Introduction to law

1. Law – Conceptual Analysis
 Law as a Major Concept – Importance of the
Analysis
 Law and related concepts – Ethics – Morality
and Law

2. Three Main Categories
 Law in terms of social order;
 Law in terms of elements of state;
 Law in terms of justice;

3. Law in terms of social order
 Law as a social norm
 Western legal tradition – Aristotle – The function of law
is to maintain order
 Ehrlich – Law is an ordering
 Law is living in the society in the form of usages, social
practices and rules of conduct of social groups
 Savigny – Customs are living law and the real law
 Demerit: Failed to distinguish social norm from legal
norm

4. Law in terms of elements of state
 Major category – Law as an Institutional Norm
 Sub-classification:
1. State system level – Law is the command of the
Sovereign;
2. Court based – Law involves the enforcement of norms
by courts.
 Analytical Positivism & Realism
 Difference of opinion about International Law

5. Law in terms of justice
 Law is “just” and law claims to be just
 Law is imbued with right and justice
 Ideology belongs to the Natural Law Thought
 Law should always carry the justice element in contrast
to coercive element

6. Law – Meaning and Definition
Ancient period:
Romans:
Justinian: “the standard of what is just and unjust”
Cicero: “law is the highest reason implanted in nature”
Hindu Thought: Dharma and Adharma – Law is a means
to achieve justice

7. Positivistic Definition
 John Austin: “Law is the aggregate of rules set by men
as politically superior, or sovereign, to men as politically
subject”
Law is the command of sovereign
Positive law means - characteristics like Command, duty
and sanction
Criticism-

8. Salmond:
“Body of principles recognised and applied by
the state in the administration of justice”
Comparison of Salmond and Austin

9. Sociological Definition
 Duguit: Law is mixed with social fact – Social solidarity is
the end of law – The rules can be called as law only if it
meets this end – The validity of law is based on general
will of the people – The sovereign is not above the law
 Jhering: “Law is the form of the guarantee of the
conditions of life of society, assured by state’s power of
constraint”
 Rosco Pound: “law is a social institution to satisfy social
wants”

10. Historical Definition
Savigny: Law is not an artificial lifeless mechanical device
and if it is made without considering the past historical
culture and tradition of the community, it cannot be used
for solving problems

11. Realistic Definition
 Justice Holmes: “the prophesies of what the courts will
do, in fact and nothing more pretentions, are what I
mean by law”

12. Social Legislation
 Dr. R.N. Saxena: “any act passed by the legislature or a
decree issued by the government for the removal of
certain social evils or for the improvement of social
conditions or with the aim of bringing about social
reform.”
 Fairchild, Dictionary of Sociology: “Social legislation
means laws designed to improve and protect the
economic and social position of those groups in society
which because of age, sex, race, physical or mental defect
or lack of economic power cannot achieve health and
decent living standards for themselves.”

13. Purpose of Social Legislation
 Social legislation is needed:
i) to ensure social justice,
ii) to bring about social reform,
iii) to promote social welfare,
iv) to bring about desired social change.
v) to protect and promote of rights of socioeconomically
disadvantaged groups of the society.

14. Purpose under the Constitution
 Removal of discrimination on the grounds of sex,
religion, caste, class etc. and promotion of equality
to all.
 Safeguard the rights of the weaker section such as
women, children, elderly, widows, destitute and
the backward classes.
 Eradication of traditional malpractices and social
evils such as untouchability, dowry, child marriage,
female infanticide etc.
 Provision of social security.

15. Social Welfare Legislations
 Hindu Marriage Act, 1955
 The Indian Divorce Act, 1969
 The Hindu Succession Act, 1956
 The Hindu Adoption and Maintenance Act, 1956.
 The Hindu Minority and Guardianship Act, 1956
 The Minimum Wages Act, 1948
 Workmen’s Compensation Act, 1923
 The Maternity Benefit Act, 1961
 Factories Act, 1948
 Social Legislation for Prevention of Crime and Deviance
 Corrective measures as per Criminal Procedure Code
 Indian Penal Code
 Probation of Offenders Act
 Juvenile Delinquency and Juvenile Justice Acts.
 Consumer Protection Act
 Monopolies and Restrictive Trade Practice Act.

16. Judicial Activism & Social Change
 Judicial Activism – Judicial Creativity
 Liberalising the locus standi – PIL
 Wide interpretation to Art.21
 Founding of the Basic Structure Doctrine
 Founding of the Compensatory Jurisprudence
 Inventing the Rarest of Rare formula
 Protection to Women in Employment – Visaka case
 Protecting the people from police atrocities
 Discovering the doctrine of Arbitrariness
 Expanded the meaning of secularism

17. Law for social order
 Law is an instrument of constraint to keep people from
evil or damaging behavior;
 Rules of law provide citizens a framework within which
they can organize their relations with one another;
 It gives peaceful and profitable coexistence.
Law as social control
Legal order compared with order of language – Lon L.
Fuller (Law as an Instrument of Social Control)

18. Supremacy of Law
 Rule of Law Concept - rule, supremacy, or predominance
of law
 Law is the King –
 Albert Venn Dicey – “Introduction to the Study of the
Law of the Constitution” 1915
 Rule of Law in England: supremacy or the rule of law is a
characteristic of the English constitution

19. THREE MEANINGS OF RULE OF LAW
 Absence of arbitrary power on part of the government.
 Every man subject to ordinary law administered by
ordinary tribunals.
 Predominance of the legal spirit

20. Absence of arbitrary power on part of the
government
 No man is punishable or can be lawfully made to suffer in
body or goods except for a distinct breach of law
established in the ordinary Courts of the land.
 Rule of law is in contrast with authority of wide, arbitrary,
or discretionary powers
 Wherever there is discretion there is room for
arbitrariness

21. Every man subject to ordinary law
administered by ordinary tribunals
IDEA OF LEGAL EQUALITY
 Every man, whatever be his rank or condition, is subject
to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.
From the Prime Minister down to a constable or a
collector of taxes, is under the same responsibility for
every act done without legal justification as any other
citizen.

22. Predominance of the legal spirit
 The constitution is pervaded by the rule of law on the
ground that the general principles of the constitution (as
for example the right to personal liberty, or the right of
public meeting) are with us the result of judicial decisions
determining the rights of private persons in particular
cases brought before the Courts

23. LAW AND MORALITY
INTRODUCTION
Different views – The historical view
 Law & morality have a common origin but diverge in
their development
 Early stage – It was intertwined and difficult to
differentiate

24.  Oxford Dictionary defines moral as “concerned with
character or disposition, or with the distinction between
right and wrong”-
 This shall be decided on the basis of the actions of the
individual – Moral if he acts in accordance with what he
believes to be right- immoral according to his wrongful
motive.
 The test is right or wrong – This sense of morality means
the “obligation to do what the conscience of the
individual person tells him is right”

25.  Motive element compared: internal element
distinguishes it from law.
 What is the force factor in morality?
 The individuals are subjecting their mind to a form of
objective reasonableness of their actions.
 However, reason alone cannot be considered as a sole
element of moral law since reason is not a motive.

26. Where we can find out the “objective moral law”
 The origin is in the divine commands like 10
Commandments or the implied commands which can be
discovered through reason.
 Instinctive feelings also guide objective moral law if it
is uniform in nature.
 Reason and moral law – Reason means the logical
deductions from a basic premise. The sanctity of the
moral law, therefore, lies on the nature of the premise.

27. Stages of Development
 Pre-legal stage: Undifferentiated in between ethics,
customs, morality, religion & law.
 Strict law stage: Codified or crystallized custom, which
in time was exceeded by morality, does not possess
sufficient power of growth to keep abreast.
 Infusion of morality into law: The law was reshaped
by morals or the stage of equity and natural law.
 Stage of conscious law making: The maturity of law –
The morals and morality are for the law maker and that
law alone is for the judge.

28. Philosophical View – Translation of moral
precepts into legal precepts
 Legal precepts are only declaratory of moral precepts.
 The rule of decision in a court cannot be a legal precept
unless it is a moral precept – The legal precepts should
not run counter to moral precepts
 The moral precepts are legally obligatory
Moral Principles + Equity + Natural Law = Legal
Principles
In morals, the deductions are based on motives of
conduct while in law it is based on outward results of
conduct

29. Analytical View
 Contended that law and morals were different and
unrelated
Confusion about intertwined nature of law and
morality is only an assumption like theoretically
explained separation of power doctrine. In practice,
overlapping is there.
If there is absolute separation of powers then law for
courts, morals and morality for legislators.

30. Sociological View
 Functional View: Law in the lawyers sense and
morality are forms of social control
Roscoe Pound: The relationship between law and
morality through three angles:
1. Morals as basis of law:
No distinction between morals and law. All have
common origin and sanction was in the nature of
supernatural fear-
Later state picked those rules and enforced in the
name of law.

31. 2. Morals as test of law: (Ancient view)Law must
conform to morals. The law which is not in conformity
with morals become invalid.
(Modern view) Law is considered to be valid and
binding even if it is not in conformity with morals.
Paton: “If the law lags behind popular standard, it falls into
disrepute; if the legal standards are too high, there are
great difficulties of enforcement”

32. 3. Morals as end of law: The aim of law to secure justice
is very much based on morals- The term law encompass
both justice and morals.
Morals is an evaluation of interests -

33. Difference between Law & Morals
 The object of law is submission of individual to the will
of organized society; tendency of morality is to subject
him to the dictates of his conscience;
 Subject-matter different: Legal rules and moral rules
for different purposes;
 Morals or ethics is a study of the supreme good and law
for society;
 Law is concerned with the social relationship of men
rather than the individual excellence of their character;
 Morals and ethics considers only the motive and law
considers the external conduct;

34.  Morality furnishes the criterion for the proper evaluation
of our interests; law marks out the limits within which
they ought to be confined;
 Law is concerned only if an individual is living in a
community with others; morals give a guide to lead him
even if he were alone;
 Law governs the will through external coercion; morals
seek a free self-determination towards the good;
 Difference in sanctions;
 Difference in imposing of sanctions.

35. HLA Hart & Lon L Fuller Debate
Problem of legal validity and a corresponding obligation
to obey the law – Fuller’s words “ideal of fidelity to law”
HLA HART’S VIEW
A DEBATE OF LEGAL VALIDITY
 A certain law exists, does not depend on any moral
evaluation of it. Morality is external to law.
 In positivism legal validity means not justification but that
it is recognized as enforceable by tests set down in an
efficacious legal system. Legal validity is a social fact.
 A law actually “exists” in a legal system in the sense that
it can fulfill its function of social regulation.

36. HART’S LEGAL VALIDITY THEORY
Hart’s Legal System
The moral rules has no place in this system. Moral criteria is
not a necessary condition for the validity of positive law.
Primary Rules of Obligation (The rules create obligation
through social pressure)
Secondary Rules Conferring Powers (Rule of recognition)

37.  Hart’s legal system is like a closed circle which deals only
the internal perspective and not external point of view.
 Hart understands the validity of a legal norm in the sense
of systemic validity, meaning that it is part of the legal
system and not necessarily linked to moral evaluations of
it.
 There is a separation between “law as it is” (meaning:
legally/systemically valid) and “law as it ought to be” (our
evaluations of this positive law).
 The rule of recognition Is a social fact, it is an actual
social practice, there is nothing essential moral about it.

38. Two minimum conditions necessary and sufficient
for the existence of a legal system
1. Rules of behaviour which are valid according to the
system’s ultimate criteria of validity must be generally
obeyed;
2. Rules of recognition specifying the criteria of legal
validity.

39. Fuller & Legal Validity
 Law to be legally valid, must conform to the “internal
morality of law”.
Fuller connected Hart’s “fundamental accepted rules
specifying the essential law making procedures” with
moral rules since they are accepted as something good.
 Due to the essential purpose of a legal system as
contributing to good order, its acceptance is a genuinely
moral act; therefore the rule of recognition as the
ultimate rule of the legal system belongs not just to the
legal, but also to the moral sphere.

40.  The purpose of law is that of “subjecting human conduct
to the guidance and control of general rules”
 Law itself contains an internal morality, certain criteria
which have to be met in order for a legal system to exist.
 For Fuller there is an internal morality of law.

41. Fullers Division of Morality
 Sub-divided into two:
1. Morality of Aspiration & Morality of Duty (Comparable
with Ethics & Morality.
2. Internal Morality & External Morality.
The internal morality of law concerns the procedure of
making law, the technique used by the law maker in deciding
which rule of substantive law should be applied to the
particular case.
The external morality of law refers to the content of the
substantive rules of law which are actually applied by the
arbiter in arriving at his decision.

42. Eight Principles to Test The Propriety of Law–
These Principles are “Internal Morality of Law”
1. Law should be Generally Applied;
2. Publicly Promulgated;
3. Sufficiently Prospective;
4. Clear & Intelligible;
5. Free from Contradictions;
6. Sufficiently Constant through time;
7. Not require the Impossible;
8. Administered in a way sufficiently
Congruent.

43. Law & Public Opinion
Role of Public Opinion in Law Making – Introduction
The terms “Public” and “Opinion”
Public means “any loose association of individuals held
together by common interests”
The interest is common to all the members of the
community or nation.
Public Opinion means a belief or conviction or views of
individuals on matters of issues of widespread or public
interest and concern.

44.  The opinion of a member of a public cannot be a public
opinion-
 Public opinion is not the opinion of the public.
 Ideal Meaning: Public opinion is the “aggregate of the
opinions held by individual members of the public”.
 Dicey: Public Opinion with reference to
Legislation: “the belief or conviction prevalent in a
given society that particular laws are beneficial, and
therefore, ought to be maintained, or that they are
harmful and therefore ought to be modified or repealed”.

45.  The role of political parties and their opinion
representing the public-
 The role of trade unions and associations –
Whether law should come out of public opinion?
Views of Bentham & Savigny – conflicting one
The influence of public opinion in law making depends on
the type of system-
Upendra Baxi – The moot issue is whose expectation
should be satisfied by the law maker

46. Approach - Currents
 Three currents –
1. Main current;
2. Counter currents; and
3. Cross currents.
Main current – The category having maximum support at
a given time;
Counter – The category opposed to the main;
Cross – Neither support or oppose but have a different
interest of certain pressure groups.

47.  Individualism (Main current) in England –
Utilitarianism of Jeremy Bentham and its influence in law
making in England and India –
 Socialism (counter current) – Based on collective
interest or state interest – Marx, Lenin
 Mixed Economy (Cross current) - Keynes

48. Public Opinion and Law Making in
India
 19th
Century – 1st
Half – 2nd
Half
 20th
Century – Ist Half – 2nd
Half
Currents of opinion in India