LM: INTRODUCTION

MANINI
• The words "legal" and "method" are combined to form
the phrase "legal method.“
• In everyday speech, the word "method" refers to a
process or to the attribute of being well thought out,
ordered, and applied.
• The adjective "legal" denotes something that has to do
with the law. For law to be most effectively used as a
tool of social control, it must be understood how law
operates in society using specific ways, or in
accordance with specific processes
OBJECTIVES
• To give a proper understanding of the nature, functions, breadth
and diversities of law.
• To introduce certain fundamental concepts and terms which
students are bound to come across in their lectures, statutes, legal
treatises or discussion in 'learned' circles.
• To expose students to the reasoning method of lawyers, legislators
and judges in the making, execution and interpretation of law.
• To lay a foundation for the ability to construct arguments about the
facts of a case and how and why a particular authority should or
should not be applied in that case; an
• To deepen students' knowledge, understanding and application of
various legal rules.
SCHOOLS OF JURISPRUDENCE
• PHILOSOPHY OF LAW
• ANALYTICAL
• NATURAL
• HISTORICAL
• SOCIOLOGICAL
• REALIST
• In Austin’s Analytical Approach, his effort is to gain a precise and
in-depth understanding of Fundamental Concepts of legal
reasoning.
• He chooses to exclude all external influence or even history and
completely indulges in gaining access to first principles of law as
it is, regardless of its “goodness” or “badness” or “moral
worthiness”.
• This approach leads to reading of “Law as it is” or “Positum”
(and not the ideal law) also called “Positive Law”, advocated by
Austin in his Theory of Legal Positivism.
• From now, we have a fair idea of what is Austin’s analytical
approach which gives us the theory of legal positivism.
JOH AUSTIN- ANALYTICAL SCHOOL/
LEGAL POSITIVISM
• LAW AS IT IS.
• John Austin (1790–1859) was born in the United Kingdom. He
was the founder and father of the Analytical school of
law. He is known for his theory of sovereignty and legal
positivism mentioned in his book “Province of Jurisprudence”.
• “Law is the aggregate of rules set by men as politically
superior, or sovereign, to men as politically subject.”
• In other words, he says, laws are man-made rules by
sovereign imposed upon the society it governs. He equates a
law to a “command” by a body which is politically higher.
• “Law is a command of the sovereign backed by a
sanction.” Breaking this definition into its fundamentals:
–
1.Command, of
2.Sovereign, which if not followed attracts
3.Sanction.
• Thus we have following essentials
• Sovereign, which makes a
• Command, which imposes a
• Duty, which IF NOT followed calls for
• Legal sanction.
• According to Austin, every political set up has a sovereign power which is
habitually obeyed by the people in the society. There is only one sovereign
in the society and it can be a single person or a group. It is the sole source
of power and creator of laws and thus there can be no legal limits or “de
jure” limits to its power. There can, however, be “de facto” or physical
limits since the extent of the coercive force of the commands and their
obedience by people have practical limits.
• A good example is a well-known quote of De Lolme- “British parliament can
do anything but make a woman a man and a man a woman.”
• The only boundaries of sovereign power are physical limits. If read into an
existing situation, he refers to statutes, legislated by the parliament or any
parallel body, which has to be obeyed by the people, regardless of how the
statute is.
• “Command”
• Command”
• His definition is also called “Command theory” or
“Imperative theory” of law.
• “Imperative Law is a rule which prescribes a general
course of action imposed by an authority which enforces
it by superior power either by physical force or any
other form of compulsion.
• The command levies a “legal duty” on those who are
politically subject to the “commander” who is
sovereign. Every duty supposes a command by a
sovereign by which it is created.
• It is implied in the theory that this sovereign has with
itself a power to punish or penalize for noncompliance
of laws. This penalty or punishment imposed is called
Legal Sanction. The dread of legal sanction, as an evil
consequence in case of disobeying, is the motivation
behind one’s adherence of law and thus is a requisite
part.
How does it help us out?

• By keeping law aloof from all external factors, Analytical Jurisprudence takes for
granted, the history and development of the Legal system and concerns itself with
basic concepts as the legal system is. It spares the reader from redundant
information which might cloud his judgement.
• It lays down a systematic explanation of actual facts of law and purely law. The
first job is to lay down a scheme following which analysis is to be performed. Then
the laws are broken down to fragments, each of which is separately explained. By
keeping them isolated from ethical concerns, morality, and justice, an accurate
meaning of the law is established.
• The approach also helps in the establishment of the relationship between two or
more concepts in a more lucid and fundamental manner.
• This approach is often lauded for bringing precision, simplicity, and clarity in
legal thinking. It gives clear, definite and scientific terminology. He removed many
false notions which had obscured the meaning of legal terms.
• He also made it very clear that the law is, after all, at the mercy of the all-powerful
and condescending state and not the god or religion or even morality.
• 1. CUSTOMARY LAW
• 2. CONSTITUTIONAL LAW
• 3. PRECEDENT
• 4. SANCTION- CRIMINAL LAW ALONE
JEREMY BENTHAM: An Introduction
to the Principles of Morals and
legislation
• Bentham is often regarded as the genuine founder of
legal positivism.
• Bentham proposes two types of jurisprudence:
• a) Expositorial jurisprudence, which explains what law
is, and
• b) Sensorial jurisprudence, which deals with the
utilitarian concept.
• “law everywhere was regarded as the legislative will of
a sovereign”
• Law, according to him, is not something found in
nature. It is a social construct that legislatures have
created.
• Bentham believed that a legal system based only on a
sovereign’s expressed legislative will would provide
better and more definite laws than the common law
system.
LIMITS OF JURISPRUDENCE DEFINED
• His inclination for the legislation was based on
utilitarian moral philosophy, which he firmly believed in.
• According to Bentham, a law is “an (assemblage of
signs) (declarative of a volition) (conceived or adopted
by the sovereign in a state), (concerning the conduct to
be observed in a certain case) by a (certain person or
class of persons), (who in the case in question are or are
supposed to be subject to his power): such volition
trusting for its accomplishment to the expectation of
certain events which it is intended that such declaration
should upon occasion be a means of brinkmanship.”
• Nature has placed mankind under the governance of two sovereign
masters, pain and pleasure[3]. It is entirely to them to both
suggest what we’ll do and decide what we shall do. The standard of
good and evil is fastened to their throne on the one hand, and the
chain of cause and effect is fastened to their throne on the other.
• Bentham was satisfied that a legal system whose rules are derived
only from the directives of sovereign authority is preferable to the
common law system when judged by the criterion of public utility.
In contrast to the former, which creates clear, authoritative, and
specific legislation, the latter produces a convoluted and irrational
mass of judgments that represent the interests of lawyers but not
the public. Bentham was an outspoken supporter of the codification
of all laws.
HLA HART
• BOOK: CONCEPT OF LAW
• To Hart, law is system of rules. According to him:
“Where there is law, the human conduct IS non-optional
or obligatory.
• Thus idea of obligation is at the core of a Rule.
• According to him, rules are concerned not with what
happens but with what is to be done.
• Rules are imperative or prescriptive rather than
indicative or descriptive.
• Rules are different from commands. Commands
normally call for one unique performance whereas rules
have a general application and demands repeated
activity.
• Rules are of two kinds:-
· Primary Rules: These rules either grant rights or
impose obligations on the members of the society
· Secondary Rules: Secondary rules are those that
stipulate how and by whom the primary rules may be
formed, recognized modified or extinguished.
LON FULLER
• Nuremberg trial and jurists like Lon. L. Fuller would have expected
from persons who were obliged to commit atrocities under the orders
of Nazi party and obey the laws of Hitler against the laws of humanity.
• Fuller is in total agreement with Gustav Radbruch that it was the
excess of positivist thinking that had made Nazi regime possible.
• Command of the sovereign had become the final word in deciding its
legal character.
• Fuller developed his theory on criticism of Hart’s theory of
independence of legality from any criteria of morality.
• For Fuller law has to contain both inner morality and substantive
morality in order to pass the test of legality.
• In most cases adherence to former would guarantee adherence to
latter too.
• Inner morality of law is concerned with propriety in law making
process which would ensure that only just laws are made by the State.
• 1. Laws should be general in character 2. Law should be made public:
Rex initially keeps these laws secret from the public. But public resents
this secrecy as they would like to know in advance the laws which would
make their actions illegal so they can avoid it. 3. Laws should be
prospective in nature. Subjects should know the laws in advance. 4. Laws
should be clear and understandable 5. Laws should not be self-
contradictory 6. It should not ask to do impossible: “To command what
cannot be done is not to make law; it is to unmake law, for a command
that cannot be obeyed serves no end but confusion, death and chaos.”4
7. It should not be changed frequently: “A law that changes every day is
worse than no law”5 8. There should be congruence between official
action and declared rule.
VON SAVIGNY
• “Law is founded and not made”, the adage is the
premise of the historical school of law.
• The historical school of law was established by Friedrich
Karl and Von Savigny.
• As per this school, the law is the formation of
connections between the (nearby circumstances) and
(states of individuals), the law isn’t established by any
(political prevalent) yet found and given by individuals.
NATURAL LAW CRITIQUED
• It is dubbed as unreal, imaginary and unhistorical.
Second, the natural law principles of liberty, equity and
fraternity were no more sacrosanct as they were being
violated by French revolutionaries themselves by
enslaving different communities of Europe.
• 1. NAPOLEAN
• 2. CODE FOR UNIFYING GERMANY
• PROF THIBAUT
• “law develops with the development, and remaining
with the quality of individuals, lastly diminishes as the
country loses its nationality”.
• The wellspring of law is “Volksgeist”
• Law is found and not made
• Law can’t be all inclusive or general in character
• Law can be improved through verifiable
examination:
• Sir Henry Maine was a British comparative jurist and
historian.
• He is famous for the thesis outlined in his book
Ancient Law that law and society developed ‘from status
to contract
• 1. Law made by the ruler under divine inspiration:
• 2. Customary Law:-
•In the next stage, the office of the King or Judge was inspired by the heads of the
councils. The priest became a repository of law that circulated the King’s power and
claimed the sole monopoly of knowledge. Therefore, the priest class tried to preserve the
customs of race or caste intact.
• 3. Knowledge of law in the hands of Priests:-
•In the next phase of the development of the law, in order to implement and execute the
law inspired by the Priest class, the King’s right claimed to be learned in law as well as in
religion. The priest class claimed that they remembered the rules of customary law
because the art of writing was not developed till then.
• 4. Codification:-
•Then comes the era of codification marks the fourth and perhaps the final stage of the
development of law. With the discovery of the art of writing, a section of scholars and
jurists came forward to condemn the authority of the priests as law officials. He
advocated the codification of the law to make it accessible and easy to know.
•According to Henry Maine societies are two types; Progressive Societies and Static
Societies.
•Progressive Societies:-
•According to Henry Maine, those societies which go beyond the fourth stage as
developing their laws, by new methods are called progressive societies. Progressive
societies develop their laws by the three methods namely; Legal Fiction, Equity, and
Legislation.
•
•Static Societies:-
•According to Maine, when the primitive law has been embodied in a code, there is an
end to its spontaneous development and such communities or societies which do not
modify or go beyond the fourth stage are called static societies.
ROSCOE POUND
• According to Pound, "Law is social engineering which
means a balance between the competing interests in
society," in which applied science are used for resolving
individual and social problems.“
• "social" denotes a collection of individuals who come
together to form a society, while "engineering" refers to
the practical application of scientific principles through
the use of tools and devices. Pound draws a parallel
between the work of lawyers and that of engineers.
• Private Interest
A. Also known as individual interests, are assertions, demands, or wishes made from the perspective of the person, according to Pound. According
to Pound, individual interests include:
Personality- interest of personality comprises of interests in:

A. The physical person,

B. Willpower,
C. Integrity and Reputation,
D. Sensitivities and Privacy,
E. Beliefs and Opinions.

B. Domestic relationships:
It's critical to distinguish between an individual's interest in a domestic connection and the interest of society in structures like the family and
marriage. Individuals with the following interests:

A. husbands and wives,

B. parents and children And
C. marital interests.

C. Substantive interest, which includes:

A. Property Interests,
B. Succession, Disposition Of A Will,
C. Industry And Contract Freedom,
D. Promised Benefits
E. Favorable Interpersonal Relationships,
F. Associational Freedom, And
G. Job Stability
• Interest Theory
• Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the
overlapping of the interests, he put boundaries and divide the kinds of interests.
• Individual Interest
• These are claims or demands involved from the standpoint of the individual life which
consists of interest of personality, interest in domestic relations and interest of substance
• Public Interest
• These are the claims or desires asserted by the individual from the standpoint of political
life which means every individual in a society has a responsibility towards each other and
to make the use of things which are open to public use. Interest in the preservation of
state
• Social Interest
• These are the claims or demands in terms of social life which means to fulfill all the
needs of society as a whole for the proper functioning and maintenance of it. Interest in
the preservation of general peace, health, security of transaction’s, preserving social
institutions like religion, politics, economic
Eugen Ehrlich

• Eugen Ehrlich was considered as the founder of Sociology of

law.
• Sociology of law is the study of law from the sociological
perspective.
• Ehrlich considered society as a main source of the law. And
by society, he means “association of men”.
• Ehrlich had written that “Centre of gravity of all legal
developments is not in legislation or judicial decisions but in
society itself.”
• He argued that society is the main source of law and better
source of law than legislation or judicial decision.
• If one wants to study the living body of laws he must
turn to marriage contracts, leases, contracts of
purchase, wills etc.
• The real law consists not of prepositions but of legal
institutions related by the life of the groups within
society.
• To Enrlich a jurist should study the factory, the bank, the
railroad; the great landed estate, the labor union the
association of employees etc. to know the real law.
Article 13 (3)
• Article 13 (3) says:

• “13. Laws inconsistent with or in derogation of the fundamental rights:

• (3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.”
• HC Narayanappa vs. State of Mysore
• Section 68 C and 68 D of the Motor Vehicles Act, 1939
• Part IV-A : Entry of Governments into transportation business
• S.68 C: Public Interest
• 68D- PROCEDURE
• A. 298 Constitution: executive power of the Union and State as
extending to the carrying on of any trade or business- subject to law
made by the parliament or state legislative assembly
• Article 19(6) – immunity from 19(1)(g) in case any law made by the
State.
INDIAN YOUNG LAWYERS
ASSOCIATION VS KERELA
• A Constitution bench of the Supreme Court is currently
hearing petitions challenging a custom in the
Sabarimala temple in Kerala that prohibits women in the
age group of 10 to 50 from entering the shrine.

• RULE 3(b) Kerela Hindu Places of Worship Act, 1965

• 10-50 years
• The petitioners have argued that this custom patently
violates equality guaranteed under the Constitution as it
is prejudiced against women and their right to worship.
• The lawyers have also invoked Article 17 of the
Constitution that prohibits untouchability. The
restrictions placed on women are based on the concept
of pollution, which is similar to the caste prejudice that
Dalits face in rituals and worship.
• Anything impacting an individual is a ‘law’.
The State Of Bombay vs Narasu
Appa Mali,
• In Narasu Appa Mali, the Bombay High Court ruled that personal
laws cannot be set aside even if they were in violation of
fundamental rights.
• The Narasu Appa Mali case pertained to a petition moved by a
Hindu man who was convicted under the anti-bigamy law. Narasu
Appa Mali argued that prohibition of bigamy was enforced only for
Hindus and did not apply to Muslims. This was blatantly
discriminatory and violated the concept of equality before law. he
said. Therefore, he petitioned the court to set aside the law.
• In doing so, the court kept personal laws beyond Article 13 of the
Constitution, which states that all laws in force in the country when
the Constitution was adopted shall become void if it derogated
fundamental rights.
• The petitioner, Naveen Jindal, was the Joint Managing
Director of a factory, whose office premises had been
flying the national flag of India.
• Government officials did not permit him to do this, citing
the Flag Code of India.
• Mr. Jindal filed a petition before the High Court arguing
that no law could forbid Indian citizens from flying the
national flag and, furthermore, the Flag Code of India
was only a set of executive instructions from the
Government of India and therefore not law.
• The High Court allowed the petition and held that the
Flag Code of India was not a valid restriction on the
right to freedom of expression under Article 19 of the
Indian Constitution.
• The High Court observed that, according to Article
19(2), the only valid limitations on this right were those
that were contained in statute.
• In cases concerning the regulation of the flying of the
national flag, such limitations could be found in the
Emblems and Names (Prevention of Improper Use) Act
1950 or the Prevention of Insults to National Honour Act
1971.
• Before proceeding further, the Court considered the
question of whether the Flag Code of India constituted
“law” within the meaning of Article 13 of the
Constitution, which provided the definition of “law” in
the context of fundamental rights. The Court found that
the Flag Code of India was merely executive instructions
and could not be considered “law”. Consequently, the
Flag Code of India could not be used for the basis of a
statutory right to fly the national flag in India.
• The functions of law are to maintain social order, protect individual rights, resolve disputes, and promote justice. Law is
a set of rules and principles that govern the behavior of individuals and groups in society. Law is enforced by the state
through various institutions, such as courts, police, and legislatures. Law can also be influenced by customs, traditions,
morality, and religion. Law serves several purposes, such as:

• - Maintaining social order: Law helps to regulate the interactions and relationships among people and organizations,
and to prevent or deter harmful or undesirable actions, such as violence, crime, or corruption.
• - Protecting individual rights: Law recognizes and safeguards the fundamental rights and freedoms of individuals, such
as the right to life, liberty, property, privacy, expression, and equality. Law also limits the power of the state and other
authorities over individuals, and provides remedies for violations of rights.
• - Resolving disputes: Law provides a framework and a process for resolving conflicts and disagreements among parties,
such as individuals, groups, or states. Law establishes the rules of evidence, the standards of proof, and the procedures
for adjudication. Law also offers alternative methods of dispute resolution, such as negotiation, mediation, or
arbitration.
• - Promoting justice: Law aims to uphold the values and principles of fairness, equity, and impartiality in society. Law
seeks to ensure that everyone is treated equally before the law, that no one is above the law, and that no one is denied
access to justice. Law also strives to balance the interests and needs of different groups and individuals in society, and
to address the root causes of social problems.
• Social Change: – A number of scholars agree about
the role of law in modern society as instrument to social
change. Law enables us to have purposive, planned,
and directed social change. Flexibility of law provides
some measure of discretion in law to make it adaptable
to social conditions. If law is rigid and unalterable, it
may not respond to changes spontaneously which may
lead to resentment and dissatisfaction among the
subjects and may even result into violence or
revolution. Therefore, some amount of flexibility is
inevitable in law
• It covers a number of important legal topics, including family law, contracts, property,
equity, and trusts.
• Contract law: the laws that govern the formation, performance, and termination of
contracts. Contracts can be oral or written, and they can be simple or complex. Some
common contract terms include offer, acceptance, consideration, breach, and damages.
• Tort law: the laws that govern civil wrongs (torts) committed by one individual against
another. Torts can be intentional or accidental, and they can result in personal injury,
property damage, or death. Some common tort actions include negligence, defamation,
invasion of privacy, and product liability.
• Property law: the laws that govern the ownership and use of property. Property can be
tangible (such as land, cars, and furniture) or intangible (such as patents, copyrights,
and trademarks). Property law includes real estate law, contract law, and tort law.
• Family law: the laws that govern marriage, divorce, child custody, and other family
matters. Family law is a branch of private law that deals with civil matters. Family law
includes divorce law, child custody law, and adoption law.
• Remedies and Punishment
• These categories of remedies and punishments under private law include:

• Restitution The party that is accused of breaking the law is required to put
everything back in the same condition as if the violation never occurred.
• Damages/Compensation The court shall fix the amount to be given as
compensation for the real injury or loss caused.
• Returning enrichment The party who received an unfair benefit (unjust
enrichment) must make restitution.
• Specific Performance The party is required to perform the breach specifically
or forfeit something else.
• Legal administration
• Governing principles
• Penal code
• International laws; municipal laws
• The mentioning of ‘justice’ in the preamble intends not only
to create an environment in which social, economic and
political justice is assured but also to work positively against
any form of discriminationexisting in the society based on
caste, community race, religion or otherwise.
• The ideal of justice – social, economic and political - was
adopted from the Russian Revolution.
• Justice has been developed as a result of different points of
view.
• The Indian concept of justice was spread by ancient Indian
philosophers like Manu and Kautilya.
• Justice word originated from the French word ‘Jostice’, it
stands for rightness, equity, and the enforcement of the
law.
• The idea of justice enshrined in the preamble of the
Indian constitution is also reflected in Articles 14, 15,
16, and 17.
• All of these articles are included in the third section of
the constitution, which guarantees each citizen certain
fundamental rights.
• Article – 15(1)
• Discrimination based on religion, ethnicity, caste, gender, or place of birth
is forbidden. The state has a responsibility to provide for the needs of
women, children, Schedule Caste & Schedule Tribe peoples, and any
classes of citizens who are socially or educationally marginalized.
• Article 16: equality in appointment in public sector jobs.
• Article – 22
• In specific circumstances where Natural Justice is present and is within its
purview, it grants exceptional rights to those who have been arrested.
• Articles – 32 and 226
• For violations of Legal Rights and fundamental Rights, they collectively
lay out constitutional remedies. They can be used by issuing the proper
Writs, Directions, and Orders.
• Articles – 23 and 24
• It contemplates the Right against Exploitation. Article 24, particularly, prohibits an
employer from employing a child of lesser than 14 years of age in any factory or
mine or any other Hazardous Employment.
• Article – 38
• It emphasizes the State to secure a social order for the promotion of the welfare of
the people by effecting Social, Economic and Political Justice.
• Article – 39A
• It emphasizes that State shall secure the operation of the Legal System promotes
Justice on a basis of equal opportunity and Free Legal Aid be provided to ensure that
opportunities for securing Justice are not denied to any citizen because of economic
or other disabilities.
• Article – 41
• It emphasizes, Right to work, the Right to education and the Right to public
assistance in certain cases.
• Article 39A of the Indian constitution contains provisions
relating to "Equal Justice and Free Legal Aid."
• The Constitution of India has solemnly promised to all
of its citizens justices-social, economic, and political;
liberty of thought expression, belief, faith, and worship;
equality of status and of opportunity; and to promote
among the all fraternity assuring the dignity of the
individual and the unity of the nation.
• Social Justice
• Social justice denotes equal treatment of all citizens without any
distinction based on caste, colour, race, religion, sex and so on.
• It means the absence of privileges to any section of the society and at
the same time making provisions for the improvement of backward
sections (SCs, STs and OBCs) and women.
• Due to these differences, no person should be denied the social
circumstances required for development.
• The practice of social equality serves as the foundation for the idea of
social justice. In other words, it is advocating equality along with equity.
• The Supreme Court of India declared social justice and judicial review to
be two fundamental elements of the Indian constitution in the case
of S.R. Bommai v. Union of India.
• Economic Justice
• Economic justice denotes non-discrimination between people based on
economic factors. It entails the abolition of glaring wealth, income, and
property disparities.
• Everyone should be compensated equally for equal work, and everyone
should have the opportunity to earn a living.
• Individuals shouldn't be treated differently based on their economic status.
No one should be denied a chance because of their financial situation.
• Any person's lack of opportunities should not be determined by their
economic situation.
• Economic justice is the elimination of poverty through the augmentation of
national wealth and resources and the equitable distribution of this wealth
among all participants in its creation.
• Political justice is that everyone has an equal, free, and
fair opportunity to engage in politics without prejudice.
• It means that everyone has equal access to political
offices and equal involvement in government processes.
• The government's operations ought to be fair from a
political perspective. Any person should be treated
equally regardless of their political standing and should
not receive any benefits.
• Regardless of a person's political affiliation, every law
should apply to them equally.
• 1. Right to vote 2. Right to contest elections 3. Right to
form political parties 4. Right to criticise the
government.