – positive law ü laws not properly so-called i.e. by analogy or metaphor – positive morality, n not sanction by the state · Human laws – the main focus of Austin’s theory · Law is the command of the sovereign · There is no necessary connection between law n morals · A command requires to be supported by a sanction · That the command n the sanction emanate from a sovereign
Sovereign	· Sovereign: ü the common superior must be ‘determinate’ ü all the persons who compose it r determined n assignable ü the society must be in the habit of obedience ü habit of obedience (a continuous and long period) by a substantial number of members of society ü habit of obedience to determinate superior authority = a political society ü the determinate superior authority is not subordinate to any higher political authority, n the its power is not subject to legal limitation (absolute powers) · Three characteristics of sovereignty ü Is illimitable ü Is indivisible ü Is continious · Sovereign can be individual (king, dictator) or body (parliament) · Constitutional law is the highest law of the land, a mere positive morality, thus not bind the sovereign · A sovereign not binds his successors · The legislator is not bound by the law he makes, he gives orders for others n as such he cannot order himself · 3 main characteristics of Austin’s Sovereign: ü unlimited powers – must be habitually obeyed by the bulk of society; not habitually obey anyone else; not bind itself by law ü continuous – institution of the sovereign continues, n it is defined in a complex of constitutional rules ü indivisible – not possible to obey to more than one sovereign; rare cases can have joint sovereign · Criticism to Austin’s sovereign theory ü fails to distinguish legal n political sovereignty ü no cover situations involving changes in power e.g. via elections ü fails to elaborate on habitual obedience especially in regards to the electrote i.e. how can a body of equals be superior to itself
Command	· Command of the sovereign: ü express/ intimate a wish for another to do or forbear from an act ü threat or harm (evil) if not comply ü that expression or intimation on that wish by words or other signs · Commands: can originate from other bodies to which the sovereign bestows the power to make law e.g. the courts, administrations, international organisations etc. · The sovereign permits the commands · The recognition on those ‘delegated’ commands is the recognition of implied command of the sovereign · Whenever a duty lies, a command has been signified; n wherever a command is signified, a duty is imposed
Notion of Sanction	· Sanction: power n purpose of inflicting eventual evil, n not the power n the purpose of imparting eventual good, which gives to the expression of a wish the name of a command · Sanction is backed by pain entirely, n is to impose evil or harm as a result of non-compliance with commands · A command is not law without sanctions · Fear of sanction alone induces man to obey the law · Must punish party who break the law · Obedience is secured through a systematic use of sanctions · Criticism of Hart: ü no reflect the true nature n objective of the law, as Austin places unduly important emphasis of the fear of sanctions ü only relevant in criminal law, but not applicable in others, e.g. law of wills n contracts ü confusion between obligation (a duty) n being obliged (forced by sanctions) ü law can be obeyed due to other reasons rather than mere sanction, e.g. moral guide to a man’s behavior ü Austin ignored individual rights that r constitutionally guaranteed
View of the judiciary (Austin)	· Favoured judicial activism (judicial power n creativity), subject to 3 conditions: ü when judges exceed their powers, their decisions must be subject to judicial review ü judges must look at the intention of the legislature when interpreting the law ü the decision of the judge has to be consistent when judicial decision on a previous similar fact situation · Judge-made law is not the commands of the sovereign, as it equivalents to that of a delegated legislator which commands made on behalf on the sovereign · Introduces the concept of ‘tacit command’
Application of Theory in Malaysia	· Sovereign/ Constitutional rulers: ü concept of sovereignty, ‘daulat’ ü not limited to politics, encompasses cultural n religious aspects ü the malay ruler enjoys sovereignty, with rights n priveleges, not be questioned n absolute loyalty from subjects ü m’sia although constitutional rulers, they still has certain privileges guaranteed under Federal n State Constitutions · Federalism: ü m’sia power sharing between federal n state govts. – Chapter VI n 9^th Schedule of the Federal Constitution, delimitations of Federal n State Powers · Written Constitutions: ü Art 4(1) of Federal Constitution – supreme law of m’sia ü Limitations on Parliamentary power to amend the Federal Constitution, Art 149 & 150 (6A) ü Thus, Constitution is the highest, against Austin as he regarded the constitution as positive morality that not have the force of law ü Division of powers between federal n state govts – divisible sovereignty. Thus not follow Austin’s sovereignty
Attacks and Criticisms	· Command of the sovereign is not the only reason for a law to be valid: ü Feelings of natural justice ü Wishes of the people n is accepted by the community ü Law should be seen in terms of its functions, not its form only ü Austin ignores custom ü No sanction behind a rule of International Law, it is neither commands of the sovereign, nor backed by any sanction Criticism of Hart · Laws r not always backed by sanctions: ü Some laws do not force people to act in a certain way, only lay down that certain transactions r drawn up ü Power-conferring rules, no impose duties or obligations ü Nullity is neither an evil nor threat to a person for non-compliance with some requirements · Austin confused between the idea of obligation (duty) n being obliged (forced by sanction) · Law is rather obeyed because of internal reasons, even if there is no force · Breach of duty does result in the application of a sanction, but it is also a justification for the application of a sanction. Thus, duty is prior to sanction · Legislator is bound by his own law · Criticizes Austin’s sovereignty, as does not account for the persistence of laws, hard to apply it to a modern democratic state · Bryce says Austin may have confused between the two types of sovereign: De facto sovereign (body which receives habitual obedience) n De facto sovereign (law making body)

Hans Kelsen: Pure Theory of Law

Basic principles	· Kelsen is a modern positivist · Created the ‘Pure Theory of Law’ based on 5 precepts:- ü Law as it is n not as it ought to be – focus on the letter rathan than the spirit of the law ü Scientific theories of law must be distinguished from the law itself- o The law: collection of rules o The theory: arranges legal rules into an organized system ü Legal theories – uniform, universal application n perpetual in nature ü Legal theories must be free from ethical, political, moral, sociological n religious considerations – real meaning of the pure theory of law ü Legal knowledge – knowledge of the legal norms · The pure theory of law thus is not influenced by external sources, not determine the fairness of the law · The pure theory of law is a science of law i.e. jurisprudence · The pure theory of law is Universalist n not confined to any particular legal system, n is consistent n applicable to any legal system
Definition of law	· A law is a depsychologicalized command – not imply a will in the psychological sense · Is a rule expressing the fact that somebody ought to act in a certain way – not imply that anybody really wants that person to act in that ways · Not the will n command of the people – both majority n minority not perfect in making it · Law is a system of coercion imposing norms which r laid down by human acts in accordance with a constitution the validity of which is pre-supposed if it is on the whole efficacious · Law is made up of statements that take the form that if A happens, then X should follow: If so and so, then so and so · Normative oughts v Legal oughts ü Legal ought – created by a legislative act of will, addressed to enforcement officers, n prescribes actions to be taken in breaches ü Normative ought – hierarchy of legal ought ü Moral ought – not enforceability, not created by a legislative act or will
Law & Sanction	· Law is a specific technique of social control, a systematic use of coercion n sanctions by state officials n agents · Law acts as a social control in 2 ways: ü Imposes duties upon citizens ü Confers powers upon officials to apply sanctions · Moral n religious factors r the important elements in a coercive sanction · Sanctions r to ensure compliance. It depends on the efficacy of the legal system as a whole · Operation of sanction dependent on other rules of law e.g. rules governing detention n trial · Approach to sanction is not like Austin, Kelsen attaches sanction with delict n not with laws that r norms · If non-conformity to a norm results in a delict, then the norm is condition for the application of the sanction · The commission of a delict by a citizen activates the norm which orders the official to do something · Sanctions r coercive orders to overcome delicts
Law as norms	· Pure Theory defines the law as an aggregate or system of norms, as a normative order · Every legal activity can be traced back to a norm · Norms – rules which state that something ought to be done, although actually it may not be done · Norms r variable in form, include commands, prescriptions, authorizations n permissions · Legal ‘oughts’, include ‘may’, ‘can’ n ‘shall’ · Norms set a standard value, n r not a moral ought but a legal ought · Norms – directed to officials that enforce laws · Legal norm – man ought to behave under certain conditions in a certain way, means that this behavior is prescribed or permitted or authorized · Such a norm may be the meaning of an act of will of one individual intentionally directed at the behavior of another individual · The reason we behave in conformity with a definite norm is because it ought to be (‘ought’ statement). The reason of the validity of a norm can never be a fact, it follows a statement that something ought to be · Jurisprudence as a normative science. If A is, then B ought to be B. Eg: if a person commits a murder, he ought be hanged
Functions of norms	· Function as a scheme of interpretation i.e. a standard to determine whether an individual’s conduct legal or illegal · E.g. norm – not wearing hot n sexy in Parliament
Hierarchy of norms	· A legal system is a system of norms that r inter-linked with each other · They r arranged in a hierarchy based on their scope n application · Highest norms is the most general n abstract; while the lowest norms is the most concrete n specific · 2 hierarchies exist: a) Application hierarchy b) Hierarchy of norms
The Grundnorm	· Constitutes the highest n most basic norms in the chain of validity · All its norms trace validity from a single source · Not rest upon n dependent on other norms · Extra-legal in nature · Validity of Grundnorm is presumed, it is valid as it is presupposed to be valid · Every legal system has a grundnorm, usually it is its constitution · Can only be changed by political revolution · Important characteristics: ü Not created in a legal procedure by a legislative organ ü Presupposed to be valid ü A ‘mental construct’ – an idea to help interpret the structure of a legal system ü All norms r derived from ü If rendered valid, then all other norms will be invalid · Similar to Austin’s ‘habitual obedience’ approach to his sovereign · Grundnorm should secure itself a minimum of effectiveness. There must not be a total disregard of the grundnorm but there need not be a universal adherence to it
Validity of Norms	· Excluded morality from the question of legal validity · For a norm to be valid, 2 main conditions must be fulfilled: ü A norm must be part of a system of norms/ authorized by another norm ü The system must be efficacious · 4 important aspects: ü A norm exists with a binding force ü A particular norm is identifiable as part of a legal order that is efficacious ü A norm is conditioned by another higher norm in the hierarchy ü A justified n enforceable norm must be in conformity with the Grundnorm · Not all norms must be followed to show the efficacy of the legal order · Efficacy of the legal order is a necessary condition for validity – efficacy is not validity itself · Validity n efficacy r 2 distinct qualities: ü Efficacy determined by causation ü Validity determined by imputation ü A legal order not lose its validity just because a single norm ceases to be effective; or a norm is only intermittently effective · Similar to Hart’s rule of recognition which gives the other laws their legal effect · Grundnorm validates all other norms · Rejects Austin that law is a command backed by a sanction. (i) it introduces a psychological element into a theory of law, which should be pure; (ii) the validity of a rule has nothing to do with its sanctions
The principle of Effectiveness	· Validity of norms is by virtue of another norm imparting validity to it · Thus, a norm is valid before it is effective, as is the case with a new statute before it has been applied · Yet, the validity of each norm depends on the effectiveness of the legal order as a whole · The efficacy of the whole legal order is a necessary legal condition for the validity of every single norm of the order · Norms r valid however on the condition that the total order is efficacious · Effectiveness of the order as a whole is a condition, not a reason for the validity of the grundnorm n of any individual norm
Validity of Grundnorm	· Although its validity is presupposed, it must have a minimum of effectiveness to be valid · If it loses its minimum effectiveness, then no longer forms the basis of the legal system · Effectiveness of the grundnorm is a factor that determines its validity · It may be seen as outside the legal system – no dependent on positive legal force is presupposed; n no made via a legislative act or will
The Gundnorm in Revolutionary Scenarios	· A grundnorm can be replaced by another grundnorm in a revolution in law · Revolution in law – any change in the grundnorm that is not authorized by the original grundnorm, n usually by forceful means rather than peaceful consti change · When a group of persons succeed in a coup, the older order ceases n the new order is efficacious n becomes the new valid legal order. Then their acts may or may not be valid under this new legal order · However, if the revolution fails, their actions would not create law but r construed as illegal under the old legal order · The change of the Grundnorm – changes the entire system of norms, as validity depends on efficacy. Loss of efficacy equals to loss of validity
Other aspects	· Judicial function – judges interpret n apply the norms but not create a norm by himself (strict separation of powers) · International law – is valid as it has coercion n sanction, n has all essential elements on a legal order · Justice – an irrational ideal which a quality of the application rather than the content of a positive legal order
Assessment and criticism	· His theory is an acute exercise of logic, usually applied in revolutionary situations · Suitable where written consti is basic law · A good indicator of the hierarchy of laws; but, it lack of detailed explanation on the grundnorm, as it is an abstract n shaky foundation for the legal system · He places too much emphasis on the form rather than the content of the law · He places over emphasizes the role of sanctions n minimizes the other functions of law, as law also has a regulatory function · It dismisses all other approaches to legal systems, e.g. history, politics, religion, morality, psychological elements, which is impossible to exclude social n political factors · The concept of effectiveness can only be measured in terms of ‘socio-logical factors which he so vehemently excluded from his theory of law’ · He gave no criterion to measure the minimum of effectiveness · It considers justice as an irrational ideal

Differences between Austin and Kelsen

Austin	Kelsen
· All laws r in the form of commands	· Every legal activity is to be traced back to a norm. A norm may have the character of: ü Command or prescription ü Authorization or permission
· Laws are set by men as political superior to political inferior	· Grundnorm could have any content, whether supremacy of God, dictator, Parliament or a Constitution
· Law is a command backed by sanction	· Rejects the idea of command, because it introduces a psychological element into the pure theory of law
· Sanction which imparts validity to law is something outside the law, n imposed from above	· There r two arguments: ü Operation of the sanction itself depends on the operation of other rules ü Validity of rule has nothing to do with sanction. Each of the rule comprising sanction, depends on some other rule, which in turn rests on another
· Laws r general commands	· A rule is law if it is found somewhere in the hierarchy of norms. The rules relating to contract or will r laws if they r validated by a norm in the pyramid of norms
· All laws can be traced back to the sovereign, who issues commands either directly or through subordinates.	· All norms can be traced back to the Grundnorm. But all norms r related to each other as superior or inferior in a hierarchy or norms
· Sovereignty is accepted by the bulk of society	· Grundnorm must have ‘minimum effectiveness’
· Sovereignty is indivisible n illimitable	· In every legal system, there is generally one Grundnorm, which is supreme n uncontradited

Sociological Positivism: H.L.A. Hart

Introduction	· A neo-positivist, adopts a sociological approach to positive law · Considers morality as an important consideration that can influence the law · Law as the acceptance by society, as a system of social rules · Laws r still valid even if they don’t have morality · His book ‘The Concept of Law’, was termed as an ‘essay in analytical jurisprudence’ · Main aim of the book is to explain the general framework of legal reasoning in society’s context, but no offer nay definitions of what the law is
Hart’s attack on Austin’s Command Theory	· Emphasis on the element of sanction: ü Austin’s approach to sanction is like an analogy of a bad guy who points his gun at his victim to force obeyance on his will ü Attacks his concept of sovereignty n powers of the sovereign to issue commands n impose sanctions ü Obeyance of the law is only via fear · Differences between obligation n being obliged ü Gunman analogy – the victim feels or is made to feel an obligation to follow the gunman’s wishes but has not feeling of being obliged to do so · The habit of obedience ü The need for a habit of obedience to a sovereign will not affect the continuity of the law or obedience to the laws made by the new sovereign ü New sovereigns can easily supplant their predecessors to continue issuing commands · Lack of a concept of rules ü Sovereignty should be based on rules rather than obedience ü E.g. succession of new sovereigns is determined via rules rather than command/ sanction
The two types of rules	· Every legal system is the combination of 2 types of rules: · Primary rules: ü Rules that impose legal duties ü Their force depends on the majority acceptance ü Include criminal laws, law of Tort n payment of income tax ü Defects of primitive legal system: uncertainty; static; inefficient ü Concerned with the actions or individuals, to do or not to do · If the only means of social control is the attitude of the group towards behavior that it will accept as permissible, then the society lives by primary rules of obligation alone · Without secondary rules, defects will be showed: ü No means of resolving the uncertainty of primary rules ü No means of altering the rules, n the rules would be static ü No means of settling a dispute as to whether a rule has been broken ü No one with authority to impose punishments for breaches of the rules · Secondary rules: ü Rules that confer powers ü Function is to cure defects of primary rules ü The instances would be creation of contracts, marriage laws, wills n formation of companies ü Concerned with the primary rules in that they lay down the ways in which primary rules may be introduced, varied n abandoned · Got 3 types of secondary rules (i) Rules of recognition ü To remedy the defect of uncertainty ü Is to determine criteria governing the validity of the rules of a legal system ü May vary according to a state’s legal system ü E.g. in absolute monarchies, it is any royal decrees that have legal effect ü M’sia context: from 2 sources, consti n laws enacted by Parliament; judge-made laws (ii) Rules of change ü To remedy the defect that the rules r static ü 2 main types: the function of rules of change to amend primary rules to suit them with the changing times; to allow an individual to amend personally ü May specific the persons who r to have power to alter the law, n lay down the procedure to be followed in order to do so ü Facilitate legislative n judicial changes to both primary n secondary rules (iii) Rules of adjudication ü To remedy the defect by allowing any individual to find out whether or not a primary rule has been broken ü Covers rules that identify individuals n bodies that have judicial powers ü Defines the procedures of adjudication ü Includes rules that give power to judicial official to punish legal offenders – rules of sanction
Rules of Recognition	· People have a way of finding out what the primary law r, thus there is a rule of recognition · Rule of recognition establishes the supreme source of authority for legal validity, a rule that may have subsidiary rules but which lays down the order of priority between them · It is seldom in practice, as court seldom make statement about how the rule works, e.g. when they say that Acts orf Parliament override other sources of law · When we say that a rule is valid within any particular system, then it complies with the rules of recognition of that system · If a rule is not obeyed over a long period, it should cease to be a rule. The validity of a rule, n whether it is obeyed, r two separate matters · Purported bye-law – Minister of Law – Provisions of statute – passed by Parliament n signed by the Queen · Thus, there is no rule of recognition to test the validity of the rule that what the Queen in Parliament enacts is law, it is called as the ultimate rule of recognition · If we says what the Queen enacts is law, then is made from an internal point of view (viewpoint of people inside the legal system); unlike we say that in England the rule that what The Queen enacts is law, it will be external point of view · No question can be arise as to the validity of the rule of recognition itself, it is simply accepted within the system as being appropriate for deciding what is n what is not a valid one. E.g. we can never demonstrate the standard metre bar in Paris is itself correct · Where there is mature primary rules n secondary rules, a statement that a rule ‘exists can be made’, from an external point of view (statement of fact) and internal point of view (implication that the rule complies with the system’s rule of recognition) · It is both law and a fact, we should regard it as being capable of being looked at from two points of view – from an external n internal point of view
Conclusion on what is law	· A modern municipal legal system with its rules n obligations leading to the identification on the general rules on that system · A system of law-making n repeal by the legislation · It is noted that Austin’s command theory only focuses on the primary rules
Internal Aspect of Laws	· Comprises of social habits n social rules · Social habits: ü No element of coercion or sanction ü E.g. going for movies every Saturday · Social rules: ü Element of fault, coercion n sanction ü Liable for criticism ü Efforts made to ensure obedience to that social rule by other members of a person’s society · Differences between habits n rules r important · Obligation to obey the law · It invites criticism n provides justification for that criticism · Means awareness n support for a social rule · It is a legistimate basis of being obliged
External Aspect of Laws	· Social habits that the particular society is not aware but can be observed by outsiders · Comprises of behavior that is prompted by habit but not by social rules · E.g. outsider sees a driver stop when red light, thus he can conclude red light is to stop, n green light is to go · Austin’s command theory only emphasizes on the external aspect of laws, n sanctions not reflect the internal aspect of the law · Idea of obligation: ü Being obliged – based on beliefs, motives n fears, for instance paying fine ü Being under an obligation – used to guide behavior later than force it. The reason a sanction is applied is that there is an obligation, which results from the authority n validity of the rules · Distinguish both external n internal aspects of law: ü Those who obey the law in fear or sanctions (external) ü Those who obey the law because they recognize n voluntarily accept (internal)
Approach to Judicial Discretion	· A combination of primary n secondary rules is not a comprehensive legal system, there exists a penumbra of uncertainty, which gives the law flexibility · Penumbra of uncertainty exists due to 3 main factors: ü Statutory language ü Standard usage of terms in case law n statutes, e.g. reasonable ü Precedent, usage in broadly similar terms · The courts have the discretion to interpret the legislation n create new rules out of them · Judiciary is not limited to merely interpreting the law. Judicial creativity n activism is vital in developing the law · Judicial discretion helps modify the law to suit a case that strike a balance between the concept of certainty n flexibility · The judge may look n take into account moral values n social practices as a valid source of legal authority · Hart is not a hard positivist (criteria must be precisely identifiable), but a soft positivist (sources of law can be found from a wider area, n can include reference to principles or moral values)
Existence of a Legal System	· 2 situations must be satisfied for a society to have a legal system: ü Laws which r valid according to the rules of recognition r in practice obeyed by the bulk of the population ü The relationship of the officials to the secondary rules must be one of acceptance · Thus, private citizens need only obey, while for officials, they must both obey n accept
Breakdown of a Legal System	· It may happen although the officials still accept the secondary rules, the citizens cease to obey the primary ones · This position may be reached in a variety of ways: ü Revolution ü Occupation of enemy power ü Anarchy or banditry · There may be a half-way stage in which the courts continue to function, using the rules of recognition of the old regime, but their orders r not obeyed
Emergence of a Legal System	· First, with a local legislature, judiciary n executive which set up by a state of parent legislature · When the colony achieves independence, the ultimate rule of recognition is no longer the parent legislature · The legal system now has its own, independent, locally-based, ultimate rule of recognition · It may be achieved by the gradual retirement of parent legislature, followed by a final renunciation of legislative power over the colony, or it may be achieved by violence · At the end of road, there will be two independent legal systems

The Hart v Dworkin Debate

· Sequence of debate:

ü Hart’s Concept of Law in 1961

ü Dworkin’s criticism of Hart’s thesis, principally in Law’s Empire, in 1986

ü Hart’s response, 2^nd edition of the Concept of Law in 1994

· Principal difference:

ü Hart – when law provides no answer to a question at issue, when the law is incomplete, judges exercise their discretion in reaching a solution that fills the gap, thereby creating new laws

ü Dworkin – law never runs out, answer always there to be found. Just the judge must apply his mind properly

Criticism of Dworkin to Hart	Hart’s Response
Hart’s descriptive approach fails to take account of the viewpoint of the participant of the legal system considered	· A descriptive legal theorist does not as such himself share the participant’s acceptance of the law in these ways, but he can and should describe such acceptance · Is true that must understand what it is to adopt the internal point of view, n must be able to put himself in the place of the insider, but is no to surrender his descriptive stance
Hart is a hard positivist, as the rule of recognition identifies what is law is confined to ‘plain facts’, which the criteria must be precisely identifiable	· Rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values, thus the doctrine is soft positivist · Plain fact criteria provided by rule of recognition must not be solely matters of pedigree, they may instead be substantive constraints on the content of legislation
Hart fails to accommodate the fact that the purpose of a jurisprudential system is to justify coercion	· Like other forms of positivism, my theory makes no claim to identify the point or purpose of law · Is vain to seek any more specific purpose of law
Hart cannot have it both ways, one is ‘provides reliable public standards of conduct which can be identified with certainty on matters of plain fact without dependence on controversial moral arguments’; n another one is ‘adopt the position of a soft positivist’	· It exaggerates both the degree of certainty n the uncertainty · Although is true that the rule of recognition is to promote the certainty of law, the exclusion of all uncertainty is not a goal where I have ever envisaged · The rule of recognition n particular rules of law may have a debatable ‘penumbra’ of uncertainty · A margin of uncertainty should be tolerated, so that an informed judicial decision can be made when unforeseen case is existed · The underlying question here concerns the degree or extent of uncertainty which a legal system can tolerate if it is to make any significant advance from a decentralized regime of custom-type rules generally reliable n determinate guides to conduct identifiable in advance
Hart’s treatment of social rules is defective	· Accepted the criticisms n made modifications to the account
Hart ignores the existence n significance of another form of legal standard, namely principles Rules function in an all-or-nothing, which conclusively determines the legal result, while legal principles may in favour of a decision, but do not necessarily determine the outcome	· Distinguish principles from the rules: ü Principles r broad, general n unspecific ü Principles provide an explanation or rationale of the rules, by contributing to their justifications · No reason to accept a sharp distinction between legal rules n legal principles. Rules r not always to must determine the outcome · ‘Rule’ should not give the impression that legal systems comprise only all-or-nothing rules · Although not using the terms ‘principles’ in Concept, I have used variable legal standards to specify factors to be taken account in reaching a decision · Rejects Dworkin’s contention that principles find no place in Concept, but admitted that principles r touched upon only in passing
Rule of recognition is said capable to identify legal system, it cannot identify principles. Thus, it must be abandoned Principles can only be recognized through the process of constructive interpretation, but not a mechanically applied rule of recognition	· Pedigree (ultimate source) can provide the means by which principles can be identified · There is nothing incompatible between the admission of principles as part of the law n the doctrine of a rule of recognition
Must at lease prima facie moral grounds for assertion of the existence of legal rights n duties However, Dworkin admits that if the system operates, if its rules r accepted n enforced by officials, then the rules r law notwithstanding the legal system is so evil	· Treats law n morality as being separate · There can be legal rights n duties that have no moral justification whatsoever · Hart agrees that it is still law notwithstanding that it is morally iniquitous
Principles describe rights, policies describe goals. Rights always trump community goals. When 2 policies in conflict, the court can decide which policy to give priority Rules operate in an all or nothing fashion (either valid or not), while principles have a dimension of weight (allows them to be compared) Rules cannot conflict n remain both valid; while principles can be valid n legally binding even if they conlict Impossible to fit principles into a Rule of Recognition	· No principle theory is explained in Rule of Recognition · Rules originate from Rule of Recognition
The assertion of Hart that law as being incomplete with gaps is defective. Hart fails to account for principle n policy which r also part of the law There are no gaps to be filled. The judge only finds that the law is such and such, something is already there. Use of principles/ policies can resolve the problem Hypothetical judge Hercules. Law is a gapless system n Hercules is required to seek consistency n integrity, n to find the right answer. He will find the best answer n there can only be one, the right one. He will also decide on a theory of law n justice which best coheres with the institutional history of his community Discretion may arise where the judge has to make choices between competing arguments (weak discretion), but the discretion must not be based on the judges values, but on the institutional morality or values of the system that exists Endorsing judges to make law is undemocratic n unjust, as only elected representatives have the power to make law It would be unjust for entailing law to be made retrospectively. Litigants unable to assume the legal consequences of their acts to be decided according to the law as it exists at the time	· Rules have an ‘open’ texture, i.e. there r situations where a rules cannot clearly apply, n therefore it calls for judicial discretion · I recognizes that in cases in which no pre-existing law determines the outcome, judges proceed by analogy to ensure the new law is in accordance with principles or underpinning reasons which already having a footing in the existing law · But this does not eliminate the moment for judicial law-making, since judge will have to choose between different principles supporting competing analogies · As there is no hierarchy of principles between the principles, judges have to choose, thus making new law · It is necessary for judges to be entrusted with law-making powers to avoid the inconvenience or disputes · Judges r constrained in the exercise of these powers n cannot fashion codes or wide reforms, but only rules to deal with the specific issues thrown up by particular cases · Dismissed the charge as being irrelevant, as hard cases r ones in which the state of the law is not known, so there is no law on which litigants can rest expectations
Neither of them wins the debate. Dworkin is saying what ought to be if coercion is to be justified and what, at its best, actually happens in his own society. Hart is telling us what, in any legal system, is; but, in one particular respect (hard cases in all cases being decide by judicial discretion), getting it wrong

America Realism

Introduction	· Realism means relating to the real world, the world as it actually operates · There was never any one corpus of agreed opinion, no central creed, no consensus · Existence of one common n all-pervading characteristic, namely a determination to look at the law with open eyes, to look the law as it actually operated in everyday practice · Although there was no one shared view, there was a shared attitude, a shared approach
Prediction (Oliver Wendell Holmes)	· The bad man does not care two straws for the axioms or deductions, but he does want to know what the courts r likely to do in fact · Bad man includes any person who is having to contemplate legal proceedings, whether as an accused in criminal proceedings, or a litigant, whether plaintiff or defendant, in a civil action · For bad man, the outcome is the law, he just want to know what his chances r of success · The statute is general in its application n the circumstances of one decided case never fit exactly the circumstances of a later one · The law does not have any teeth until the courts decide something. Indeed, until there is a decision, in way there isn’t any law. All we can do is to predict · Criticism: · Judicial bodies whose decisions r sought to be predicted r established by rules · Not all law is a matter of prediction, particularly in the field of public n administrative law · Even if prediction is one function that has to be performed, it is only one of various functions that r performed in the course of the law’s operation
The centrality of the role of the judge (J C Gray)	· Emphasizes the significance of the role of the courts in any consideration of the nature of law · The role of the judge is central to a proper understanding · Regarded all law as judge-made law as they put life into the dead words of the statutes · Statutes r not laws by virtue of their enactment, thus legislation is no more than a source of law
Skepticism over rules (Jerome Frank)	· A skepticism as to whether rules, if they exist, in practice play the part traditionally ascribed to them · In practice, judge does not explore the whole corpus of the relevant law, statutes n cases; he may pretend to do this, n his judgment may be written in a way that suggests that he had done this · But it may be that he has thought about the matter, decided who he thinks has the best case, n the gone to his law books to work out the chain of reasoning that will lead to his predetermined conclusion · So, the judge’s gut feeling as to which side ought to win or adopting the arguments of one counsel, for which he later finds support · There is no certainty. To the extent that rules exist, they r at best general proposition, incapable of providing a fixed answer to the infinite multitude of possible disputes · It was maintained, lawyers find the relevant general principle n from this could be deduced the subsidiary principle that governed the issue in question. But Dewey contended, the existence of such general principles was an illusion · They emerged as statements of the ways in which it had been found that a particular series of cases had been dealt with: there were no ‘universals’ outside n antecedent to particular cases · In reality, the court is being required to act as the conscience of the nation: to decide a matter of right n wrong · There may be uncertainty as to the outcome of the application of a rule does not mean that no rule exists · In some spheres rules (relating to land law) r so certain as barely to be capable of being the subject of litigation · The law is applied in everyday practice, we find that rules exist, rules the application of which entails no question of prediction or, where an element of prediction may enter in, rules that provide a framework within which the court is required to make its decision · It is also the existence of a rule, enables the prediction to be made; if D has been told by his lawyer to pay P a sum of money
Fact skepticism (Jerome Frank)	· Distinguished form rule skepticism, as it is the skepticism over the possibility of making any realistic assessment of the likely outcome of cases owing to the virtual impossibility of knowing in advance what facts will emerge during the trial n how these will be interpreted by the court · The fact sceptics’ primary interest is in the trial courts · No matter what the discoverable uniformities behind these formal rules, nevertheless it is impossible, n will always be impossible, because of the elusiveness of the facts on which decisions turn, to predict future decisions in most lawsuits, not yet begun or not yet tried
The illusive factors	· Prejudices may sometimes be surmised by others, such as racial, religious n political. But there r some hidden, unconscious biases of trial judges or jurors, such as plus or minus reactions to unmarried women, biases of which no one can be aware · These factors could influence judges n juries in trial courts, n could affect the credibility accorded to the accounts of witnesses, n also affect what is decided in the minds of the judge n jurymen, n hence the judge’s summing up of the evidence n the jury’s verdict · The significance of the ‘illusive factors’ was recognized as being equally important in the judgments of the higher, appellate courts · Realist school believes that the attitude of the individual judges influenced the outcome of cases · Emphasis on the significance of all these factors n a study of the extent to which such matters influenced decisions, came to be termed ‘behaviouralism’
Look at the whole process	· The attempts to elucidate the factors that influencing the court’s decisions is by examining legal processes as a whole · A determination to examine afresh all aspects of the workings of the administration, procedures n practices of the courts at all levels of the system
Measure the results	· Some adopt the same techniques as, contemporary sociologists; n it was natural that attention should be paid to the importance of statistics n, in more recent times, to the analysis of the data so collected by computers · ‘Jurimetrics’ was the word invented to connote the study of legal processes by scientific means, in particular through the analysis of statistics · L Loevinger wrote that ‘the next step forward, in the long path of man’s progress must be from jurisprudence to jurimetrics’
Shaking the dust off	· The problems of jurisprudence r basically meaningless, since they can only be debated but never decided nor ever investigated; whereas the questions of jurimetrics r meaningful since they r capable of being investigated, n ultimately answered · The problems of jurisprudence r not truly significant problems, since even if they were ‘solved’ – by the giving of authoritative definitions, the ‘solutions’ would have no practical consequences in our lives; whereas all of the questions of jurimetrics r genuinely significant, n thus is eminently practical in its approach, as contrasted with the philosophical speculations of jurisprudence

Critical Legal Studies

Introduction	· We are trapped in the system · Most people don’t realize they’re trapped · Some people know they’re trapped, but don’t care · Some people, more n more of us, know we’re trapped n object · The loose collection of writers whose work came in time to be referred to as Critical Legal Studies (Crits), were seeking to say · CLS movement was the general dissatisfaction of the American Legal Scholars with the American Law and Society Association, which they felt had become overtly engrossed with the analysis n appreciation of law via empiricism n behaviouralism · Legal development should endeavor to develop taking into account real rather than imagined social consequences n needs · It is about LAW IN ACTION as opposed to the phenomena of law as an intellectual abstraction
Formalism	· When you looked at the matter in the way the judge had done, not only manifestly correct, n manifestly in line with the rest of the law in that area, but almost staring you in the face if only you had realized it · The notion that there was a form of reasoning that could lead to the correct solution was a sham, that decisions were reached in ways that were arbitrary · Because throughout the law, principles existed that pulled in opposite directions, one principle favouring one party to litigation, another principle to the other party, which prinintrociple a judge adopted being something that could never be predicted
Conflicting principles	Criminal law · A wife who having been battered by her husband, kills him. She pleads the defence of provocation · One approach is to look at the circumstances immediately attending the killing, the other approach is to look at the events leading up to the killing · Whether the judge will accept the plead of provocation will be influenced by which approach the judge adopts · Thus, there is a conflict between the adoption of a narrow time-frame, n that of a broader one. But nowhere is guidance given as to which time-frame is appropriate · It reflects a parallel distinction that between 2 views as to what determines human actions. One is people r free to decide their actions (free will, or intentionalist view); while the other one is how a person acts it to a degree dependent on the circumstances, determined by what has gone before (determinist view) · Crits concluded that it is the intentionalist approach that is most commonly adopted by the courts Co-habitation · Where a woman seeks to enforce an co-habitation agreement against a male-partner · Conflict is between the common law principle (the agreement not legally enforceable because lack of the intention to create legal relations, no valid consideration) n the principle arising from public policy (duty of courts to give effect to the intention of the parties) · The range of options open to a judge makes possible virtually any decision Contract · Conflict between the principle enshrined in the maxim caveat emptor (to protect capitalist interests against the interests of the powerless consumer) n principle that it is the function of the state to intervene to protect the weaker party against exploitation · Which principle a judge would decide should prevail could never be predicted Rules v Principles · Conflict between those who believe that the law is best framed in the form of rules, n those who would have it framed in the form of standards or principles · Those in the rules have the advantage of certainty; while those in the standards have advantage that law implemented through standards is more likely to achieve the purpose · Example of the legal prescription of an age limit designed to protect minors; which would protect those under the age who do not in fact need the law’s protection, n failing some due to their circumstances, still need protection. Thus, the rigidity of the rule preventing the achievement of its purpose · Judges r pulled in different directions by principles that conflict in their result, thus their decisions r not inevitable as they r having to decide which of conflicting principles should prevail
Ulterior motives	· Judges were able by their freedom to choose between conflicting principles, to manipulate the outcome so as to protect or promote the interests of the class from which they came, this was termed ‘instrumental analysis’ · So instrumentalism is concerned with hidden motives that the judges themselves would treat as illegitimate if forced to confront them · A judge decided which way he wanted a decision to go n then produced an elegant chain of reasoning to lead to his predetermined conclusion · A judge constructs the materials to reach a desired result, n that the result is based on some real interest in winning a certain class of cases · A judge’s neutrality is no more than an illusion
To the barricades?	· Wish to bring about a complete change in the ordering of society · Condemn capitalism n the free market economy, n the hierarchical society that these produced. They condemned liberalism n sought a redistribution of social n economic power · Realisms should use their knowledge as lawyers to disclose how the law constituted an impediment to social change: to demonstrate that the law, far from being neutral, formed a buttress to the status quo with all its inequalities
Legitimation	Trick was done by taking three stages: · First, the law for its convenience invented categories · Secondly, people came to think of themselves as failing into one or other of the various categories that the law had invented · Thirdly, people treat the categorization as part of the natural order of things, as inevitable Reification · Crits termed reification as turning of something that otherwise has no existence into something that in people’s minds has not only a real existence, but a justified existence · In reification, we do not simply make a kind of private error about the true nature of what we r talking about, we participate in an unconscious conspiracy with others whereby everyone knows of the fallacy, n yet denies that the fallacy exists · Reification extends to the limits of how we talk n think about our society. We accept the abstraction as descriptive of a concrete truth · Once this acceptance occurs, any access that these r mere abstractions will be sealed off, n they can no longer be criticized because they signify a false concrete · The way law is structured is saturated with categories n images that for the most part rationalize n justify in myriad subtle ways the existing social order as natural, necessary n just · The law succeeds in getting people to see life n society in its own terms that the law so effectively acts as a legitimizing force · The real enemy is us – all of us, the structures we carry around in our heads, the limits of our imagination The task · Is by not being fooled by what reification does to our thinking, n refusing to accept that change is impossible · Is to start by understanding n disclosing how law legitimizes the existing order of thing, to unmask the ideological bias behind legal structures n procedures · We must look at all the ways in which the system seems at first glance basically uncontroversial, neutral, acceptable · We have to look closely at these belief systems which r profoundly paralysis inducing because they make it so hard for people to even imagine that life could be different n better · Law is clusters of belief, it convinces people that all the many hierarchical relations in which they live n work r natural n necessary · The way law is written helps to create n maintain the ordinary inequalities of everyday social life · We r brainwashed into accepting that if we want to remain prosperous we must endure all the miscellaneous injustices
Education	· Not only society n the law that was wrong, the way that law was taught was also at fault · Law school perpetuated the myth of the neutrality of the judicial reasoning, that concealed the conflicts n contradictions that once the lid was lifted, were revealed as riddling the law · Law school mirrored the society whose foundations the school bolstered by their promulgation of an unquestioning acceptance of the law as encapsulated within a liberal scheme of social organization · Law school is the inculcation through a formal curriculum n classroom experience of a set of political attitudes towards the economy n society in general · Students conned into believing that the law emerges from legal reasoning, n r bullied into accepting that a distinction exists between law n policy · Crits said ‘teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical n political discourse in general
How to they compare?	Positivism · Positivism thinks that the outcome of litigation was decided by the application of rules, n it is totally at variance with the Crits’ view of how the law works · Rejected the rules element of positivism, n also the strand of positivist thinking that regarded the law as standing neutral · The law formed a means by which the status quo in society was perpetuated Natural Law · The natural lawyers maintain that values r capable, through human reason, of being ascertained · Crits at least agree with them in rejecting the positivist view of the wholly subjective nature of values · Crits make the judgment that the present arrangement of society is wrong, it must be wrong according to some objective standard Liberalism Critcs maintain that liberalism was a dirty word. They maintain that: · Judge’s decisions r not neutral but give effect to values · Collectivism · The view that values can be objectively ascertained · Human actions tend to be determined by what has gone before · Law acts as an impediment to social change American realism · Critcs shared the American realism’s critical cynicism · The difference is realists scrutinize the law in action so as to be able to tell us how it works, while the crits tell us what the law does
Language	· Crits expressed their ideas in convoluted language, as they had their own vocabulary · They muddy the waters with pretentious obscurities in conveying their message
Alternative	· Crits want to: ü Replace a society in which individualism prevails with one in which altruism is the hall mark ü The pursuit of private gain by one of shared ends ü Recognize that relativism with regard to moral values has had its day, that the attainment of a more equal society is no desert mirage, unattainable, a sad delusion ü Calls for a re-evaluation for our existing values n premises n for a refinement of our legal culture · When someone claims a right, this assumes that they need the right. So they put them into people’s head that they need rights, this reinforces the idea that the status quo is part of the natural order of things · Rights which r usually thought of in terms of individual rights, tend to sustain a belief that individual interests r more important than community interests. This is rejected by Crits

Key Words : Analysis, Jurisprudence, Legal Theory, Natural Law, Postivism, Bentham, Austin, Hart, Hans Kelsen, Ronald Dworkin,

Law Guide

Friday, April 3, 2020

CPA Statement on the Election Commission’s Request for a Special Reference by the President to the Supreme Court on the Law Relating to Parliamentary Elections

Friday, January 10, 2020

Indian Supreme Court Weekly Digest January 1-10, 2020 Part 1

Monday, July 16, 2018

Legal Positivism Total Analysis !