Jurisprudence & Legal Theory Notes PDF

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1. HLA Hart – Positivism – Jurisprudence NotesHart primarily deals with the following:-o Law and coerciono Law and moralityo 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 ob...

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1. HLA Hart – Positivism – Jurisprudence Notes 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.

2. Ronald Dworkin – Jurisprudence Notes 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. Ronald Dworkin: Law as Integrity Other notes:   

Law as Integrity Ronald Dworkin Law's Empire, 1986

 Key to Ronald Dworkin’s Constructive Interpretation of legal practice is the conception of Law as Integrity. Law as integrity holds a vision for judges which states that as far as possible judges should identify legal rights and duties on the assumption that they were all created by the community as an entity, and that they express the community’s conception of justice and fairness.

 According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice.

 Law as integrity states that the law must speak with one voice, so judges must assume that the law is structured on coherent principles about justice, fairness and procedural due process, and that in all fresh cases which comes before them, judges must enforce these so as to make each person’s situation fair and just by the same standard – that is to say, treat everyone equally.

 Dworkin argues that, law as integrity offers a blueprint for adjudicator which directs judges to decide cases by using the same methodology from which integrity was derived viz, constructive interpretation.

 Integrity is both a legislative and an adjudicative principle. Legislative principle requires law makers to try to make the laws morally coherent. Lawmakers are required to ask the assumption that integrity is a distinct ideals of politics, for politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready to begin.

 Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. Adjudicative principles instruct that the law be seen as coherent in that way, as far as possible. Constructive interpretation is a methodology for interpreting social practices, texts and work of art. The distinctive feature of this is that it is argumentative.

 The process of constructive interpretation is made up of three analytical stages: (1) Preinterpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the preinterpretive stage. At the post-interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.

 Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best light.

 For Dworkin, the historical legal record must constitute the source of legal interpretation: this interpretation must fit into the existing both of legal materials. It should not be thought that a judge committed ton law as integrity is required to interpret laws in the light of the purposes which gave rise to them. On the contrary, he is required to impose order over doctrine, not to discover order in the forces that created it.

 Dworkin is compelled to conclude that what constrain interpretation is not historical legal materials in some objective sense, but the judges convictions about “fit”. According to Dworkin, the constrain upon judges arises from their personal need as individuals to integrate their convictions about “fit” with their convictions about whether their interpretation shows the interpreted practice in its best light.

 To understand “fit” Dworkin employs the idea of the ‘Chain Novel’. Imagine that a number of novelist agree to write one chapter each of a proposed novel. Clearly, there will be constraints of ‘fit’ upon the author of the second chapter, constraints which will increase through each successive chapter.

 Because law as integrity sees the law as a coherent whole, law as integrity requires the judges to go through the whole law to consider an interpretation. The interpreted law as integrity holds that judges would both fit and justifies what has gone on before as far as possible.

 Just as the interpretation within a chain novel, in law it is a delicate balance of political convictions of different sorts. In law, as in literature, these must be sufficiently related, and yet disjointed to allow an overall judgment that trades off an interpretation’s success on one standard against failure on another.

 If, for example, it is decided in the case of McLoughlin v O’Brian (1983) that Mrs. McLoughlin deserves compensation for her injury, then the question that we need to analyze is whether legal practice is seen in a better light if the community accepts the principle that people in Mrs. McLoughlin’s position deserves compensation.

 To the positivist, in the McLoughlin case, the judges must exercise discretion and make law, which is then applied retrospectively to the parties in the case.

 It is noted that, if the judge is guided by law as integrity, he is directed to regard as law what morality would suggest to be the best justification for past decisions. If this is so, a judge deciding McLoughlin employs his own moral convictions. If the judge is satisfied that the law as he understands it favors Mrs. McLoughlin, he will feel justified in thus deciding whatever the present legislature thinks, whether or not popular morality concurs.

 Law as integrity provides a consistency in principle which requires that various standards governing the states use of coercion against the citizen be consistent in order to have a single vision of justice.

 If a judge deciding the McLoughlin case is tempted to decide against Mrs. McLoughlin, he would first ask himself whether any principled distinction can be drawn between her case and other mothers who suffer emotional damage at the scene of an accident.

 Positivism is different from law as integrity because it rejects consistency in principle as a source of legal rights. Positivism does not require judges to justify their decisions to the entirety of the law. Positivism does not consider the law as having an integral life of its own. Positivism will present the law as comprising of a set of discrete decisions, which judges have the discretion to make or amend law.

 On the contrary, law as integrity sees the law as a coherent phenomenon, rather than a set of discrete decisions. Law as integrity requires judges to justify their decisions to the entirety of the law, which is considered to have an integral life of its own.

 Consistency in principle supposes that people have legal rights which follows from legislation and precedents which enforce coercion. Mindful of this, law as integrity supposes that people are entitled to a coherent and principled extension of past decisions even when judges disagree about what that means.

 Positivism denies this, since it denies consistency in principle as a judicial virtue for dissecting ambiguous statute and in exact precedents to try to achieve this. The methodology of Dworkin’s model judge, Hercules, emphasizes this point.

 Law as integrity requires judges to treat the techniques that they use in interpreting statutes and measuring precedents not simply as tools handed down by the legal system, but as principles they assume can be justified in political theory, and when that is in doubt they construct a theory of the system to better them.

 To Dworkin, no mortal judge can or should try to articulate his instinctive working theory or make theory so concrete and detailed, that no further thoughts will be necessary case by case. He must threat any general principles or rules as thumb he has followed in the past as provisional and stand ready to abandon these in favor of more sophisticated and searching analysis when the occasion demands.

 It is nevertheless possible for any judge to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.

 Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies easy cases as well as hard cases and it also shows why they are easy. So easy cases are, for law of integrity, only special cases of hard cases, and, to Dworkin, we need not ask question when we already know the answer.

 The process of adjudication inherent in the theory of law as integrity yields right answer to question of law. For Dworkin, in most hard cases there are right answers to be hunted by reason and imagination. As a consequence of this conception of law, lawyers are invited to search for an answer in legal materials using reasons and imagination to determine the best way to interpret legal data. It is therefore possible for lawyers to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.

3. Hans Kelsen – Normative Theory (Grundnorm) – Jurisprudence Notes Norms and Facts  Facts consist of things and events in the physical world and revolve around what ‘is’.  Norms unlike facts f...