COURSE MANUAL

JURISPRUDENCE

B.A. LL.B. 2013

B.B.A.LL.B 2013

Course Instructors
Pritam Baruah
Sushant Chandra
Arun Sagar
Shivprasad Swaminathan
Faiz Tajuddin
2| J UR I S P R U D E N C E

CONTENTS

I. PART I
General Information…………………………………………………………………4

II PART II

Course Description……………………………………………………………………5

Course Aims………………………………………………………………………….5

Intended Leaning Outcomes …………………………………………………….......6

Grading of Student Achievement…………………………………………………....8

III PART III

Keyword Syllabus………………………………………………………………….10
Caution on Online Readings and Plagiarism……………………………………….10

IV PART IV

Weekly Course Outline …………………………………………………………...11

V WEEKLY READINGS

Introduction……………………………………………………………………….12

Command Theories and their Predecessors (Historical School, Voluntarism and

Natural Law Theory)……………………………………………………………….13

American Legal Realism………………………………………………………….15

Kelsen and the Purity of Law……………………………………………………..17

Scandinavian Realism…………………………………………………………….19

Hart’s sophisticated legal positivism: Law as a System of Rules………………....20

Ronald Dworkin: The Noble Dream………………………………………………23

Critical Approaches: Critical Legal Studies and Feminist Jurisprudence…………25

Moral Limits of the Law………………………………………………………......27

Justice……………………………………………………………………………...28

Fundamental Legal Concepts: Hohfeld’s Typology……………………………….28

3| J UR I S P R U D E N C E

SEMESTER I

2015-2016
4| J UR I S P R U D E N C E

General Information on Jurisprudence offered by Jindal Global Law School

Semester 1 in 2015/2016

The information provided herein is by the Course Coordinator. The following information contains the official
record of the details of the course.

Part I

Course Title: Jurisprudence

Course Code:

Course Duration: One Semester

No. of Credit Units:

Level:

Medium of Instruction: English

Pre-requisites: Nil

Pre-cursors: Nil

Equivalent Courses: Nil

Exclusive Courses: Nil

The above information shall form part of the University database and may be uploaded to the KOHA
Library system and catalogued and may be distributed amongst Third year Law students for B.A./LL.B.
courses if necessary.
5| J UR I S P R U D E N C E

Part II

COURSE DESCRIPTION

Literally translated, jurisprudence means ‘wisdom about the law’. This course aims to do just
what it says on the tin. But if this is the course that makes you wiser about the law what about
everything else you study in law school? To be sure, they too do make you wiser, but about
specific areas and doctrines in the law, about specific legal regimes and the like. Jurisprudence,
on the other hand, is a general reflection about the law which is undertaken at a certain level of
abstraction (more below on the utility of studying something this abstract). Such being the nature
of jurisprudence, it involves forays into the many areas in the intersection of which the law is
situated e.g. philosophy, sociology, economics and politics. This course will emphasize more on
philosophy, by which I mean that we will emphasize on philosophical reflections on the law by
philosophers, more than economists and sociologists etc. The names of some of the philosophers
we will be reading might ring a bell: Bentham, Austin, Hart, Kelsen, Dworkin, Raz (no need for
alarm bells if they don’t). We will also have the occasion to consider debates on the hardy
perennials of philosophy in the public domain—What is justice? Can the state prohibit conduct
merely because it is immoral?

COURSE AIMS

You must note, that what legal philosophers have said will only be our point of departure. The
purpose of jurisprudence is not to tell you what a bunch of philosophers thought about the law.
Rather it is to make you see the issues underlying their accounts; show you what positions can be
taken about them and guide you towards actually taking positions on them. Just like to do
philosophy is to be a philosopher to do jurisprudence is to be a jurisprude yourself. You have to
experience the problems legal philosophers were grappling with to realize the importance of such
questions. The point of Jurisprudence is to acquaint you with how to think rather than teach you
mastery over what others have thought. Read on to understand the kind of questions which legal
philosophers have taken positions on and why those questions have been found to be appealing.
6| J UR I S P R U D E N C E

COURSE INTENDED LEARNING OUTCOMES

Course Intending Learning Teaching and Learning Assessment

Outcomes Activities Tasks/Activities

By the end of the course students

should be able to:


Analytically and 50% Reading of philosophical End-of-course
critically describe, texts other material, and examination (50% of
explain, and take weight Research marks)
positions in the main
philosophical debates  Students will
pertaining to the acquire knowledge
topics to be covered of the philosophical Tutorials (30 % of marks
in the syllabus. debates their for attendance, group
motivations and presentation and
implications) participation)
pertaining to the
topics to be covered
in the syllabus.
 Preparation outside Philosophical Moot (20%
the class of marks)
Lectures

 Students will be
given guidance on
their reading and
research for their  Students’ ability to
lectures and describe, explain
tutorials. and take positions
 Students will, by on the philosophical
responding to debates covered in
questions and the syllabus will be
performing tested by all the
exercises, develop above assessment
their analytical and tasks/activities
critical capabilities
discuss important
issues of liability
7| J UR I S P R U D E N C E

pertaining to
topics covered in
the syllabus.


Analyse and 50 % Lectures End-of-course examination
critically engage
with: Weight  Students will be  Students’ ability to
 issues and introduced to take join issue in the
concerns in positions on and philosophical debates;
reflected in the join issue in the critically engage with
jurisprudential debates introduced tne debate; and
debates in the class suggest (not in a
 the relevance of Preparation for tutorials comprehensive
the debates to manner, however)
live debates in  Students will novel approaches to
law and politics: research issues the issues at hand
o in terms of outlined in the will be tested.
the practical jurisprudential texts Tutorials
implications and debates
of the issues Tutorials  Students will be
identified in required to make
the deabte  Students will give presentations on
o their presentations on problems / reading
conceptual selected topics in materials allotted to
underpinning which they will them and all students
s scrutinise, analyse will be required
o in relation to and evaluate issues contribute to tutorial
the law in and concerns discussions whether
action they are making a
presentation or not.
 Students’ ability to
research, analyse and
resolve problems, and
communicate
solutions orally will
be tested.

Assignment/s
8| J UR I S P R U D E N C E

 Students’ ability to

research, analyse and

resolve problems,
and communicate
solutions in writing
will be tested.

Note: The internal assessment may vary between sections. The concerned course instructor will
inform students about internal assessments at the beginning of the semester.

GRADING OF STUDENT ACHIEVEMENT

To pass this course, students must obtain a minimum of 50% in the cumulative aspects of
coursework: tutorials, moot, and final examination. End of semester exam will carry 50
marks.

The details of the grades as well as the criteria for awarding such grades are provided below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding work with
strong evidence of
knowledge of the
subject matter,
excellent
organizational
capacity, ability to
synthesize and
critically analyse and
originality in thinking
and presentation.
A+ 75 to 79.75% Excellent Sound knowledge of
the subject matter,
thorough
understanding of
issues; ability to
synthesize critically
and analyse
A 70 to 74.75% Good Good understanding of
the subject matter,
ability to identify
issues and provide
balanced solutions to
problems and good
critical and analytical
skills.
A- 65 to 69.75% Adequate Adequate knowledge
of the subject matter to
go to the next level of
9| J UR I S P R U D E N C E

study and reasonable

critical and analytical
skills.
B+ 60 to 64.75% Marginal Limited knowledge of
the subject matter,
irrelevant use of
materials and poor
critical and analytical
skills.
B 55 to 59.75% Poor Poor comprehension of
the subject matter;
poor critical and
analytical skills and
marginal use of the
relevant materials.
B- 50 to 54.75% Pass “Pass” in a pass-fail
course. “P” indicative
of at least the basic
understanding of the
subject matter.
F Below 50% Fail Fails in the subject

KEYWORD SYLLABUS
Command Theory; Sovereign; Jeremy Bentham; John Austin; Historical School; Samuel
Pufendorf; Savigny; Oliver Wendell Holmes; American Legal Realism; Reductionism;
Scandanvian Legal Realism; Ross; Hagerstrom; Olivecrona; Legal Positivism; Natural Law
Theory; H.L.A.Hart; Hans Kelsen; Grundnorm; Rule of Recognition; Ronald Dworkin; Critical
Legal Studies; Feminist Jurisprudence; Justice; John Rawls; Rights; Fundamental Legal
Conceptions; Hohfeld.

A WORD OF CAUTION ON ONLINE READINGS

Online sources can be classified into reliable, unreliable and outright bogus. The Internet is an
open domain in which all and sundry can create web pages and indulge in propaganda,
falsification or misrepresentation of events. The few sources that can help you with basic
information and which are fairly unbiased are: websites of established newspapers, magazines
and journals. Student should always consult with the instructors about the veracity and
authenticity of a particular web site and its suitability for researching topics covered in this
syllabus

PLAGIARISM
10 | J UR I S P R U D E N C E

Any idea, sentence or paragraph you cull from a web source must be credited with the original
source. If you paraphrase or directly quote from a web source in the exam, presentation or
essays, the source must be explicitly mentioned. You SHOULD NOT feel free to plagiarise
content, be it from scholarly sources (i.e. books and journal articles) or from the Internet. The
university has strict rules with consequences for students involved in plagiarism. This is an issue
of academic integrity on which no compromise will be made, especially as students have
already been trained in the perils of lifting sentences or paragraphs from others and claiming
authorship of them.
11 | J UR I S P R U D E N C E

COURSE OUTLINE

Week 1 Introduction
Week 2 Command Theories and their Predecessors (Historical School,
Voluntarism and Natural Law Theory)
Week 3 Legal Realism: American and Scandinavian
Week 4 Kelsen and the Purity of Law
Week 5-6 Hart’s sophisticated legal positivism: Law as a System of Rules
Week 7-8 Ronald Dworkin: The Noble Dream
Week 9-10 Justice
Weeks 11 Critical Approaches: Critical Legal Studies and Feminist Jurisprudence
Weeks12 Philosophical Moot
Week 13 Moral Limits of the Law
Week 14 Law and Sexuality or
Fundamental Legal Concepts: Hohfeld’s Typology
12 | J UR I S P R U D E N C E

Introduction

Jurisprudence sometimes carries the tag of being an otherworldly, dense and impenetrable
subject. Before anything else, I want to dispel this wrong impression. Jurisprudence is a subject
that challenges intellectual lethargy and forces us to seek clarity of thought and expression. No
legal concept or cherished dogma is beyond the critical gaze of the jurisprude. When simple legal
answers run out, one must turn to jurisprudential tools in seeking novel solutions. Jurisprudence
will make you a better corporate or tax or litigation lawyer; it will make you a better, disciplined
thinker, generally. We will be encountering many live issues needing jurisprudential tools for
their resolution later in the course, but as an introduction, read the following debate from Plato’s
Republic to see some of the hardy perennials of jurisprudence which recur and have figured
prominently in the literature across ages. This reading is meant to give you a flavor of the kind of
issues which need jurisprudence for their understanding and solution. Why Plato you may
wonder? A lot of western philosophy (and jurisprudence) has baked with the dough of the Greek
classics. Visiting the source will give us a sense of what lies ahead in the course.

Reading:

Simon Blackburn, Plato’s Republic (Grove 2007) 21-41

13 | J UR I S P R U D E N C E

II

Command Theories and their Predecessors

Legal Positivism is a doctrine about the nature of law according to which laws are posited (laid
down). The legal validity of a rule or decision depends on its sources (e.g. its pedigree) rather
than its merits (e.g. whether or not it is a good rule).

Command Theories

This way of understanding law was made famous during the nineteenth century by the
‘command’ theories of law advanced by Jeremy Bentham and John Austin (but the roots of
Sovereign command theories are much older e.g. Hobbes). Due to a historical accident, it is
Austin’s writings that became more prevalent that Bentham’s though the former was the latter’s
disciple and a far more sophisticated legal philosopher. It is very important to understand the
command theorists because they were enormously influential and a lot of 20th century legal
philosophy including Kelsen and Hart evolved in response to these command theories.

According to these theories, something is law if it has been commanded by a Sovereign, and is
backed up by the threat of a sanction in case of non-compliance.

Command theories have some things going for them which explained their sway over us for so
long: They urge us to identify and understand what law is before considering whether it is
morally good or bad; They give a central role to sanctions which are ubiquitous in the law

Questions to consider

There may however be problems with this manner of thinking many of which were admirably
brought out by Hart and Kelsen (which we will consider in detail in later weeks). But for now
just think of some of these problems.


If law is a command of the sovereign backed up by threat of sanction, what about
international law? Is it not law at all? Don’t you think this tells
us that something may be
wrong about this theory? Can’t there be law without a sovereign?


If each law is posited by an act of the Sovereign way how does one explain the
phenomenon that legal systems seem to have a life of their own, distinct from the lives of
the Sovereigns? Which is to say, don’t Legal systems remain in force even when one
or one legislature dissolves and a new one ascends to the throne or is
Sovereign dies
reconvened?

What about the power to make wills? Or the
Can you not think of law without sanctions?
many permissive laws that permit actions?
14 | J UR I S P R U D E N C E

Readings:

Suri Ratnapala Jurisprudence (Cambridge 2009) 36-47

Further reading

John. D.Finch Introduction to Legal Theory Chapter 4

William Sweet, ‘Jeremy Bentham’ Internet Encyclopedia of Philosophy ( Open online access)

John Austin The Providence of Jurisprudence Determined

Jeremy Bentham An Introduction to the Principles of Morals

Roger Cotterrell The Politics of Jurisrudence (Oxford India 2008) Chapter 3

H.L.A Hart, ‘Bentham’s Of Laws in General’ in Hart, Essays on Bentham (Oxford 1982)

The Predecessors: Voluntarism, Natural Law and the Historical School

The command theories have exercised a disproportionately large influence on legal philosophy
To completely understand the command theories it is absolutely essential to know what they
were responding to. Here were will see three important schools: the moral voluntarists, the
Historical School and the classical natural lawyers for whom an unjust law was not law at all.
The command theorists were responding to what they saw as some glaring shortcomings of these
predecessors.

Readings:

Brian Bix, Jurisprudence: Theory and Context 275, 276

Christine Korsgaard Sources of Normativity (extracts)

Kenneth Himma Natural Law Internet Encyclopedia of Philosophy

http://www.iep.utm.edu/natlaw/

Questions to consider

What makes it the case that the say-so of the sovereign is morally binding?Doesn’t it
need something ‘above’ it to make it so? Will this not lead to infinite regress?


What do we gain by denying that unjust law is law? Does this add to clarity or detract
from it? Is it of any practical utility to deny that unjust law is law? 
15 | J UR I S P R U D E N C E

III

American Legal Realism

Realism is a project designed keep an area of thought close to what is widely and
uncontroversially recognized as the reality as opposed to mere idealism. Sometimes, this project
is also called reduction. Translating a complex, problematic idea that does not have a firm
footing in science into one that has a strong scientific basis is the point of reduction or realism.
Accordingly, the Legal realists’ quest was to expel from the ‘science of law’ all but empirically
verifiable propositions. Realists condemn as idealistic (unscientific) any categories of legal
thought that cannot be reduced to empirical facts. So, for them the idea of an obligation is pretty
much nonsense unless translated to the predictability of sanction (note the clear similarities with
Bentham and Austin here).

There are two realisms that have been prominent in legal theory. One is American Legal Realism
and the other is Scandinavian Realism. While American Legal Realism is older, it was
Scandinavian Realism which was the more sophisticated of the two. While both the American
and Scandinavian realists were committed to a scientific and empiricist approach the
Scandinavians paid close approach to the way in which law played a role in the mentality of
those subject to it. We will study American Legal Realism here and return to study Scandinavian
Legal Realism after studying Kelsen.

American Legal Realism

The leading light of this movement was the celebrated American Supreme Court Judge, Justice
Oliver Wendell Holmes Jr. Holmes saw the legal obligation as a prediction that sanctions were
likely to be visited upon someone not following a course of conduct. Accordingly, Holmes saw a
contractual obligation as the obligation to pay damages in case of breach. But doesn’t this put the
cart before the horse?

Readings:

Brian Bix, Jurisprudence: Theory and Context (Sweet& Maxwell 2012) 193-205.

Oliver Wendell Holmes, Jr. ‘The Path of the Law’ 10 (1897) Harvard Law Review
457 http://www.gutenberg.org/files/2373/2373-h/2373-h.htm

Alf Ross’ Tu Tu’ 70 (1958) Harvard Law Review 812

(Note: Alf Ross’ was a Scandinavian Legal realist and his variety of realism was in many ways
different and much more sophisticated than that of the American Legal Realists. Ross has been
recommended here to be read alongside Holmes because the empiricist (reductionist) ambitions
are revealed in Ross far greater clarity)
16 | J UR I S P R U D E N C E

Further Reading

F. Cohen, ‘Transcendental Nonsense and the Functional Approach’, 35 Columbia LR (1935) 809

K. Llewellyn, ‘A Realistic Jurisprudence – The Next Step’, 30 Columbia LR (1930) 431

Jerome Frank Law and the Modern Mind (extracts from Lloyds Jurisprudence)

Karl Llewellyn ‘Some Realism About Realism 44 (1931) Harvard Law Review 1222

William Twinning Karl Llewellyn and the Realist Movement 1973 (extracts)

Questions to consider

Can legal obligation be understood as a prediction of threat of sanctions? What about a
case where a person is clearly not threatened by sanctions (say a hardened swindler)
would you say he has no legal obligation? 


Holmes puts the bad man at the heart of his account. But is this is this theperspective one
should worry about while try to give a philosophical account of the law?


If all there is to obligation is a fear of sanction or threat, is there no difference between
the law and the gunman’s commands? Wheredoes this leave the law? Is the law then
nothing more than a mere system of coercion?


Scandinavian Realism

Scandinavian Legal Realists were a the group of legal philosophers sometimes referred to in a
tongue-in-cheek manner as ‘the wild prophetic figures riding in from the hills with a message for
legal philosophers’ due their radical and iconoclast philosophy. This group comprised of
philosophers Axel Hagerstrom, Karl Olivecrona, Vilhelm Lundsted and Alf Ross. Hagerstrom,
the leading light of this movement, propounded a strictly empiricist and naturalist philosophy
that sought to eliminate what he thought was speculative metaphysics. His chosen motto raised a
call to arms against metaphysics, "Praetere censeo metaphysicum esse delandam”.1 Integral to
Hagerstrom’s and Scandinavian Realists philosophy (legal and moral) was a non-cognitivist
account of moral value, which according to him, consisted in the idea of moral ‘internalization’.
They in fact saw Kelsen as an inheritor of the troublesome legacy of natural law and wanted to
do away with every vestige of the natural law. Kelsen’s grundnorm was nothing but natural law
redux, they thought and hence wanted to banish it. It is now widely thought that Hart demolished
the program of the Scandinavian Realists. Though they now don’t have the following they once
did, they can be seen as precursors to Hart. Seeing the points of contiguity between Scandinavian
17 | J UR I S P R U D E N C E

Realists and Hart is an interesting exercise.

Readings:
Suri Ratnapala Jurisprudence (Cambridge 2009) 36-47

Further Readings:
Axel Hagerstrom Inquiries into the Nature of Law and Morals (1953) (extracts to be specified)

Alf Ross On Law and Justice (1958) (extracts to be specified)

Karl Olivcrona, ‘Realism and Idealism’ 26(1951) N.Y.U. L. Rev. 120

Questions to consider:

Are terms like legal right and duty merely superstitious metaphysical fictions? 



Can an obligation be as closely intertwined with a feeling to be bound by the rule? Can’t
we acknowledge the existence of legal obligation without at the same time being bound
by it? 


Does one have to go all the way down the empiricist route as the Scandinavian Realists
go, in order to remain metaphysically austere? 
18 | J UR I S P R U D E N C E

IV

Kelsen: The Purity Theorist

Kelsen, along with Hart was one of the most influential theorists of the 20th century. You will
recall (from the introductory readings) that he has also been cited by Constitutional Courts in the
new commonwealth in cases dealing with coups. A lot of movement in legal thought was made
in responding to Kelsen. Kelsen pointed out that the command theorists were mistaken in
characterizing the law as a command of the sovereign backed up by threats. Why--because if that
were to be the case, there would be no difference between the law and a gunman’s command; but
there is a difference between the two. The law unlike the gunman’s commands is ‘normative’ an
‘ought’; and this ought is ‘binding’. Valid law, in short, is normative and binding. But what
makes this binding? It is not because some sovereign said so, or because it is morally
meritorious. It is binding because the law derives its validity from the grundnorm i.e. basic or
ultimate norm of the legal system. The basic norm lends unity to the legal system by endowing
the norms (rules of law) under it with both validity and normativity. But where does this
grundnorm come from? Kelsen is famously ambiguous. It is a postulate he argues.

Brian Bix, Jurisprudence: Theory and Context 57-67

Andrei Marmor ‘Pure Theory of Law’ Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/entries/lawphil-theory/

Readings:

Hans Kelsen, General Theory of Law and State (1945), Part One: Section I, II,IV Section X

Hans Kelsen, Pure Theory of Law (2nd ed. 1967), Section I, Section V,

Joseph Raz, The Authority of Law (1979), ch. 7

Finnis, ‘Revolutions and Continuity of Law’, in Simpson (ed.), Oxford Essays in Jurisprudence,
Second Series (1973)

Questions to consider:


 What is the nature of the legal ‘ought’? Is it a disguised moral ‘ought despite all of 
Kelsen’s protestations to the contrary? 

 How does the grundnorm originate? Does it not merely hang in the air? 
19 | J UR I S P R U D E N C E

Can legal obligation be thought of merely as a direction to officials? Also see how the old

(discredited) sanction theory rears itshead here. 
 Is Kelsen a natural lawyer after all?

Is there any point in tracing the grundnorm back logically? Is ignoring the realpolitik not
a problem with the pure theory? 
20 | J UR I S P R U D E N C E

Hart’s sophisticated legal positivism: Law as a System of Rules

Hart forms the core of this course. Many of the terms of the debate on 20th century philosophy
were set by Hart. Hart’s The Concept of Law remains one of the most influential texts of legal
philosophy in the English speaking world. Hart responded to his predecessors, Bentham, Austin,
Kelsen, the American Realists and the Scandinavian Realists in the eyes of many convincingly
demolishing their accounts. From that point he constructed his own influential account of law as
a system of rules, socially practiced rules. Students must keep this double ambition of Hart in
mind while approaching the text.

His work can be approached in three distinct but interlocking bits: His criticism of the sovereign/
command theory; His criticism of the account of legal obligation as comprising of either of
predictions (in the fashion of the American Legal Realists) or in feelings of being bound (in the
fashion of the Scandinavian Realists); His rejection of a postulated grundnorm at the helm of a
legal system. In the place of the models he discredited, he proposed a (some would say) sparse
(but no one would deny, elegant) model of the law as a system of rules which were firmly
grounded in social practice. For sake of convenience this can be split into three parts (though you
must note they don’t come neatly distinguished in the text of The Concept of Law)

The Legal System as a System of Rules

The law for Hart was a union of primary and secondary rules. Hart argued that law is the union
of primary and secondary rules. Primary rules impose duties on people to behave in certain ways.
Secondary rules, by contrast, pertain to the primary rules. Primary rules do not themselves settle
which of them meet the criteria of legal validity and thus are to count as primary rules in the first
place, or the solution in the event of a conflict between two or more primary rules. This is where
the secondary rules assume significance. They lend an element of dynamism to the legal system
of which they are a part by permitting it to solve problems that would arise were it to comprise
exclusively of primary rules alone. Hart identifies three types of secondary rules: rule of
recognition, adjudication and change. Rules of recognition provide conclusive methods for
ascertaining which primary rules meet the criteria of legal validity. Rules of change enable and
regulate the process of altering, and repealing primary rules. Rules of adjudication empower
some officials (courts) to make authoritative determinations of departures and violations. These
three types of rule exhaust the realm of secondary rules for Hart.
(Note: While reading Hart’s characterization of the legal system try to think how it might apply
to the Indian legal system)

Rules and Legal Obligation

As far as his account of legal obligation goes, Hart argues that a legal obligation is a statement of
what is required to comply with a rule. He seeks to walk a tight rope between many pitfalls
among them being extreme empiricism (like Bentham, Austin, American Realists); metaphysical
21 | J UR I S P R U D E N C E

ambition, or profligacy, if you will ( like the natural lawyers); and obscurity ( like Kelsen who
struggled to tell exactly what the nature of the legal obligation was).

Rules and Adjudication

Closely intertwined with Hart’s account of obligation and his criticism of American Legal
Realism is his theory of adjudication. His objective here again was to steer the middle path
between two extremes. One extreme saying there is really no law and whatever the judge does is
law (the American Legal Realists) which Hart called the nightmare and the other extreme where
all the judge does is merely apply the law at all times which Hart called the noble dream. Hart
argues that there are times when the judge applies the law. But then there could be gaps in the
law, in which case the judge makes law. This view of Hart’s has become one of the foundational
assumptions of legal positivism until it was challenged by one of his one former students Ronald
Dworkin (more on this later).

Questions to consider:


Is the middle path to legal obligation taken by Hart a sustainable one? 


What exactly is the distinction between primary and secondary rules? (Note: Hart seems
 to do many things with this distinction) 

Could there be valid law without courts? 


 Is Hart really a Scandinavian Realist with a dose of Kelsen? 
(See Alf Ross’ review of The Concept of Law 1961 Yale Law Review ) 


What is Hart’s account of the normativity (or authority) of the law? He keeps insisting on
its importance, but does he do enough to give an account of the law’s authority? 


Is Hart’s account of adjudication a sound one? Is the judge free to make any law
whatsoever? Are there constraints? (Note: This point assumes great significance in the
early Hart/Dworkin debate) 

Reading

H.L.A.Hart The Concept of Law (2nd edition Indian reprint) Chapters 4-7

Further Reading:

H.L.A.Hart, ‘Legal and Moral Obligation’ I.E.Melden ed. Essays in Moral Philosophy (1958)

H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), ch. 4 (‘American

Jurisprudence Through English Eyes: The Nightmare and the Noble Dream’)

P.M.S. Hacker, ‘Hart’s Philosophy of Law’ in Hacker & Raz (eds.), Law, Morality and Society
(Oxford 1977)
22 | J UR I S P R U D E N C E

N. Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004)

J. Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, American Journal of Jurisprudence
52 (2007)

Shivprasad Swaminathan ‘Schrodinger’s Constitutional Cat’ (Forthcoming: NLSIR 2013)

[On a Hartian analysis of declaration of unconstitutionality]
23 | J UR I S P R U D E N C E

VI

Ronald Dworkin: The Noble Dream

Ronald Dworkin was arguably Hart’s most influential critic and his debate with the Hartian
variety of legal positivism makes compelling reading, comprising as it does of interesting and
innovative arguments presented in a lucid style. Dworkin was a prolific philosopher and his
writing spans five decades—here we will focus on his writings from the late 70’s and early 80’s (
Taking Rights Seriously in particular) in order to ensure that there is a clear continuity between
the themes discussed in previous weeks. To be sure, we will also see, albeit briefly how this early
work forms the foundation for his later writing particularly Law’s Empire.

Dworkin began (See Model of Rules) by pointing out that Hart is wrong to think that a judge acts
a legislator when the rules run out. For Dworkin (the early Dworkin we are considering here) the
law had no gaps because apart from rules there were also principles. Dworkin said that Hart was
wrong in stating that in cases falling within the gaps, the courts have a discretion to make the
law, so that in such cases, involving judicial discretion, the court is not enforcing a pre-existing
obligation and as such, no party can have a pre-existing right to prevail in a case. He complained
that contrary to what Hart asserts, there is more to a legal system than just rules; there are
principles, policies and other binding legal standards, which operate alongside rules.

Later in Hard Cases (1975) Dworkin explores the notion of this binding morality further by
introducing the concept of the soundest theory of law and to demonstrate with greater precision
the role played by moral and political theory in its construction and application. But his
conception of morality was vastly different from that of the natural lawyers. According to
Dworkin, what is morally required could be discovered by finding out what best fits with the
soundest theory of law; the soundest theory of law being that which justifies all existing legal
materials of a legal system, namely, the institutional history, past laws and judicial decisions of a
legal system. Dworkin points out that the institutional history past laws and decisions create a
unique morality of their own and a judge in a hard case cannot be unmindful of that and he has to
follow in the footsteps of the past for that is precisely what morality requires. There is Dworkin
thinks one right answer in hard cases. Obviously figuring out what morality requires in any given
hard case (and finding the one right answer) is a Herculean task and for this Dworkin introduces
the famous fictional judge Hercules? Later in Law’s Empire (1986) he continues these themes
and weaves them a grand theory of interpretation. The same battle continues, but the weapons
change.

Questions to consider

Do judges always only declare the law? Do they never make new law? 


Aren’t the principles Dworkin talks about best understood as laws made  by someone at
some point? After all they do need a human agency to make them explicit.

Is there anything unfair in judges making law? Does it become problematic simply
24 | J UR I S P R U D E N C E

because such judge made law has to be retroactive? What is the problem with
retroactivity in cases where there is no law and disputes need to be settled one way or
another? 


Dworkin insists on fairness as being the ground for holding that new judicial decisions
must flow form the past ones. But is there anybasis for this? If coins have been flipped in
the past, does it require us to flip coins now?


Does Dworkin manage to discredit Hart’s picture of law as a system of rules with a rule
of recognition on its helm? 


Can a citizen armed with Dworkin’s theory know what the law is? Or does he have to be
 in possession of the cognitive and intellectual powers of Hercules?

Dworkin is against retroactivity, but does his account really avoid retroactivity? 


Do you think there is one right answer in controversial legal cases? 


Is everything in the law a matter of interpretation? Are there no easy cases? 



. What role should past decisions of legislatures and courts play in identifying the law in
novel cases? 



Do you think there is good reason to pay the attention Dworkin does to what judges say
they do? 
Couldn’t it be the case that the judges are often reluctant to admit that they make
the law?

Readings:

Ronald Dworkin, Taking Rights Seriously (1978) Chapters 2 and 4

Ronald Dworkin, Law’s Empire (1986) Chapters 3 and 7

N. Stavropoulos, ‘Interpretivist Theories of Law’, in Stanford Encyclopaedia of Philosophy

[online at http://plato.stanford.edu/entries/law-interpretivist/]

Further Reading:

J. Raz, 'Legal Principles and the Limits of Law'; A. Woozley, 'No Right Answer'; J. Mackie, 'The
Third Theory of Law' all in Ronald Dworkin and Contemporary Jurisprudence (1984):

Ronald Dworkin, ‘Thirty Years On’, Harvard Law Review 115 (2002), 1655, now published as
ch. 7 of R. Dworkin, Justice in Robes (2006)

Shivprasad Swaminathan ‘The Rise and Fall of Hercules’ 2007 SCC Journal 1
25 | J UR I S P R U D E N C E

VII

Justice

Justice is one of the aims of our Constitution. Our judges are referred to as Justices; and the courts
are meant to dispense justice. We have a Ministry of Law and Justice. Alleged offenders are not
merely punished but ‘brought to justice’. Few may need convincing that Justice is one of the ends
of the law. But what is Justice? When can a polity be said to be just? This is one of the hardy
perennials of philosophy (legal and political).

Reading:

Michael Sandel, Justice: What’s the Right thing to do? (Farrar Strauss and Giroux) Chapters 3 & 6.

Nigel Simmonds, Central Issues in Jurisprudence (EBC 2003) 39-50

Further Reading:

John Rawls, A Theory of Justice (1971), ch. 1

Robert Nozick, Anarchy, State and Utopia (1974), ch. 7 (Libertarian challenge to Rawls)

Ronald Dworkin, Taking Rights Seriously (1977), ch. 6

J. Gardner, ‘The Virtue of Justice and the Character of Law’, Current Legal Problems 53 (2000)

Questions to consider

 Does Justice require complete equality between parties?

 Can a criminal be tortured to retrieve information which will save hundreds of innocent lives?

 Is something that ensures the maximum welfare of the maximum number just?
26 | J UR I S P R U D E N C E

VIII

Critical Approaches to Law

What we have been studying here in this course has a distinct stamp of the analytical method.
There are other approaches to jurisprudence which begin from a different starting point, use
different tools and seek to emphasize on issues which are glossed over in analytical philosophy.
The Critical Legal Studies movement is among the most influential of such approaches; the other
is Feminist Jurisprudence.

Critical Legal Studies

The Critical Legal Studies movement challenges the received wisdom in legal theory and
practice. Critical legal theorists hold that logic and structure attributed to the law grow out of the
power relationships of the society. The law, according to them, serves to hold in place the
interests of the party or class dominant in its formation and is a set of dogmas, prejudices even,
that legitimize the these deep-rooted injustices of society. As Robert Gordon one of the
prominent proponents of CLS argues, ‘what lies behind the seeming order of legal decisions is a
patterned chaos, and the aim of critical legal scholarship is in part to uncover the patterns’.
The influence of 19th century German thinkers like Karl Marx and Max Weber is visible here.
Also clearly discernible is the influence of American Legal Realism with their fight against
formalism and emphasis on the social underpinnings of the law. Remember, Holmes’s famous
statement, ‘the life of the law is not logic but experience’. The Critical Legal Theorists extend
this line of thought.

Reading:

Robert Gordon, ‘Law and Ideology’ http://www.tikkun.org/nextgen/wp-

content/uploads/2011/12/Law-and-Ideology.pdf

Peter Gabel, ‘Reification in Legal Reasoning’ (1980) Vol. 3 Research in Law and Sociology 25
Roberto Unger, ‘The Spell of Rationalizing Legal Analysis’ in What Should Legal Analysis
Become (1996) 34-41

Feminist Jurisprudence

“One is not born, but rather becomes, a woman.”

--Simone de Beauvoir, The Second Sex

27 | J UR I S P R U D E N C E

“A feminist is anyone who recognizes the equality and full humanity of women and men.”

-Gloria Steinem

Feminist jurisprudence and the Critical Legal Studies movement emerge from the same set of
concerns towards the received wisdom in legal theory and practice. The Feminist legal theorists
share with the CLS movement their disquiet about the logic and structure of the law and its
propensity to legitimize illegitimate social hierarchies.

Readings

Rosemary Tong, Feminist Thought: A more comprehensive introduction (2013).

Narayan, Uma, The Project of Feminist Epistemology: Perspectives from a Non-western

Feminist. In McCann and Kim (Eds) Feminist Theory Reader. New York: Routledge (2003).

Ann Scales ‘The Emergence of Feminist Jurisprudence: An Essay’ (1986) 95 Yale Law Journal
1373-1403

Robin West ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1

Anuj Garg v. Hotel Association of India (2008) 3 SCC 1.

State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors. (2013) 9 SCALE
47.
28 | J UR I S P R U D E N C E

IX

The Moral limits of the law

What are the moral limits of the law? What are the kinds of conduct that the law ought to
regulate? Can the law stop you from doing something because it is immoral even if it causes no
harm to another? This question has assumed great urgency in India in the context of the recent
recriminalization of homosexuality by the Supreme Court of India. Here we will discuss the
debate between liberalism and perfectionism. Consider the following propositions:

I think, therefore, that it is not possible to set theoretical limits to the power of the State to
legislate against immorality. It is not possible to settle in advance exceptions to the general rule
or to define inflexibly areas of morality into which the law is in no circumstances to be allowed
to enter.
— Lord Devlin

‘The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others’…

– John Stuart Mill

Which of these propositions would you support? This issue also forms the fulcrum for the
famous Hart-Devlin debate. Shades of the debate can also been seen in cases such as Brown
[1993 UK] and Naz Foundation

Readings:

Suresh Kumar Koushal V Naz Foundation [2013]

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070

Naz Foundation V Government of NCT 160 Delhi Law Times 277

The harm principle: J.S. Mill, On Liberty (1859), chs. 1, 4 and 5

P. Devlin, The Enforcement of Morals (1965) chs. 1, 5, 6 and 7;

H.L.A. Hart, Law, Liberty and Morality (1963)

J. Raz, The Morality of Freedom (1986), chs. 14 and 15

R. Dworkin, ‘Do We Have a Right to Pornography?’ in A Matter of Principle (1985)

J. Stanton-Ife, ‘Limits of Law’ (2006), in Stanford Encyclopedia of Philosophy [online at

http://plato.stanford.edu/entries/law-limits/]
29 | J UR I S P R U D E N C E

Fundamental Legal Concepts

‘Concepts’ to lawyers are what surgical instruments are to surgeons. You will be introduced to
the conceptual tools a lawyer cannot do without. To appreciate legal relations accurately it would
be useful to begin with Wesley Hohfeld’s typology of jural relations. The layman talks of the law
in terms of ‘rights’ and ‘duties’- as if the two concepts tell us everything that is to be known
about all possible legal relations. However, the lawyer realizes that the concepts of ‘right’ and
‘duty’ obscure more than illuminate; they are vague shorthands for some very specific
legal relations. On reading Hohfeld you will find that jural relations can be classified into:

 Claim right 
 No right 
 Duty 
 Privilege 
  Power 
 Disability 
 Immunity 
 Liability 

You will be taught to use Hohfeld’s typology by applying them to legal and factual situations.
We will aim to analyze legal concepts like property, agency, unconstitutionality etc into
Hohfeldian terms. Hohfeld was mainly concerned with private law and hence did not pay much
attention to public law. We will aim to see how Hohfeld’s account applies to public law.

Reading:

W.N. Hohfeld. "Some Fundamental Legal Conceptions as Applied in Legal Reasoning,"

23 (1913). Yale Law Journal 16

W. Cook ‘Hohfeld's Contribution to the Science of Law" 28(1918) Yale Law Journal 721 13

A.Corbin "Legal Analysis and Terminology", 29 (1919)Yale Law Journal 163

30 | J UR I S P R U D E N C E

XI

Law and Sexuality

“These are dizzying confusing times to be talking about sexual diversity. We are witnessing
change at an unprecedented pace…it is perhaps inevitable that this is provoking kicks and
screams of violent outrage from some quarters.”

Vanessa Baird.

This module on law and sexuality will explore the notions of heteronormativity- how the
idea of a binary is created and fostered. And ultimately, how, life as we experience it, is a
gendered experience.

Readings:

Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in
Carole Vance, ed., Pleasure and Danger (Routledge & Kegan, Paul, 1984. Also reprinted in
many other collections, including Abelove, H.; Barale, M. A.; Halperin, D. M.).

Naz Foundation v. Union of India 160 DLT 277 (Delhi High Court).

Suresh Kumar Koushal and Another v. Naz Foundation and Others Civil Appeal No.
10972/2013 (Supreme Court).

Ismat Chugtai, Lihaaf available at http://www.manushi-

india.org/pdfs_issues/PDF%20file%20110/9.%20Short%20Story%20-
%20Lihaaf%20%5BThe%20Quilt%5D.pdf.