20.07.2026
WE WILL BE COVERNG A FEW TOPICS WHICH WONT BE COVERED IN BA
We’ll start with the ancient stuff- that isn’t part of the course outline- but will help in answering questions
Very theoretical subject, not case driven like cyber law; more “boring” (his words not mine)
We will be getting spoilers for obsession and backrooms- HIS WORDS NOT MINE (parts of the
movies will be used as an example)
Whether or not bear had a moral duty in the movie? The lines between morality- natural law theory
Can bear kill nikki when she asks him to? With a positivist perspective, can he even kill her and get away
with it?
Keep updated with the current affairs such as sonam Wangchuk protest etc
Some questions are fictional, like HP; but others about bonded labourers and freelancers
The module is a thousand pages long
We should’ve paid attention in legal methods classes- (so that we could understand consti better?)
Legal methods is the base of jurisprudence- what methodology youre supposed to follow in law
Diff between methodology and methods
Critical legal theory- not like the natural or the positivist law school; they are standpoints from which you
are viewing a particular thing
People interpret law differently based on their background and views
Feminism v modernist- they will have very different takes
Keep an open mind- engage in the discussions- if you don’t engage you agree with the person speaking
Internals have 2 components- one is novelty- the topic selection is purely up to you, the title; until then
there will be no discussion
Internal mark division:
1. project: 30 m- 2 marks for Statement of problem; 2 m for research questions/objectives (either
question or statement format- up to us); methodology (4 m); characterization and main body of
the project (20 m)
2. Class debate: 10 m- teams of 8, four on each side- 1 topic. Will be conducted in the CDPS
classes. Each person will be assigned a different theorist- you have to present their perspectivehave a strong grip on each theorist- you have to know what the other person might say- only one
rebuttal is permitted- max time for 1 person to make their point is 5 minutes; rebuttals get 2
minutes; not really a back and forth- pick the fun topics because youll get bored otherwise while
debating (he means pick the controversial stuff like rise of hitler)- you will know what scholar
you have to represent 7 days before the debate at least
Don’t try to be a good person while writing your project- you have to just show how the theory applies to
the example chosen; keep it as doctrinal as possible, avoid empirical stuff
The college professors school teachers warned us about: “I don’t mind if you fight and holler, more
entertainment for me”
We could start with inception of natural law- Socrates, Aristotle, stoic school; then move on to the
positivism
Natural sciences are closer to positivist school than to the natural law school- ancient, medieval revival,
modernist/contemporary revival
Blog by vijay sir about critical race theory
Critical legal studies is NOT a theory- parts of the CLS make up schools- like feminist theory and race
theory; it will have certain characteristics and we will see if we cant come up with newer schools of
thought
Marxist- superstructures in the Frankfurt school
We will see how all these schools affect CLS
Read about asking women’s question in the domain of legal theory
“asking the law question by Margaret davies” and “asking the womens question by Margaret davies”
He will send the books, start reading “asking the womens question” right away
We wont complete units 7,8,9 but its mostly doable and we will probably know them anyway
Contradictions- as part of legal rights
NO DIRECT QUESTIONS IN THE PAPER- just like cyber law itll be a complex question
21.07.2026
Why do you think that jurisprudence is boring? (I don’t, but okay)
Its theoretical, philosophical, unreal- but boredom itself is subjective
We study objective laws usually- objective positivist law- but now we deal with subjective laws based on
different perspectives- an example of this is temporal planes changing laws, different jurisdictions
changing laws
Boredom itself is not bad;
An objectively high academic standard, if it is unamendable even when it doesn’t perform according to
expectations, you create stagnancy through an objective standard
Hindu marriage act, beyond 2005 there were a lot of sociological changes- they influenced whether a
particular law needs change, and how it changes
One of the methodologies used for law/social sciences- grounded theory- integral for critical legal
thinking- to look into reality from different perspectives is needed
Difference between theories and postulates, diff between tested theories or theories in their purest form
Theories in the purest form: is it a futile exercise to try to catch something uncatchable? Or should we
run behind the theory hoping to even get 10 percent of the theory? Not necessary to find in books or
classrooms- can come from anywhere- the knowledge we have is a crystallised form of theory- scientific
theories for example go through changes- principles of nature, before newton, was different. Calculus did
not even exist since gravity was not known- now eventually it has crystallised into knowledge today
Something abstract doesn’t mean it can never be practical or that it cant become natural science. But what
about legal science?
Jurisprudence- the art of the law? Or the broader umbrella which covers something called juriscience?
Juriscience can be seen as science and law, tech and law, or positive law- different ways to see it
Without theory you cant have clearly definable objectives- you consider crystallised knowledge and then
come up with a project or an objective
Is theory static or dynamic? Four different schools of thoughts have different ideas regarding adultery“net harm principle”
Gay marriage, gay relations- behind closed doors, net harm principle; what if marital rape? Yes its behind
closed doors, comes under personal liberty; but there is a harm being caused to someone, so the law will
change regarding that- there is net harm being caused
The roman catholics had a perception, now they no longer fully influence Christianity, we don’t use the
word “they have progressed” in context of natural law/religious law; something that may seem fair to
someone is unfair to others
Bentham’s ideology- greatest good for the greatest number- not really number of people- its about the
welfare nature of law
Static nature can be defined as “its only static in that particular point of time/context”. Theories
themselves are never static, only statements are static, theories keep changing
John locke’s labour theory, Immanuel kant, hegel- none of them mentioned IP that’s because they existed
prior to IP being such a big deal- not grounded in these contexts- they were talking about pure
proprietary rights/traditional property
William fisher- we started to apply traditional laws to new IP
There will always be a possibility that you apply an old theory in a new context
Whether backrooms should be considered folklore or not- what is folklore? Stories that pass on from
generations to generations, traditionally- pass from one person to the other, doesn’t have an identifiable
origin- backrooms was called as digital folklore
Backrooms came to be because of a 2009 reddit post- doesn’t have an identifiable origin- passed on from
one person to the other- there is a cult following now- the term folklore remains the same but the
application starts differing
The actual meaning of words- there can be alterations in the meaning of words- “boring” as a term can
have many other means- it can also be “digging”; but it never occurred since we were having a discussion
in a different context- context is how we will completely understand a theory- cant be crystallised into
knowledge, therefore cannot help with determining an objective
Linguistics- ann wagner in taylor & francis, “linguistics of law” series- open access- different ideas of how
linguistics work- language, words, nomenclature, communication
You either accept or decline an offer on whatsapp- does a thumbs up emoji amount to linguistics? What
are the contexts in which a thumbs up emoji would be interpreted as acceptance? A reaction is different, a
reply is different. Even when it is a reply, it is too vague, dependent on context, dependent on the
conversation between the people. This is the indeterminancy of law- wide scope of outcomes when law is
vague.-CLS
Positive law- whether or not emojis can be considered as acceptance- looking into the historical and
sociological schools
Jurisprudence is a tool to interpret different or similar things in different ways which help you convert
theory into output
Cyclical relation:
Theory- crystallise- knowledge to apply later- application = object- create a new theory
If nothing is crystallised, nothing to apply, then you wont be able to create a new theory.
22.07.2026
What are these law questions? What are women’s question??
These questions are very subjective and don’t follow any rule.
We need to take any form of philosophy at face value, and it is the actual right way to go about things. If
philosophy is taken at face value that negate the entire point of analysis or critique of the analysis.
Peer review is req - to actually critique the portions that are critical, to make the thing more sound. This
questioning and critiquing don’t always have to be negative in nature, it doesn’t always mean u don’t agree
with it, it just means u are giving a different view of something, or at times appreciating something.
Critique points don’t necessarily have to fall in sany set formula of negative or positive things, because
this makes it a descriptive study of something and not an actual critical study of something. It is just your
view on something
4 questions we will deal with in class today:
1. Does legal theory lead to law? – do u think law comes first and becomes legal theory or vice
versa (what is the correlation or causation). LAW – completely different in layman’s terms and in
legal lens. There is some kind of relation, the hypothesis that there is no relation is rejected. Law
is the subject matter in the relationship that we are talking about. Legal theory is the apparatus to
understand. For law, it is more focused, and we are using legal theory to dig into law further.
This makes the relationship bidirectional. There are situations in which law contributes to theory,
and multiple other situations wherein legal theory directly into law. Things like Vishaka guidelines
were soft laws, which later went on to form hard laws such as pocso. In layman’s terms what is
gonna be law? Read about law leading to legal theory (positivist law- Weimer constitution- based
on 2 parts kelson theory (what is normal) and natural theory (at the same time). Based on
Weimer constitution whether or not an amendment is legal or enforceable in nature was debated
based on lacunae in Weimer constition, legal theory therefore developed based on flaws of
existing laws) and legal theory leading to law.
2. Are all forms of law legal? – law in itself can be anything, Austin said- “province of
jurisprudence”- juris would only deal with legal things. The laws of social behavior, like in a class
there is no guideline to how to teach is given to a prof, but still that person behaves in a certain
way when they are in class. Same is for laws of friendship, or for any sports before the governing
body was put in place, law are things which are beyond the scope of what is legal. Normative
theory is based on hierarchy. Constitution is not a Grund norm, the Grund norm leads to
constitution, and not the other way around.
Simon pigeonhole theory
3. How to separate legal from non-legal? – we have a sovereign power that enforced law and
punishes fouling of laws – the command theory. There is only one way to understand there are
other theories. Hans kelson says there is hierarchy of laws- general norm vs legal norm.
Easiest way to distinguish legal from non-legal is using command theory from Austin. Why is
imaginational law not considered to be law in pure sense? - no overpowering hierarchy is present
here. What are these sanctions? Austin- sanctions include penalty, punishment and anything in
that range. The ineffectiveness of sanction and actual possession of the sovereign is absent. A
sovereign is not subject to control of another sovereign. Why are colonies of old times not a
sovereign? Cause they come under the crown.
4. If we consider law as a completely separate domain? Or can law be studied in isolation from
other fields of knowledge? –No we cannot read law without other fields of knowledge. this
question operates against the 3rd question. In case of positive law, law operates in its own theory
or bubble, and hence is treated as a completely separate field. In case of natural law, the theory
slightly shifts, law is something which becomes a sub-genus of morality and ethics. What are
other fields of knowledge? - history, sociology, sub category of economics. This essentially
makes law a cross-section, in the case of historical school and sociological school. What is the
case of critical legal theory? - we are taking a chunk out of law and applying the influence of ace
or feminist theory.
Critical legal theory- different schools and theory coming from this, like guiding principles that
are based on how u perceive it from a stand point epistemological perspective. There would be a
difference in how different members of the society look and deal with all the stuff. CLT doesn’t
make a separate school of thought, because it is just a perspective. U are applying different
genders and race of law-based perspective in law. Privacy is based on autonomy, integrity and all
general principles. AK Gopalan is positive case, which goes against the rule of law.
In race theory is something directly derived from sociology or history.
CLS was originating from law school itself, as several people were removed from their schools.
Clas is more of a movement, rather than a legal theory in itself. These movements have affected
laws to certain degree. Feminist legal theory is not a single approach, as there is ethics of care,
radicalism, and all other aspects. Herein, if one movement is more extreme or have slightly
different views than the other than that doesn’t mean that one is better than the another. All of
them have the same value, yes they would be different based on lived realities but principle would
be the same.
I.
Should u take law at face value? - u need to question law as in it there are different laws
played by different people in different aspects of time
Example- in Sabarimala case, the dissent came from a woman. This is a woman who is quite influential,
and has good influence over the others. Now if u don’t allow the space for a change to occur for law, then
u will end with a static society. Having an objective law is ideal in an eutopia. This is why the utopian
concepts given by john Locke, are not generally applicable in a regular scenario. If positive law would
have been followed in this case, no conclusion ould have been reached.
Civil law jurisdiction has become way stricter, and have some kind of guidelines and other stuff always
present.
In case of common law countries, there is much more space than civil law countries like the EU.
Knowledge + reality + experience
Do positive law assumes knowledge, reality and experience to be something that is fixed in nature. If u
don’t have a fixed form of knowledge u can never reach fixed form of conclusion. Now in reality they are
fixed to a certain extent. Principles under natural law are most of the time fixed, like good conscious,
equity. What is not fixed is for whom will it be used for.
In sociological school there is constant movement that is taking place, there used to be a lot of static
societies that are there today, but it doesn’t cease to exist anymore as such. Here u talk about what is
happening in the present, what are the gaps in the present. If u try to visualize it as 2 parallels instead of
2 separate fields, in particularly in its purest form.
Privacy laws are a result of sociological and histological schools (inter-dependent schools).
There are a few ways of conceptualizing this: there is knowledge and experience, it is always gonna be
something different for different people. It can never be the same for everyone else. Cause even
knowledge can be hindered or mediated with. Knowledge is given to u by someone else, there is always a
possibility of some kind of mediation, and more like their perception. If someone tempers knowledge
then it could alter the knowledge and make it more like experience.
23.07.2026 (Viniie)
Can we study law in isolation from other fields of knowledge, such as history, economics, etc?
If we consider law to be a separate domain/operate in a vacuum, is it possible to isolate law from other
fields of knowledge?
The pure theory of law- dealt with under kelson
Command theory- law is operating in its own bubble irrespective of the influence of what is happening
in the outside world
In the view of positive law, law is considered isolated from other fields of knowledge, completely
separate.
In the field of natural law, law becomes a subset of morality
Law becomes an intersection between other fields of knowledge, in the views of the
historical/sociological school.
In the case of critical legal theory, we will be applying race/feminist theory to a chunk of law
What is critical legal theory? What are the different schools in CLT? CLT are a few guiding principles, it is
based on how you perceive it from a standpoint- epistemology, their approach towards oppression,
hegemony; different viewpoints by different people based on the oppression they face- that’s why CLT is
a tool through which race and feminist theory can be applied to the realm of law- it does not have a
school of thought
Right to privacy- rooted in naturalist rights- autonomy, integrity, which are derivative of natural law- in the
AK Gopalan case, it becomes a positive law that goes against the right to privacy- in the case of
puttuswamy, there is positivist support for right to privacy
When we discuss race theory, isn’t it derived from sociology and history? We borrow from different
theories to make up a single movement, like CLT can also be called the critical legal movement, rather
than theory. These are movements that influence laws to a certain degree
Feminist legal theory is not one single approach- ethics of care (male and female roles), radicalism (men
are oppressors_ idt that’s accurate, it says men benefit from oppression and therefore further oppression
since they do not reject the benefits)- the theories need not directly influence each other
Race theory- caste discrimination, black lives matter movement- these parts can exist independent of each
other
So, law cannot be read in isolation with other fields of knowledge, cannot segregate law from other fields.
Can law be taken at face value, unquestioning? No. you have to question law, even interpretations differ.
If unquestioned, the laws become static and unamendable (historical school)
Sabarimala case- the dissent came from a woman. If the dissent is from a woman and is influenced by her
lived experiences, a person who is in a position of power, the dissent is also based on her personal
opinions. We are not discussing whether the law will be subjective or objective, we are talking about
whether the law is subject to change.
Us gun laws have gone through multiple changes, it might be based on popular opinion- that’s the
sociological school. Having an objective law might seem ideal only when talking about a utopia- john
rawls or Amartya sen which are ideal, are just not implementable. The point is, even though judges’ bias
exists and law has to be separated from their opinions, the fact that law cannot be separated from other
fields is based on the power to interpret and amend. We cannot stop people from bringing their own
interpretations.
Different interpretations allow wiggle room to go beyond positive law, even though different
interpretations itself are not going against the law per se.
Knowledge, Experience, Reality.
These three words are recurring when discussing legal theories
If learned from the perspective of positive law, do you think positive law assumes them to be fixed in
nature? Yes. If you have no fixed source of knowledge, reality, then you cant have a fixed law.
From the perspective of natural law, they are fixed to some extent. The principles of natural law are
somewhat fixed- equity, justice, good conscience. The point that is not fixed is, for whom is it going to be
considered as justice/equity? Society is not fixed.
How to separate the sociological school from the historical school? They are just two subsets of arts.
You must follow what is actually happening in reality- if you don’t know reality, you wont be able to
understand experiences, even if you have knowledge.
Flat earth theory- with the life experience of a secluded life with no education, a person would believe it.
But we don’t, because we have both knowledge and experience (learning, and flying in a plane). If a
person has knowledge, was taught that the earth was round but has never been able to fly on a plane, they
might still have a belief in the theory.
28.07.2026
how research methodology in general works?
critically examining – analytical perspective of something (science)
essentially the meaning of positivist theory is also different when taken from the lenses of legal and
science
unstructured research- one hits a roadblock- hence one use to have a structured approach.
approaches of good research proposal:
1. objective
2. less footnotes are enough as well, cause if your research is only taken from other sources, then it
is just a compilation of other people’s work. research is not compilation, that makes things much
more descriptive.
3. research doesn’t always have too be novel.
4. if u do not contribute to existing literature your research doesn’t have any value, it would get
published but never cited.
5. people who have given new theories have also given their own touch to the previous works.
6. a structure of a proposal would always be:
a. Introduction- background, recognize variables/keywords – (cases, theories, tech), define
the variables
b. statement of problem – highlights the issue + define the relationship
c. literature review – (narrows down) different ways to write it down – 1. chronological, 2.
thematic.
d. research gaps – how is it different from SoP? research gap here is gaps in literature. these
are the previously existing literature. (SoP + RG)
e. research objectives – it will follow the research gaps – affirmative statements. ad when u
flip this u will get research questions. it is based on statement of problems, issues
highlighted in Sops’s and gaps in literature review.
f. research questions – if one is writing a paper 3-4 questions are something that could be
pulled. 4000 words- 2 research q, 6000 words- 3 research q, 8000+ words- 5 research q.
g. research methodology- keep it simple, heart of the research. it should have:
 approach
 data collection (sample and technique)
 data analysis
7. a proposal doesn’t have any limit to the number of pages.
issues always are – affirmative and inquisitive
if an H0 (hypothesis original) is there, then there has to be HA (hypothesis alternative) as well (to make
sure your paper is not biased towards one side). if your ha fails then that doesn’t mean that your research
is wrong, it just means that u have proved your h0 correct, and that your research is unbiased.
every single research done has relationship between 2 variables, it can be complimentary relation or
relation of conflict. it is not necessary to define a conflict, and just have a complimentary relationship.
this relationship has to be pointed in our sop. and then form research questions about it.
our thematic approach- deal with the evolutionary part, where did it originate from; literature talking
about intersection of the 2 variables; other papers dealing with the same object as u, review that paper;
then will come research gaps.
research gap- not enough literature that talks about the object of your literature.
29.07.2026
mostly there are 2 types of research methodology:
1. doctrinal research – work is based on 2nd data – all sources of law – types of doctrinal research:
primary course and secondary source
 analytical
 comparative
 critical
 descriptive study
 historical study (evolution of laws)
 exploratory studies
 explanatory
 reinterpretive
2. non doctrinal counterpart – empirical – primary data – this is a firsthand collection and
observation.
 survey
 interview
 experiments
Not necessarily have to have only doctrinal/empirical methodology- you can have both, but you have to
separate the methodologies and explain them separately.
Approach of collecting the empirical data is purposive approach- the purpose is going to be parameter.
this parameter is going to be based just on right to privacy.
PURPOSIVE APPROACH or Probability Based sampling- suppose you are conducting research on the
Right to Privacy; you take up the cases that are relevant to establishing or point/laying down the evolution
of law.
However, if you have 1000 cases with the same research value- you can do Sampling- pick out the 1st,
51st, 101st…. Cases- Non-Probability Based Sampling.
[Auro]
How is Research Gap different from SOP?- Gaps present in previously existing literature. Now you have
SOP and RG- from this figure out what are your RESEARCH OBJECTIVES- whether you want to
clarify the points in SOP or fill in RG or correlate both.
Research Objective will be an affirmative statement and we can convert that into a Research Question.
Generally for project- dont have more than 2 research questions.
In Article- you can accommodate 3-4 questions. But within 4000 words- never go beyond 2 research
questions.
Never exceed 5 questions
Try to write Methodology as simply as possible- the heart of the research. Divide into 3 componentsapproach, data collection sample and technique, data analysis.
Two types of research- doctrinal, non-doctrinal- generally referred to as empirical. Separated- doctrinal
work is based on secondary data and non-doctrinal work is based on primary data.
All sources of law are going to be secondary data.
Secondary data divided into- primary source (legislations, rules, judicial decisions) and secondary source
(books, commentaries).
In case of empirical research- collecting data from a particular source.
Approaches for doctrinal research- Analytical, Comparative, Critical, Descriptive, Historical (evolution of
laws), Exploratory, Explanatory or Reinterpretive.
Approaches for empirical research- survey, interviews, experiments.
You do not necessarily have to have only doctrinal/empirical methodology- you can have both, but you
have to separate the methodologies and explain them separately.
PURPOSIVE APPROACH or Probability Based sampling- suppose you are conducting research on the
Right to Privacy, you take up the cases that are relevant to establishing or point/laying down the evolution
of law.
However, if you have 1000 cases with the same research value- you can do Sampling- pick out the 1st,
51st, 101st…. Cases- Non Probability Based Sampling.
03.08.2026
sampling and non-probability sampling- whether or not u can have a proper probability guess.
1. probability sampling – not used at all, rarely used in law. no fixed probability in law for a
particular number will be selected. hence not comvinent to use in law.
a. simple random: sample size is 100, population/universe is 10,000. we need to arrive from the
universe to the sample size. every single time we pick up a marble the probability would be 1
in 10,000.
b. systematic: we arrange all the 10,000 marbles in a straight line, now we choose a value, we
have a fixed interval as 500. essentially here we have a fixed interval. and we keep on
repeating the process till the time we reach 100 samples.
c. stratified: stratification – classification, by assigning traits. we have to assign characteristic
otherwise one cant take it up for classifications, herein we are formatting statures and not
clusters (clusters are naturally formed). after stature is formed either apply simple random or
systematic to it. smaller stature is formed for equal representation from each category.
d. custom: this is formed naturally. examples could be city locality age and stuff like that.
naturally occurring clusters are civil in nature and have natural characters. after cluster is
formed either apply simple random or systematic to it. smaller clusters is formed for equal
representation from each category.
2. non probability sampling – small group of people usually
a. convince – I need to not move away from my convenient group of people. it is fine if u
don’t reach out to experts and only to the people whom u knows.
b. purposive – target people only who have expert level opinion
c. snowball
d. Quota – do not apply simple random or systematic. here let’s say u wanna find someone able
the age of 25 and has a law degree. when u find 100 people who has that u stop it. the
moment to meet the parameters u need u stop, hence thereby creating a quota. It is different
from purposive as in purposive parameter is based on what is your research to select the
respondents. herein it is more like just categorization based on a few criteria’s and not really
the ones based on research. this is interchangeable with purposive.
if something is beyond the scope of research, just write it down just in the scope as limitations. the
limitation of the research is something that can be expanded in the future.
If u conduct an empirical research mention the sampling method properly and purely doctrinal research
then to please write down your data method.
general rule of thumb for our analysis has to be document analysis or comparative analysis. if u undertake
empirical method undertake the descriptive study for the time being
SUBMIT BY 17TH – introduction, sop, research question/objectives, methodology. (DRAFT
PROPOSAL) 1500 words
lit review, hypothesis, significance would be included in the final paper. 6000 words
04.08.2026
When we talk about theories one of the imp things is perspective from which we look at it.
The moment we back our theories by evidence it really doesn’t matter what we are producing but what
matters is we are producing that thing with a filter. this filter is different for each theorist, and won’t
remain constant for life as well. These filters give meaning to each and every thing.
for example: “killing a man” let’s say this is a theory, a theory not backed by evidence cant ever be right or
wrong – there could be a filter of IPC, this is a crystalized positive law. if the law becomes a basic
determinant like basic principles/nature of “don’t kill”. humans have ability of reason or speech, we are
not a particular being that is just controlled by emotions and natural phenomenon, this is what makes us
different from each and every other living sapiens.
filter – the main objective is demarcation/categorization.
To a certain instinct, law is a certain form of categorization, like the dos and don’ts, civil and criminal,
procedural and non-procedural. on a very basic level the law is going to tell u right vs wrong. if u go a
step further u will get legal vs illegal, go a step further u will get whether it is a civil breach or criminal
breach.
Michel Foucault
Entire idea in that case was grounded in the fact that there is gonna be hegemony (shows how
epistemology works). law itself is something which makes a form of hegemony, make a categorization
legal or something that is supposed to be followed by a group of people. if it is followed by a group of
people then it becomes a norm. if there is no norm that is followed then 1st problem would be faced is
consistency, 2nd is interpretational problem, 3rd subjective jurisdiction is preserved over objective
jurisdiction.
Anarchism – doesn’t really mean lawlessness. it means that there is no central power who is making that
decision of implementing or enforcing a law. The moment u doesn’t have fixed set of rules to govern
something, then this will eventually lead u to lawlessness.
Hegemony – dictated by law. Group A: people who conforms with it, Group B: critical of the law and
not conforms with it. One is the favored one here and one is the losing out by the presence of the same
law.
HMA Hart
Internal and External aspect of law – lets take 2 examples of Habits and Rules.
Habit: It is something that is generally known to u because of some external source. When there is a
critique, an external source will come and tell u that it is a bad habit. in here u generally wont be able to
decipher that there is a particular habit that is present in u.
Rules: This is something that u internally realize. Herein u have to follow the set rules, and to do so u also
have to be aware about that particular rule yourself in order for u to follow it. Person inside needs to
realize it in this case, and at the same time u can be informed about those rules from someone outside as
well.
Michel Foucault
Discursive regularities – there are hidden rules and patterns that controls how a person reacts to
something. herein u should also be in a position of not opposing against a moral or socially acceptable
stand. A change in social habits often leads to criticism of existing rules. Likewise, changes in the rules
can gradually influence how people think and shape new social habits.
We are given fixed legal definitions, but if a case does not fit within them, we must either rely on a
different law or amend the existing one to accommodate it. This approach can create inconsistencies and
lead to irregularities in the legal system.
06.08.2026
5 schools of thoughts
1.
2.
3.
4.
5.
positive school
natural
social
sociological
CLS
which school came first? – natural school
why was there a shift from natural law school to positivist school of law.
there are a lot of misconceptions and new learnings when it comes to schools of law.
Why was there a positivist thought that came into being?
Natural law- ought to be, positivist law- as it is
When we talk about positive law school, it will make you understand law in a bubble- influence from the
outside world does not really affect the positive law that much
when we talk about positivists law, we ignore the term ‘positive’.
law mimics natural sciences, hence this makes science as an objective field of study.
positive science will always push u to get an objective answer. the group trying to chase legal science is
always chasing the objecyivity in law. this is because this give sus consistent answers, if we don’t have
consistent answers, it would be leading us to vagueness. law is treared as a separate field of study ion
poritve law. law gives us separate answers, if we mix it with sopciologicak activities, or any other external
poarameteres then it wuld give us different answers. positive laws scholl focuses only on internal aspects.
things like precendents and grund norm are the ones that acomes into this. chronologically natural law
school is always the first school of thought, natural lw school starts at Socrates and secerro. first division
in positive law school is that of roman and greeks, they are not really Christianity driven but are
religiously driven. this is mor elie the ancient natural law school.
after this we come into medieval school, herein it is more Christianity based. Thomas aquantice are a part
of medieval school
wheber we look at ancient school there would always be a possibility from where are u looking at it from.
if we include Indian mythology then there is one more type of ancient subect.
next is the modern school. major part is social contract theory – john locke, russo, hobbe.
now next is resurgence era – this is the 19th century – the debate was being led by fuller, john raulx,
Amartya sen.
in renaissance period there was a disconnect and positive law came into being along with automation and
science. this is the scientific era. post scientific era we srated replicating science in the law area. this
worked quite well, the positive law til the 2 world wars.
after thr 2 wars all the group of international group of nations were failing like league of nations. we did
not throw away psotiive law school and morality of law school was completely deemed important again.
when positive law fails u go back to the place from where u seek objective morality, as it give su guiding
principles and based on that u can frame the piositive laws. if laws were seen as it is would one go ahead
to see things in any other light. synamicity is happening only if u have a mode of change.
ancient natural law school is broken down into 3 aspects.
in maharbharat lord krishna goes on to say why od we need ot follow dharma. when u look sacreoos in
ancient eupoean context and look at Greek mythology, the logic behind greeks an dtheir law was zues. for
us dharma was based on laws given by Vishnu. this is the reason why we always relate natural law with the
divine powers, we tale inspirations from the divine but the interpretation is always going to be man-made.
and people make laws based on their moral understanding of the laws of the divine.
dharma is dictated by 2 principles.
Socrates Aristotle and Plato are the 3 main thinkers that we are gonna talk abpout.
Socrates is the predecessor of Plato and Aristotle; Plato was a disciple of Socrates.
Socrates: importance of “virtues”. entire Greek mythology is around how virtues work, he treates virtue
as knowledge, the moment something is not virtuous in nature, he categorizes it as sin. he doesn’t try to
deviate from dictates of positive law.
one of the virtues he was always trying to uphold was human insight, he was of the opinion that humans
was of the capacity to distinguish of what is wrong and what is right. this dictates morality and moral
values. for him he didn’t deny the authority of positive law. he was arrested but he never said that positive
law is something that has to be followed, he always focused mor eon human insight. this is the main idea
why he never escaped. he wanted natural alw cause the Greek society was in a bad state, and arbitrary laws
were in rampant. and he thought natural laws could bring some kind of stability in the Greek society.
when u talk about morality in terms of natural law, u are talking about objective morality. there can at a lot
fo times be subjective interpretations of human insights, based on personal beliefs. tis is why natural law
is objective in nature. and this makes natural law thinkers so different.
he was not just using natural law to comply with positive law, and human insights were used in every day
affairs as well, to uphold what was supposed to be upheld in that scenario.
Socrates gave a general idea of what should naturally law. romans developed it better than the Greeks.
they have a much more crystallized form of natural law.
PLATO
disciple of Socrates, his work was more detailed and idealistic piece of text, he was re-nound for the text
of republic. he has said that the person who is best suited to do a work
why do u need a union in first place? –
4 kinds of things we need to discuss:
race caste ethnicity and vernas
[VIN]
6th august
We will actually start studying the subject today
Covering 5 diff schools of thought- natural positive social sociological and something else and then CLS
What was the reason for the existence of the positive school, after the natural school? Then why did we
have another set of natural law theorists (resurgence)? Why all the different schools?
What came first? Natural law school
Why was there a positivist thought that came into being?
Lot of misconceptionsNatural law- ought to be, positivist law- as it is
When we talk about positive law school, it will make you understand law in a bubble- influence from the
outside world does not really affect the positive law that much
“Positive”
Law attempts to mimic the natural sciences’ objectivity- positive science has objective answers- since we
are trying to replicate science
Jurisprudence- legal philosophy or legal science? The group trying to chase legal science wants to chase
positivity or objectivity in law. Positive law gives you consistent answers- to avoid vagueness. Law is
treated as a separate field of study in positive law- otherwise if we mix the economic sociological etc
aspects, it can no longer give you easy straight answers- it will give you diff answers based on outside
parameters
Positive law is only concerned with the internal components of law- positive law studies law as it is.
Natural law studies law as it ought to be, not bound by precedent or previous interpretation.
We will attempt to be chronological- natural law is the first school of thought. It starts with Socrates and
sicero. The first division in natural law school is between the romans and the greeks. They are not
Christianity driven but they are religiously driven- we can call this school the ancient natural law school.
After this we have the medieval school, which is more Christianity based- st Thomas Aquinas- in ancient
school, it can also have a third classification- Indian mythology. So three aspects- roman, Greek, Indian in
ancient law. Then there is medieval. Then there is the modern era- social contract (locke, hobbe, kenvo)finally we come to the 19th century (fuller, john rawls, amartya sen)
Hart fuller debate (fuller is the naturalist side of it)
Positive law started gaining popularity after the medieval school in natural law. Once the world was getting
automated and interconnected, during the scientific era. Then we started replicating science. It worked
smoothly until the two world wars. In the world wars, there were positive laws- every country had
objective laws- even after so much objectivity, they failed. International instruments failed, UDHR came
in later. League of nations failed. Since they all failed, we set guiding principles set by the natural law
school. So morality of the law was deemed important again.
Parallel to the positive law school, we will study sociological or whatever else
If puttuswamy or anyone else had been positivist, they would never lead to social change- it will make the
law static. There has to be wiggle room for change.
Is dharma a moral duty or is it just the way things are supposed to be? This is ought to be categorydharma is based on the authority given by vishnu
Greek philosophy or mythology- logic behind the greeks- their divine authority is zeus- inspiration from
divine but the interpretation is manmade
Dharma is dictated by two principles (what are they who knows)
Socrates Aristotle and plato are the three main thinkers that we talk about
Socrates is te predecessor of the other two and taught plato
SOCRATES: importance of virtues in greek mythology- treats virtue as knowledge- the moment
something is not virtuous in nature he calls it a sin- he does not try to deviate from the dictates of
positive law- a few of his disciples after he was arrested, chose to help him flee but he decided to not
leave- still he is not a positivist. One of the virtues he wanted to uphold was human insight, he was of the
firm opinion that humans have the capacity to distinguish right and wrong, bad and good- this dictates
moral values, he did not deny the importance of positive law- for him human insight was such that there
is a positive law, I will have the human insight to obey that positive law. The idea behind supporting
natural law was that Greek society was very fragmented and unstable- he thought positive law could guide
the greeks to stability. Morality in natural law is objective morality- there can be subjective interpretations
of human insight, based on personal beliefs. This is why we have other thinkers and why we think natural
law was idealistic. Human insight was not limited to uphold positive law, but also for day to day affairswhat was ought to be done.
Socrates gave a generalised idea of what should be natural law- romans developed it better than the
greeks- they have a much more crystallised form of natural law
PLATODirect disciple of Socrates
His work was even more idealistic- the republic- plato’s entire idea- why did he come up with it? Takes an
aspect of human life- humans are capable of making permanent union- one of the virtues of human
beings
Why do you need a union in the first place?
10.08.2026
how is it any different from the caste or varna system?
there would be a different take on how varna system works? – this system in its core form doesn’t
promote any kind of hierarchy, but from etymological perspective it has a different meaning altogether.
4 words:
1.
2.
3.
4.
varnas
caste
hierarchy by plate
race
SIMILARITIES BETWEEN Varna and Plato’ classes
basis of distinction
varna: talks bout ‘Guna’ – it means 2 things, depending on various origins, Arabic origin means sin, in
Sanskrit origin it means virtue. here distinction is based on Guna.
Plato discuss same thing, function or capacity, essentially something a person is good at. it is somewhat
similar to varna.
mobility between different classes:
1. in varna: internal mobility was allowed, a person born as a kshatriya might get into a different
varna altogether.
2. in Plato: internal movement is not a concept, rather it is assignment of a role based on a person’s
virtue.
restriction on marriage, whether u have to marry the person from your verna or not to maintain a social
order: NOT MANDATORY in both varna system and Plato.
there are 4 types of varnas, and 3 types of Class of Plato.
Caste system:





set number of classifications in caste systems, there is set protection for certain group of castes.
there is definitely more caste as well, but at the end of the day it is a local thing, there are
different types of castes which may not be co relating with each other. there is no number to it,
so we will consider it as infinite.
classification: by birth.
this is a localized approach, different from class and varna as they are generalized approach.
localized approach here is something assigned at birth, social status, endogamy, occupation. all of
these can be used to classify whether someone belongs to a particular caste or not
much more rigid system. this reduces internal mobility.
here endogamy is a general requirement.
varna and Platonian conception is somewhat similar casue:
VARNA- Normative classification
CASTE- Hereditary
Plato’s class- Philosophy and Function based classification. he talked about this in his republic, wherein he
talked about how a particular utopian state should be functioning, there would be real world intricacies
but this is not a real word conception.
Varna’s direct meaning is color. let’s say if u want to break it down into smaller components. ‘Varan’ can
also be a form of classification. which means color. now if u take this form of classification and talk
about how the race theory works. it was accepted by the majority.
RACE: social, biological, cultural, historical. if u have these 4 points the other points will also fit in. there
is a socio racial restriction, so its not an actual proper restriction that was ever put in. with time this bar or
restriction is eventually lifted up, and drastically reduced.
endogamy was initially a social requirement, but now it is no longer one. no one from a particular race is
now denied to being linked to any other race.
actual word varan has historically nothing to do with varna system, however when u look at the race as
epistemology of a particular word, varna system is more like an institution which will give u a proper
meaning. color was not the main factor of doing classification, and its origin comes from completely
different meaning.
next part is Aristotle.
whenever we look into Plato it is almost always a utopian manner mei described, in contrast Aristotle
approach is way more grounded. this is so because he gives better classification of how laws actually
work. “Man by Nature is a Political Angle” – what makes him political, previously we discussed about
plato that there should be a union as there has to be some kind of co-existence in the society, whenever u
look at humans as a part of the society, they have to engage with one another.
in Aristotle thinking first thing is man is a part of nature. this is because he is a creation of God. this is
the whole divine concept of the same. but at the same time there are multiple creations of god. one thing
of extra quality is the he has something of insight and has the ability to shape his own will. with this man
has ability to question, create, differentiate, and all of this comes from reasoning. this reasoning that is
there in a human it could be used to discovers eternal principles of justice.
principles of justice are man made, then how could u say it is a part of natural law? as it is becoming a
man-made creation after a point. his ability o reason, his insight, and his ability to shape a will. all of these
things are a part of nature itself. this makes him capable enough so that he finds the law of divine and
eternal principles of justice.
4 different virtues under natural law
1.
2.
3.
4.
wisdom
courage
justice
temperance
Socrates- ‘idea of courage’- action of not escaping the prison, it is a part of courage or is it all 4 virtues
applied?
11.08.2026
what are the forms of justice Aristotle is talking about?
justice is something that has sensible meaning, the bifurcation gives us a holistic idea about how he was
talking about a grounded idea of how a society should function. if we take justice as main head, it can be
divided into 3 sub parts:
1. general: general application, justice in relation to others in general, how a person is supposed to
behave in the society, or how a civic relationship is supposed to work. u narrow down justice into
2 components. modern example:
 why this entire distribution is req
 how this distribution is supposed to take place
2. particular
 distributive: distribute certain goods, opportunities, primary thing would be distribution
of resources, and wealth. opportunity, everyone should have same opportunity to come
up with a solution. distribution is certain goods like: 1. honors, 2. wealth, 3. public
offices, 4. political privileges. here u are not just focusing on distribution just for the sake
of distribution. what is the difference between equality and equity? u treat equals equally,
and make special provisions for people who are not equally places. make proportionate
accommodation to bring unequal to the equal level. make sure that the objective is to
bring everyone on the same level.
 corrective: 1. criminal law, 2. torts, 3. contracts. all these three falls under corrective
nature of justice. herein u are trying to bring a person who is wronged to the initial
position by recognizing injury or damage to that person, u remove that injury or damage
and bring that person back to their original position.
3. political
 natural: what is natural law and what is positive law? 1. validity of natural law is
everywhere. 2. it has to be independent of what people subjectively think. 3. natural law
in its core doesn’t talk about subjective justice, and not about objective justice so that it
survives the validity of time even if u place it at a different place.
 conventional: something becomes just as a political community establishes itself. all the
rules become just as it has been established by a political community.
john rolts (difference between equality and equity), Augustine, Aquinas (please look him up)
Aristotle is called proponent of natural law, even though he talked about both natural and positive law, he
is still only vouching for natural law, and just recognizes positive law. he never rejects the idea of
conventional law or natural law; he just adds that whenever a conventional law is made it has to stay in
sink or tandem with the natural laws.
when there isa conflict of natural laws and positive laws: A natural law is based on consent of parties.
when a man is treated as political entity and his decisions are politically motivated and backed, and when a
political community takes a decision that this is the law of the land. this is primarily because this is
decided by the political community or the collective.
till now we were discussing natural law from the perspectives of the Greek, yes there was [[political
backing for all postulates and statements put forth.
if there is a natural law u should be following the conventional law.
now let’s go to roman side of things: what is the blending agents?? – stoics acts as bridge between roman
and Greek thinkers. in case of Aristotle view these virtues as golden rule or treated as something derived
later.
stoics – they use virtues as natural order as itself. this is unlike Greeks who say it should be in person, as
this is something imparted to them as given by divine powers itself.
stoics are focused on the facts of how reason works? – it is treated as universal. applicable to all men
irrespective of anything like where they come from what is their nationality or their race.
Aristotle was the most grounded and realist approach, when it comes to the Greeks, but it feels short
when it comes ot the roman, as romans unlike Greeks.
the roman have much more rigid system, it is referred to as living cosmopolite law.
romans divide the law between 2 parts.
1. jus civil: just civil law, and mostly applicable to romans themselves.
2. jus gentium: applicable to everyone irrespective of anything.
when u combine these 2 systems, that’s when u come to jus natural.
relationship between the conflict in case of romans: it is always positive law which wins. these conflicts
don’t exist altogether in romans. this is as if a particular thing doesn’t obey by natural law then it doesn’t
exist at all. positive law is higher score than romans, and natural law is always bigger law than positive law.
if there us a conflict between natural and positive law, positive law can be completely disregarded in
romans.
cissero: himself a constitutionalist. so if he was one then he is a person whose origin traced back to
positivism law. this is all about how peace and harmony work. he is the man who opposed ceser and mark
Anthony. all of this came to him at a particular prices that he was always dominated by big institutions.
primary difference was he grounded his theory in utility, most of the Greek thinkers were trying to
chance a European concept. cissero regarded this approach as extremely poetic approach, he wanted to
differentiate between something that is between historic reality and poetic reality. he was categorized and
inspired by natural truth about our country.
historic reality is evidence driven factual approach.
poetic reality: something grounded in utopian concept of a particular problem.
when church comes in God come into the picture and becomes a big thing.
natural law vs divine power’s law, manmade law.
stoics: something acquired by divine reason. this reasons inculcation in a human mind was the first order
of the divine. god believe humans are capable of having this information with yourself. through these
other things can be derived and found. first order of the divine that came on the stoics. this power of
reasoning is going to affect the function or form of anything.
doctrine of separation of powers: this is a function, the form in this case is that there are 3 different
institutions.
three distinct institutions exist (legislative, executive, judiciary). 1. one doesn’t have power over the other,
2. powers don’t overlap. so for function for the same is separation of powers, and it stops it from
happening.
And therefore, the doctrine of separation of powers exists. How reasoning can be used to find the form
and function of a system- this is the point of being a human and having the power of reason.
12.08.2026
all these theoretical setups will have corresponding functions attached to it.
three limbs of the state:
the function part of it is to make sure the state runs properly. judiciary will not step into the steps of the
others.
just saying blanketly, the separation of powers creates a marketable separation of the same. why the
judiciary is stepping into the other shoes, it is to create precedence, this embarks predictability, it is usually
something the judiciary has never stepped into this thing before. this makes us understand we have
automatic separation of power. this embarks any kind of heriarchy for the same formation.
a standard has to be maintained. there are boards that makes sure that it is maintained. these are other
creations of the divine. the first part is reason and the second part is speech. when there is a topic of
speech it will have a particular function attached to it.
Each of the three limbs of the state the legislature, the executive, and the judiciary is assigned a distinct
function to keep the state running properly, and the doctrine of separation of powers exists precisely so
that no limb encroaches on another; ordinarily, the judiciary does not step into the functions of the other
two.
When it does, it is to lay down precedent, since precedent lends predictability to the law, and such
intervention typically occurs in matters the judiciary has never before addressed which in turn shows that
the separation of powers is self-sustaining and gives rise to a natural hierarchy within that structure. For
this arrangement to hold, a standard must be maintained, and there are boards entrusted with maintaining
it, themselves further creations of the divine order, the first being reason, the second being speech so that
whenever speech becomes the subject at hand, a particular function attaches to it accordingly.
reason:
1. when a human being has an ability to reason he automatically can infer the cause and relationship
of the same.
2. human beings are the only creature that has memory, and most of the time it is used to develop
knowledge.
3. a person also gets the ability to moderate someone’s behavior his/her functions. he uses his
ability out of his own will, in voluntary manner, he has control over it.
4. quest for truth: apart from utility, what if u don’t need it, then why are u still looking for it. this
automatically contributes to creation of knowledge. uncover the reality to find something else.
speech – inherent to humans
1. corporation
2. aiming towards a common goal
3. compromise (without brute force) - humans compromise cause they have ability to communicate.
they also have ability to rational disclose
cissero’s world
reason + speech makes up the first persona; this is in the cicero’s world it is common in all human beings.
hence it is universal ability. provided by divine.
second persona, talent, personal taste, things specific to one individual, based on this u develop abilities.
and based on the same u will be assigned duties.
a culmination of these 2 things will be raising a special creation or rational creation of God.
reasoning is common to both gods and humans. every human has a dash of divinity, this automatically
means God himself is the most rational being, and humans has the quality to give justice or the ability to
always seek justice
in Greeks humans had various qualities and virtues, herein in romans justice is itself treated as a virtue, so
in all forms or factors they are seeking justice in itself, and this is one of the qualities.
now whether or not this is based on first or second persona?
we are making a moral benchmark, this can be either individual benchmark, and also common to all, in
first persona it’s a general benchmark, in 2nd persona it has a personalized benchmark too.
natural law is not treated as individual conduct, this brings on the discussion about morality and objective
morality. morality is not something on individual basis, but rather herein we use principles laid down by
naturalist theorist. herein now everyone would follow different laws if there are different subjective
grounds of morality.
13.08.2026
Natural reason- there may be unnatural reason as well
Natural law seeks objective morality
But there are going to be things that do not fit in objective morality
Critiques of natural law- objective morality is not implementable. On the micro level, there will be
differences. In the macro level, this difference is generally mitigated. More generalizable. Still, it doesn’t
solve the problem of whether there can be objective morality- will always remain one of the flaws of
natural law. objectivity is one of the drawbacks of natural law.
Positive law- instruments- will only be able to promote objectivity, removing aspects that influence law.
Therefore, it becomes an independent field of study.
on the other end of spectrum is positive law, it is something that is only able to promote objectivity, the
moment u start removing these aspects, this makes law a independent basis of study.
bridge between natural law and positive law is common law theory. common law removes the problems
of natural law theory to a certain extent.
we are no longer using natural reasoning, but rather artificial reasoning.
13th august
Natural reason- there may be unnatural reason as well
Natural law seeks objective morality
But there are going to be things that do not fit in objective morality
Critiques of natural law- objective morality is not implementable. On the micro level, there will be
differences. In the macro level, this difference is generally mitigated. More generaliseable. Still, it doesn’t
solve the problem of whether there can be objective morality- will always remain one of the flaws of
natural law.
Positive law- instruments- will only be able to promote objectivity, removing aspects that influence law.
Therefore it becomes an independent field of study.
On a spectrum of natural law to “the law”, it goes from more subjective element to the objective element.
Bridge between natural law and positive law is the common law theory that lies in the middle of this
spectrum
Common law to a certain extent removes the problems of natural law theory
First problem- objective morality- it is hard to arrive at a point where one is determined as objective.
Even if you introduce one variable that goes against the objective factor.
Basic elements of common law- no way to trace the principles of common law to one sure origin
1.
Unwritten
2.
Followed from time immemorial
These are two elements of common law- the thing leans more on the side of positive law than of natural
law is the fact that they use
3.
Artificial reason, not natural reason
4.
Change.
The judge is going to be the interpreter, the mouthpiece. The judge decides what is being interpreted,
what is the point of interpretation in this case? The judge in this case is at most trying to interpret it as a
political corrective. Common law is dragged through time, xternal factors affect the interpretation. What
is the common collective idea of what should happen? Otherwise you wont be able to get a temporal
understanding of the law.
The interpretations change along with the differing political idea of law during the ages.
In natural law you are supposed to be taking in only natural perspective. In positive law, you need artificial
reasoning, which is legal reasoning. Whether for positive law or common law.
When we talk about the natural law theory, we consider mythological political and other influences. In
common law it also takes influences. But positive law will not consider any other discipline into
consideration, treats law as a separate field of study that is unbothered by what is happening in the
economy politics etc. common law shares features from both sides of the spectrum. The main feature
that common law shares with natural law is objectivity.
What is a custom? Either never been put into words, can also take quasi-oral form as well. Its entiriry is
not in a written form.
Time immemorial- how to differentiate it with other schools? Comparing this with positive law- positive
law always gets its validity because of authority. In kelsen’s work, always following a hierarchy. Talking
about right to health. Grundnorm and constitution are NOT the same thing, maybe used interchangeably
but grundnorm is what the consti gets its power from.
This is the positivist conception, you can find the origin of the law, pinpoint from where.
The positivist theorists do not interpret the law differently. The validity is what is under question. How
the validity function works. They agree on the same things, like “the king has the final authority” but one
justifies it through command the other justifies it for a different reason. The interpretation remains the
same.
Just because something has existed since time immemorial, should we accept that its true? The point here
is that
a.
Endured age
b.
Since it has endured age, it has developed on the experience and wisdom of the people
throughout the ages
c.
Can an unreasonable law pass the test of time? The common law conception says no.
Customs can only exist because of clubbed points a and b.
(BUT this is wrong. Because if we take 1650, and the people from 1650 to 1700 are stupid, then in 1700
the law has already acquired the legitimacy of “time” and “reasonability”. Test of time means nothing. If
someone in 1700 said they wanna scrap the law, someone must have said well it has stood the test of time
for 50 years and therefore it has some legitimacy. At some point we need to stop giving the time
importance because the more time passes the harder it becomes to throw off a bad law. ALL MY
THOUGHTS BTW, NOT PART OF NOTES)
What is natural reason? The internal aspect of a human being that has been inculcated in a human being
by the operation of divine forces. It is naturally existing in a human being as part of nature. Cicero,
natural reason by plato Aristotle etc, they all think natural reason is a part of human being.
Common law believes nothing can work on natural reason, a study of law can only work on artificial
reason.
Natural reason is possessed by all humans- this sentiment is how the law ought to be in the best case
scenario
Artificial reason- law should be interpreted with the lens of someone possessing artificial reason. This
removes the subjectivity of natural law.
What is the function of law? Law is supposed to be for a social function to build stability- but with
subjective norms it will lead to chaos and anarchy (this is what the natural law theorists think). Artificial
reasoning removes this problem by including an objective way of looking at the law.
Artificial reasoning is like customs etc which are about stability. You know what you fall back upon.
Artificial reasoning reduces freedom to think, its up to the judges interpretation and it induces the general
society to believe in a certain thing en masse. This can easily lead to hegemony.
The final point about change- is it possible to bring change to common law? If common law is based
purely on precedentiary or customary value, then how do you bring change?
1. Political environment, whenever it changes there are small changes brought into the common law. Its
like the ship of theseus, the small changes at the beginning are not very evident. But at some point there
is a substantial change, at which point, you start feeling the change.
18.08.2026
Critiques for common law theory
Must be viewed from the lens of artificial reason- it is not for the common people to interpret. For artificial
reason, you need someone who is knowledgeable in law. It is not expected that every single person is
knowledgeable in law. The common person will have the most basic idea of what is good or bad. How
the court is interpreting etc is not something a common person is expected to understand. When one
considers precedents, they have a high level of interpretative flexibility. How a particular judge applies a
precedent is also very much based on the judge that is applying the law. Precedents only pretend to give
you objectivity. The interpretation wiggle room is much more. (legal formalism- closely related to positive
law, but not the same thing. Formalism and originalism are the building blocks of positive law. Also found
in common law. It says when you look at something from the formalist perspective, you look at the words
themselves. Legislative intent- what did the writer want to portray? When one talks about formalism, it is
an assumption.) common law applies precedents with the lens of artificial reason, whereas positive law is
crystallised or hardened- limited to statutes.
What is formalism?




Looking at the text
Assumption that the text could have only one meaning
The role of the judge is to find that one true meaning
Don’t look outside the law- cannot look at the peripheries of the law, have to look at law as one
single isolated subject
Which are the two schools that fit best into legal formalism?


Positive law- trying to find the one meaning intended by the law
Common law- trying to find that one single meaning intended by a precedent, though failing due
to the subjective interpretations of the judges
Natural law- does it fit in legal formalism? It fits the 2nd and 3rd prongs, but looking beyond the law is
present in natural law. It looks at the intersection between ethics, morality and law, applying something
beyond the scope of law in a crystallised form. One of the biggest flaws is that assuming that there is one
certain law- certainty of law (an idea that law is consistent, in legal formalism). This challenge was
highlighted by the realists.
This is where we move away from formalism to realism.
Realism- criticism of common law




Basic assumption- law is uncertain.
Law in rest/text v law in motion- we don’t seek to look at law in rest. We look at law in motion,
how judges interpret the law.
Law/rules can lead to uncertainty- more of a positivist construction, one law with one meaning.
Conflict in rules and precedents and interpretations of those precedents.
Facts can lead to uncertainty- different facts lead to different outcomes. even when facts change
common law applies the same laws. and makes an assumption that all facts fit into same law.
Pigeonhole theory- torts has assumption that pigeonhole theory, criminal law too- set category
and if it fits its applied if not its not a crime. If you do not define the law beforehand you cannot
retrospectively call something a crime. A political motive introduced by the judge is going to
remain part of the interpretation of a law.
If a person does not agree with a different person, and sets a precedent out of bias, it is a wrong
precedent and may corrupt the entire system itself.
Even in a new area or question of law, you have to abide by the precedents and try to fit the current
situation to those situations.
A wrong claim made by common law theorists is, common law is seen as the reflection of the collective
consciousness of a particular society. It is mostly when it comes to the rulemaking. There is a direct
election for MPs. But never for judges. The judges who are not directly elected, cannot represent the
democratically elected ideology of the state. They don’t represent the masses. Common law relies
therefore on the ideas of those who are not democratically elected. There might be inconsistencies in the
precedents themselves. Inconsistency, indeterminacy, systemic unpredictability in the application of law.
The realist school highlights these issues.
CLS and realism both focus on


Structural biases- caste class gender
Other than law
They both rely on indeterminacy. CLS gives more perspective beyond law whereas realism is completely
rooted in how law works.
Now we come to the main syllabus.
AQUINAS
Basic idea of Aquinas- generally when we talk about the other thinkers- there has to be some kind of
political linkage- human nature is to associate politically, and have some sort of political inclination.
For Aristotle it was the end goal. In natural law, nature is the ideal form. Here we were trying to place
reliance on how nature shapes law, whether we call it divine or not. To a certain extent this shows how
morality functions- morality is the building block of natural law along with natural reason. Natural law
assumes universal application- but conventional laws may sometimes have greater application than natural
law- Aristotle justified it through claiming virtue, others by saying it is because the positive laws are
coming to us through the human consciousness.
Aquinas had summary theological- 4 parts
1. Lex eterna- eternal law- eternal plan that the god has for the universe. Blueprint by god.
2. Lex naturalis- natural law- - create the foundation of how it works- part of eternal law which is
discoverable by reason.
3. Lex humana- human made law- created by humans with the aid of natural reason
4. Divine law- scriptures
Natural reason- cicero- stoic- when we talk about human made law, it has to be something in conformity
with the natural law. If it is not in accordance with natural law, it would not be considered a law. This is
coming from lex humana. Positive law contradicts this statement by saying even if it lacks morality, till the
time that it is being implemented by a sovereign there is a sanction that is enough.
The three elements
1. Sovereign to derive law from
2. Command
3. Sanction
Look for these three elements in the Antigone reading excerpt
Beyond that look for the four parts Aquinas came up with
[UMIKA]
18.08.2026
Drawbacks of common law school and then directly into intersection of common law and positive law
Treating common law as completely distinct to both NL & PL but borrows from both - bridge between
two
We were talking about - Natural reason and artificial reason
For someone to have artificial reason, he has to have knowledge of law - without that artificial reason
cannot be applied so every single person cannot be knowledged in law (they may have a basic idea of what
is good or bad)
They may not know how custom is being treated/how court is treating a particular matter
Precedents themselves have a high level of interpretive flexibility - how a particular judge applies a precedent
is heavily dependent on how a particular judge is applying the law - cannot give you absolute objectivity
(pretends to give you objectivity)
For positive law, small wiggle room for a different interpretation (statutes etc - restricting/crystallising
form)
For common law, wide room for a different interpretation (applying precedents, customs etc with artificial
reason)
NOTE - legal formalism most closely related to positive law; formalism, originalism etc are building blocks
of positive law, which you will also find in common law (formalist pov - looking at text), ex. Legislative
intent - what did draftsmen of provision mean?
FORMALISM/ORIGINALISM
a.
Text
b.
an assumption that there is only 1 meaning
c.
role of judge then is to find that 1 meaning
d.
Don’t look outside law (cannot look at peripheries of law, have to look at law as 1 single subject)
(not influenced by other disciplines like ethics)
Which schools fit in best with this ^? Positive law, common law theory - both cases trying to find 1 single
meaning coming from a particular precedent
Can NL be applied over here? Assumed there is 1 single meaning derived from natural reason and the role of the judge is to
find that - so what doesn’t match? Point a and d. [not a text based approach and NL does look beyond law,
intersection between ethics/morality/law]
The assumption that there is certainty in law - theorists challenged this - formalism says 1 single
meaning/consistency of law, however, there are more than 1 interpretations/outcomes of law, yhat is where
you move away from formalism into realism
Basic assumption of realism is - LAW IS UNCERTAIN
Law in rest/law in text
Law in motion
One objective meaning from text, supposed to give you 1 meaning but the moment
you apply law in practicality, there is more than 1 outcome - defeats the basic
assumption of formalism (multiplicity of meanings)
How are judges
interpreting law
REALIST SCHOOL DOESN’T LOOK AT THIS ^
REALISM
1. Law is uncertain
2. How judges interpret it
3. laws/rules
4. Facts
If you’re looking into laws and rules, it’s a positivist construction
In terms of common law, there is the same law and facts change and fit into it (pigeonholing - basis of torts
and criminal law) - criminal law only has prospective application meaning law needs to be defined
beforehand,
In terms of positive law (pigeonholing also applies to positive law)
Laws and rules can be interpreted differently and facts can change ^
NOW WE COME BACK TO CRITIQUE OF COMMON LAW - [realist school highlights these
issues]
1. Common law based on artificial reason - so only going to be based on judges’ interpretation
(assuming there will be 1 single meaning defeats this - judge goes and finds that 1 meaning and
then reveals it to public) (realist criqtiue says that there can be inconsistency in the way the judge
interprets the law)
2. Common law is a judge driven law/adjudicator based law - so bias reflected by judge, is reflected can lead to some arbitrary reactions - can set wrong precedents/corrupt entire system etc
3. Precedents in most cases are blindly followed, ex. In moots, we tend to bombard our props with
all cases are precedent (stare decisis) - results in blind imitation of something already wrong - posed
with new question of law and you have to base your args on something new, but you use precedents
- can lead to wrong interpretation of law [different facts might have different outputs]
4. Wrong assumption of common law theorists that CL is a reflection of collective conscience of
society ex. Demoractically electing reps of parliament - however judges aren’t elected but selected
so can we say that judges represent collective ideology of state? NO - relying on decision of 1 who
doesn’t represent collective conscience of society
5. Judicial interpretations can have other competing precedents - not necessary that all will align with
each
other,
conflict/inconsistency/competing
interests
etc
leads
to
inconsistency/indeterminancy - systemic unpredictaibility in interpretation of law
Common law not directly part of syllabus but helps to understand realism, formalism etc.
FORMALISM → REALISM → CLS
CLS - separate factor of structural biases ex. Issues with race - different standpoints, epistemologies that
CLS relies on (looks beyond law) but both (CLS & Realism) heavily rely on inconsistency/interdeminancy
AQUINUS
#Generally when talking of other thinkers ex. Aristotle, he was talking of some political linkage - human
beings will have to have some political inclinations so as per Aristotle, it was always the end goal - some
politcal gain
Natural law - everytthing came from nature - relying on how nature shapes law whether you call it divine
or not - to a certain extent highlights how morality functions (building block for natural law with natural
reason) - NL assumes that there is going to be universal application of laws
Conventional laws (positive laws) have greater values than natural law (?) ex. Socrates justified it, Aristotle, Plato
Aquinas had a very different ideology; divided into 4 different kinds of law - SUMA THEOLOGICA
a.
Lex eterna - external law (eternal plan for universe that God has/blueprint/plan by God)
b.
Lex Naturalis - natural law (foundation for how this works is natural reason discussion - lex
naturalis is part of EL discoverable by reason)
c.
Lex Humana - human made laws (derive from natural reason - laws by human beings created by
aid of natural reason) [has to be in conformity in NL to be classified as “law” so should an unjust law
constitute law; lex humana is supposed to be reflective of NL)**
d.
Divine law - scriptures
Discoverable by reason - based on how natural reason is present in every human being
Natural reason comes in from Cisero’s understanding and stoics
**positive law contraidcts this by saying even an unjust law if declared by sovereign, can be
considered law
ANTIGONE EXCERPT (CHECK) Look into who is the sovereign, command, sanction, and whether
there is all 4 points ^ - is there divine law?
19.08.2026
Sir discussing yesterday’s Madhav Khosla lecture - style question that was asked - AI trained on weightage data - every single
AI will have some personality/traits - comparing claude, chatgpt, deepseek (claude more mechanical in replies, chatgpt is filled
with jargons) - can you attach personality to AI? Personhood concept - will discuss later, arguments yesterday was mostly in
favour of OpenAI because Khosla was OpenAi counsel (ex. Indeterminacy of law - S. 52 of Copyright Act earlier
treated as “exception” but in this judgment treated as conferring user’s rights) - two different
interpretations of same provision (operation of both is the same, but how do you justify the section? A user’s right or an
exception?)
For a right, there has to be a corresponding “duty” - so if 52 is a right, what is the corresponding duty? If it an exception,
what is the exception flowing from? Changes the way in which the law is read
Based on how formalist/positivist school was applied - direct application of how the theory is being applied ^
ANTIGONE - PLAY DISCUSSION
War in a place called Thebes (modern day Egypt) - 2 sides - Polnyesis (for) v. E (against) (brothers) - father
was Odepus - sister was Antigone, another sister was also there “I”
After the war, both P & E passed
Throne transferred from Odepus to Creon
Creon directed that P won’t get a proper burial (because he was going against Odepus?)
a.
Body of Polenesis should not be given last rites
b.
He should be left to rot on battlefield
c.
Anyone who tries to bury him/give his last rites will be punished to death
NOTE - How would Austin be looking into positive law? Command of sovereign + backed by sanction
All 3 are present here in this ex - point out ^
Sanction in terms of Austin, is punishment
So a. & b. is command & c. is sanction
##Very rudimentary way of understanding law^^ bec certain acts where “punishment” in its purest form can’t
be given ex. Difference between compensation v. fine
Austin’s understanding of law, heavily dependent on criminal law (punishment can be broken down into
multiple parts: fine, compensation, community service etc.)
Austin, Kelsen, Hart etc made in a different time period - law evolved a lot after that but they give you a
foundation
↠ Antigone refused to listen, she performed last rites of Polynesis - she felt she has an unwritten moral
duty (unwritten law of God, everyone should get proper burial and last rites)
Antigone also engaged to Creon’s son
When she was caught, she said an unjust law is NOT LAW AT ALL (natural law take) - Creon has a positive
law take
Creon didn’t listen to his son’s request to pardon Antigone; a blind prophet said that Creon will be punished
by the death of a family member (because he is punishing Antigone) - blind prophet’s take is based on
natural law - Creon said the prophet is taking bribes
Antigone eventually kills herself in the cell - eventually her fiance, H also kills himself
What is the correct perspective? Antigone’s (naturalist) or Creon’s (positivist)?
Hart is a pure positivist - minor detail about Hart’s work which is overlooked - minimum moral content,
every law should have a minimum moral content (so if you look at Hart, story flips despite being a positivist
thinker)
Carl Schmidtt talks of a sovereign being someone that can call an emergency - extinguish emergency
Emergency here is defiance of Antigone - unless he enforces sanction, he will lose his power
Kelsen talks about nomodynmaics - normative system of law - like a pyramid
Grundnorm
↑
laws/legislations/precedents/rules (tertiary forms of law)
Grundnorm empowers sovereign - questioning sanction breaks this grundnorm
What did Socrates say? What if Socrates is antigone here?
Continuance of power of sovereign Natural law won’t always lead to law being moral - outcomes can be different
Can Socrates be called a positivist even though he was the first one talking about NL? Because he followed the law then - it
was due to own morality/insight, origin of that decision was not because of the command of the sovereign - but the virtue he
attached to following that command
20.08.2026
Antigone- the play- MOCK DEBATE
Austin: warring fractions, post civil war state. Sovereign- determinant superior who a group of people
have the habit of obeying. Has the command and sanction. For a law to hold, there needs to be a credible
threat to obey that law. (isn’t this Aquinas?).
1.
Post civil war city state- habit of obedience is already fragile, people are sympathetic to the
“traitor”, heightened risk in crime etc
2.
What happens if natural law is used? If its moral only then it is a law. If natural law
interpretation is considered and the law is declared invalid- who decides what is valid? Religious heads and
priests will decide. They are also acting out of self interest due to a power vacuum. Power is
decentralised, leading to oligarchy. Cohesiveness of the law is lost when you follow natural law. People
have different conceptions of morality.
3.
Accountability of the state is lost, oligarchs describe their own morals. Even if creon is a tyrant,
it is still socially better than having factions. Public cannot challenge any figure of authority because they
cant hold anyone accountable as the head. Social conscience is frozen.
Socrates: dilemma of creon- unjust law is sin, but if I live in a society I would have to live by their laws
even if they are unjust
Fundamental nature of laws must be through natural justice- law may be arbitrary, and we should argue
against such law and change it; but even if the law is unfair we must negotiate peacefully
We must understand we are bound by that law. We have a human insight.
Creon- when he dictates that his son may not be buried- it is an unjust law even to punish traitors- burial
rites in greeks are sacred divine duty- it was right of Antigone to bury her brother
As the prophet said there will be great catastrophe therefore it is divine law and it must be obeyed
We must be guided by natural law and in alignment with virtues- wisdom, courage, justice and temperance
which will make our society and law great
Rebuttal of Austin- ?
Let natural justice be the guiding principle and lead to a better world and laws
DEFINE THE CORE PRINCIPLES FIRST. DON’T JUMP FROM ONE POINT TO THE OTHER.
Plato: LOGOS and THYMOS
Creon is the failure of positive law- justice as each part of the soul and the state performing its proper
function
Antigone- creon’s appetitie for control (thymos) overrides his reason (logos)
The law in Antigone, is made by creon about himself
Creons themes are a faction of one mans land
Unwritten laws invoked by antigone are participation in the forms of justice- eternal unchanging moral
truths
Humans essentially have innate knowledge of moral truth- Antigone remembers a truth she always knew
at the level of her soul- creons laws were not ordained by zeus
Written law v true justice- written laws are prescriptions left by a doctor on a journey. Creon is the patient
who refuses the doctors updated prescription, because it is nto the same as what was written.
Divine law is rational, not superstition. Antigone invokes the god, she invokes rational cosmic order.
Rebutting Austin- law has to be guided by reason. It has no connection to morality per se but its validity
cannot be simply be that someone said so.
Metaphysics v religion v positive law- Antigone says acting on gods command- it is about moral objective
truth.
Aristotle: nomo stedius- particular law. Universal law- nomo scoinos- unwritten natural principles of
justice.
Referencing Antigone in one of his books- conflict between these two laws- is the role of the rulerpractical wisdom of the ruler
Agrees with Austin but beyond command and sanction, must have practical wisdom. Creon exercises a
decree against burial rights of the traitor. Causes an injustice to antigones rights- as the sister of the
brother she wants to bury. Practical wisdom of ruler- should have exercised “epichaea”- exception to the
rule
Socrates rebuttal- peaceful negotiation by whom? Who decides implementation? In the end it has to be
the ruler. Universal law does not always have to be divine.
Platos rebuttal- burial rites are universal, but it shouldn’t have to be allowed because of religious
significance but instead because it is equitable.
Cicero: virtue v the institution
Creon is acting like a divine being with all the power vested in him. The king must also realise that when
he wants continuacy of his powers, he must understand that the people have given him powers, by
establishing a sovereign. The individual comes first then law then state.
Law is not just a manifestation of ?. reason needs a balance. Law is born when reason is not content to
simply verify the nature.
(cant get most of this, speaking too low)
Natural reason- anyone can come up and say what is moral what is not
At the end of the day it will be counterbalanced if a large section of the society is……….?
Contract with the sovereign- shouldn’t become too institutional in nature
Sovereign must be viewd as having power vested by the people
Aquinas: borrows from others’ ideas
unjust human law, what are the limits of state power
by way of being part of natural society- we have an innnate sense of justice as creations of god- universal
law
Antigone believes by way of being human, she has a natural human dignity to bury her brother and she
believes god gave her this right
Res injusta non just lex- unjust law is not a law
Antigone having a moral binding force given to her by natural law- has not only the right to disobey the
law, but the duty.
Rebutting positive law- in a fractured society it is even more important that I have the right to disobey
Limits of state power- political authority is grounded in reason and common good- benevolent sovereign.
Creon refused antigone’s brothers burial on selfish motive and not common good.
There is always a higher law- natural law- any human law must derive from this- competence of human
sovereign must be limited to common good.
Right to resistance- if there is an unjust human law- people shoud hve the right to resist- society guided
by a higher moral compass- not really anarchy
REBUTTALS
Austin- slavery was legal back then- where do you draw the line for dignity? (wouldn’t this support aura
and umika tho). Society at large morphs into what the sovereign believes in. tyrant v oligarchy. (comparing
the worst forms against each other?)
Socrates: against plato- rule of the wise must take precedence over rule of law- but this is wrong since if
the law has nurtured you from birth you are obligated to obey but also to make it better
Against Austin- I don’t obey Austin because of fear of sanction- unjusticiable.
Plato- what happens when law becomes untethered from justice?
Against Austin- creon’s decisions only brought suffering even tho he is the sovereign
Agrees with Aristotle and Socrates (somewhat)
Cicero is about right reasoning aligned with nature- Antigone affirmed natural human dignity
Aquinas- unjust law is not law at all- completely agree with; Antigone didn’t defy the law, she defended it
when the king had forgotten what it is.
Aristotle:
Aquinas- unjust law is not law- Aquinas argues there has to be a duty to disobey- the law declared by the
sovereign becomes important since practical wisdom of the rueler- creon is not exercising this wisdom
but that does not mean Antigone has the right to disobey the law
No religious law required
Agrees with plato- lack of practical wisdom in tethering the law to justice
Cicero:
Tyrant v oligarch- ????????
Issuing the commands- creates society of chaos- if the king wants to stay in power. ? girl idk
Aquinas:
Replies to the rebuttals of my arguments
Austin- how the religious authorities become oligarchs- but this is about natural law, individuals moral
compasss- not organised religion; individuals have innate morality
Plato pointed out- she defends law when the king forgets to
Duty to disobey- moral obligation to defend natural law- it is a duty to herself, not to society necessarily,
just to establish their human dignity.
24.08.2026
Primary information from moving to natural law to positivist law
discoverable by natural reasons, this differentiates from artificial reason in common law theory. how do
we exactly come to law to know about Acquinas:
1.
2.
3.
4.
eternal
natural
human
divine
the techniques used to derive to these 4 are: 1. deduction, 2. particularization
deduction: in family law, the restoration of conjugal rights: rights arising out of marriage. if we dissect
this provision. this is derived from basic principles of how procreation is supposed to work, although
since its written down it might also come in positivist law.
particularization: applying natural law in its purest form is not going to fetch us results, for that u need to
apply that in specification to a particular scenario.
lex humana: has certain degree of natural reasoning, any positivist law if it wont include this wont be
termed as a proper law or good law.
whenever u look into law it generally preferable that it is derived from natural law. but not really necessary
that it is derived from natural law.
fundamental principle of natural law: don’t hurt someone else, in terms of poivoits law, u follow this
natural law, but for enforcement of the same u need some form of punishment. it can even an economic
harm. enforcement is something that is more on the lines of natural law, and this is a positivist law theory.
it has a coercion factor that drives the non-natural parts of law, it is like to coerce someone into following
a law.
if all if these parts are followed then positivist law is in tune with natural law and reason.
natural reason & artificial reason: natural originates internally, whereas external reason comes from
external factors, like study of law, or in terms of sociology or criminology, these are the things that affects
the reasoning of a person.
flaws of common law: u need to have legal knowledge to make sure how common law works.
artificial reasoning of someone who is a criminologist: he would obviously apply criminology rules to
theories. criminology mostly is social science. and it is different from legal studies. it is like science behind
criminal behavior. it has a theoretical and imperial part. impedivity is not always applicable in study of law.
2 perspectives:
1. every single law has to be moral to be considered to be legal.
2. law or you have to ensure conformity with natural law.
anything not moral, can’t be law, and can be termed as deficient or defective in nature. essentially it
doesn’t lose its nature of law.
Lex injustice non ess lex: anything contrary to higher moral reason, is not considered to be law is the premise
of the first perspective. here moral is based on moral values of a certain time period and society,
essentially dependent on perspective.
in second part even if law is not in lines with the moral values, herein now we look into how a law is
created. positivist law is more on legitimacy of the law-making process. positivist law is not concerned
with the content of law. ex. draconian provisions in UAPA were made from proper process. it is more
about whether a legal process was duly processed or not. validity of the law is conserved with the content
of the law.
a lot of positivist theorist just disregards the existence of natural law altogether.
is it easier to deny metaphysics (derived from theology, crystallized but less than positivity – herein its
more like concept, but in abstract form), or positivity (testing abstracts), or theology (super-entity)? –
theology. then metaphysics.
Positive science/ positive sociology/ positive criminology Positive term is used for empirical method.
what will you test in law empirically? its not purely empirical legal research.
difference between doctrinal vs non doctrinal research?
NEXT CLASS – AUSTIN
25.08.2026
Why do we try to replicate the scientific method in non-scientific fields?
Is science purely objective in nature? How can you prove this? Few assumptions
1.
Science is objective
2.
It is value neutral
3.
Multiple movements to create generalisable and replicable processes
When we consider science as objective, what do we mean?
How we collect data, etc- this is subjective process that each individual physicist conducts; is research
objective? Even the topic of research is depending on the funding agency.
Sampling in the research- if all 100 subjects of your study are from west Bengal, then there is a
homogeneity created. Science is replicable but the conditions are never the exact same.
Some guy said we need 2 tons of uranium for a nuclear bomb, Oppenheimer after 15 years did it in 60
kgs for the same nuclear bomb
Science’s truths evolve along with the temporal plane- it cannot be generalisable across time
Karl popper said this
Where is the data being collected from, and how is it being interpreted? The area data is collected from
may be homogenous (on purpose or on accident), when you conduct the research, if your sample size is
50, the possibility of you getting all 50 of the homogenous samples is higher. The more samples you have
the less likely it is that you have a homogenous sample.
Interpretation- is it possible to interpret something without theoretical backing? To come up with an
empirical result without theoretical backing? No. this is why literature review is important. Literature
review is everything that is already there at the point when youre writing the paper. Methodology
becomes important and we try to replicate scientific values rather than how science works in itselfscience is driven by natural principles, law cannot be driven by natural principles
In evidence, what determines if something is relevant or not? If only we determine something is relevant
then only it will be a part of research- if we try to do the same with any other subject, how to decide
whether it is something that can be researched under that subject? It always has to be a relevant fact under
that law. Here we create two problems
1.
Fact becomes law-dependent
2.
When it comes to interpretation of law, it is language dependent- how a person perceives a
particular language is also relevant. If a person who is extremely critical who analyses all possible
interpretations and linguistic variations of a word versus a person who is only reading the black letter of
the law both read the same statute, they understand different things. This is called the indeterminancy of
law.
(previously we have indeterminancy of fact, law and now also about linguistics.)
A radical feminist and a radical misogynist have completely different understandings of the same law
Thomas Kuhn’s theories
Don’t try to prove a hypothesis, try to disprove a null hypothesis.
Why must we take this statement? It is difficult to conclusively prove something, it is easy to conclusively
disprove something. When you corroborate a discovery, then the validity of the original discovery goes
up. If you falsify something, the validity goes down.
Selvi v state of Karnataka- narco analysis, brain mapping, lie detector test
Two ways
1. Court can outright reject it
2. Or court can accept it
Law is working on whether the court accepts or rejects it, does not speak of corroboration or falsifying
Corroboration happens through facts, or determination through forensic science tools
The relationship alters when we come to law
Is science white male dominated? yes, it was white male dominated.
The factors which have been the most important for men will be highlighted. Womens health is extremely
under-researched historically.
Males have always been seen as the standard human being. Aside from DPDPA, is there any act which
mentions she in place of he? No.
Objectivity of science is also depending on funding. The nation may put forth their own interests beyond
the interests of science. Whatever they perceive as important to the state is highlighted.
External factors make science non-objective in nature, to a certain extent.
27.08.2026
Difference between Positive Criminology and Non-positive Criminology
Positive disciplines are always going to be rooted in quantitative inputs. In case of quantitative analysis,
the answers are always in numbers- uniformity? It is much easier to parameterise and replicate data
(quantifiable in nature).
The moment data is taken in a qualitative format- Non-positive.
LIKERT SCALE - converts qualitative data into quantitative data.
When we are looking at positive sociology/criminology-mostly looking at numbers. But practically no
research can be purely quantitative- the basis has to be some kind of theory, which is by nature qualitative.
Positivity in relation to law does not mean replicating science but trying to borrow from scientific
principles- does not need to be as structured or rigid.
What are the posits of law? Core factors - whether it has been made with adequate authority.
Some kind of human agency has to be attached to it- otherwise not positive law.
We are trying to trace the origins of legal systems in positive law.
Morals are considered irrelevant when we look at positive law- natural law always looks into the content
of law, positive law always looks into the validity of law (whether the sovereign has created it and whether
it is sanctioned).
Pedigree requirement- positive law will have to have a proper process to create the law.
Separation Thesis- Conflict between positive and natural law- what law ought to be (will always take
morals into consideration) and what it is (textual basis).
Operating on the same basic theory but coming up with different models- Hart is inspired by Austin’s
work but replaces the sovereign with secondary rules, Kelsen traces it back to the Grund norm. In the
case of Carl Schmitt, goes back to the idea of friend-enemy distinction where he characterises the
sovereign as the friend.
There is a relationship between natural law and positive law- even if reason does flow from God (natural
school) it crystallizes into positive law when that reason is implemented by humans (positive school).
Exception- HLA Hart will always come up with a point (minimum moral content of law- definition is
vague so that it can accommodate change) that differs from the other positive law thinkers.
Critique of Positive LawDoes not take social/other external factors into account
Does not look into morality
Evil law can become a law
Infinite regression- who gives the validity giving-agency their validity?
[CHECK UMIKA AS WELL]
31.08.2026
AUSTIN – Impp in relation to how the other thinkers are deviating from his theory
why his work cam into being? or what is the rationale behind his work?
he starts differentiating what is natural law and what is positivist law?
law properly called so and law improperly called so is what he talked about
law properly called so – positive morality
one thing to determine whether it is positive law or now?
1. determinacy part
2. questioning a-priori methods – basing your reasoning on pre-existing untested data or values or
laws. it doesn’t look into validity portion of a thing in terms of valid legal procedure. herein u
start with the assumption that the existing knowledge is free from any kind of bias, or any other
external factors like historical or societal factors. as these factors always effect on things how they
were before you.
points of deviation from natural law:
1. away from reality concept
2. based on a-priori methodologies – not tested
3. positive law doesn’t recognize natural law as a law at all; it recognizes it as beyond the basic
province of jurisprudence
4. unverified/untested methods – this is only the validity filter as it is not actually going and testing
something
5. what do u exactly understand as law by Austin
in science testing is gonna be something like experiment or imperial ones. in case of law it is going to be
validity filter it would have posits of humans.
Austins work is the more rudimentary version of hart’s or kelson’s work. how did hart contextualize
Austin’s work, as he used it as a springboard?
what is a command? who is a sovereign? how do u contextualize sanction?
hart’s calculation of Austin’s work:
1. laws are commands
2. it is the analysis of legal concepts- Austin is going to refer to this analysis as a formal analysis.
formalism (one single meaning of law, drafter’s intent) and realism are the 2 concepts we took
into consideration earlier.
3. deductive nature of positive law – since it is something of formal analysis then any decision
coming from it is deductive in nature. command is the positive law so it is unchanged and the
truth and anything based on this law would be deduced from this law.
4. doesn’t look into morality/moral judgement
5. law laid down by humans (positum) – morality is not looked into then why is it talking about
positive morality? and isn’t morality something that could be induced by human agency?
for something to be a formal analysis we need to keep in mind that it has to be distinct from historical
sociological economical criminological enquiry. essentially in the formal analysis no other form of enquiry
is to be included, like no other disciplines or domains. this makes us shift away from premise of how
formalization works.
how habitual obedience works? – any opinion or command given by judiciary is a tacit command. Austin
works with general command. if a particular case has a particular command, then it is specific command.
if same logic is applied somewhere else then it is no longer a tacit command. in Austin the stability of the
society is also considered, like a rational human being, it is assumed he would not go beyond the pretext
of regular things. social realities is in sociological school. there is something by kelson.
commands is by Austin. divided into general commands and particular (tacit) commands, particular
commands are not covered in Austin. kelson treats judicial things as a valid command and take
precedence into account.
Morality – beyond the ambit of positive law. not considered to be law at all. – in case of natural law, it is
flowing from divine, natural reasons, God. this is different from positive morality cause of agency.
Positive morality – law improperly called so – law of passion/social behavior. why is it separate from
morality? posit by human agency. moral disapproval. for the filters – like the type of command for the
quality of law. the moment the command is backed by the filters.
Positive law – law properly called so – 1. command, 2. sovereign, 3. sanction. it is different from positive
morality based on sanction portion. only three things relevant in case of Austin. he wont deviate from
these 3 parameters.
What is command?
[VINIE]
Why austins work came into being? What is the rationale behind austins work?
Command theory- what is falling within the ambit of law and what is not in the ambit? Law properly
called so v law improperly called so
Law improperly called so- he refers as positive morality
In austins work- there has to be one thing that determines whether a thing falls into positive law
Questioning the a priori methods- what is a priori? Basing the reasoning on pre existing untested data,
values, laws- not about validity
Natural law looks into content and positive law looks into validity
A priori methods are those when it is assumed that existing knowledge is true, free from bias and external
factors or economic or historical factors
These are the factors that are always going to influence the existing knowledge in reality
When you start questioning the a priori methods, you enter into positive territory
Posit- it is positive by human nature
Critiques of positive law v natural law
1. Natural law- utopic concept- away from reality
2. Positive law doesn’t recognise natural law as law at all- it doesn’t even recognise it as positive morality
even
3. Natural law is unverified hypothesis
Even positive law is not really tested
In hart’s works even, he never really tested what makes a primitive or developed society
Once you test something it falls in the sociological ambit and not the legal ambit
What do you understand by law as per positive law?
When we talk about science, the testing is the experiment, or empirical testing
In case of law, the testing is the validity filter which means that there are posits by human agency
Austins work is the more rudimentary version of hart’s or kelson’s work
How hart contexualised austins work- most of harts work was extension and critique of austins work
As per Austin, command of sovereign backed by sanction is law. What is a command, who is a sovereign,
what is a sanction? Look into harts calculation of austins work- laws are commands.
Harts tabulation1. Laws are commands
2. It is the analysis of legal consensus- formal analysis
Formalism requires text- assumption of one single universal meaning of law
Hart considers law as worth pursuing, also that law’s pursuit has to be separate from any other disciplinehistory, sociology, economics, criminology- all of these are beyond formal analysis
A formal analysis only looks at the text of the legislation- looking at the interdisciplinary part of law,
moves away from positive law and instead you move towards other schools like the sociological school
Austins work lacks the fillers present in other theorists’ work
Austin- we don’t refer to common law-refers to two commands- general commands and particular
commands- a precedent would be a specific command, and therefore Austin does not consider it a law;
kelson considers through the filter of validity- not just legislative administrative etc, as source of law
Austin assumes that rational human being will not go beyond the bounds of given law
3. Any decisions that come from harts tabulation are deductive in nature.
Culpable homicide v murder- also sanctions issued by sovereign- can deduce whether or not a certain
action falls under the given offences- can deduce decision from the given law- this is the deductive nature
of positive law
4. It does not move into moral judgements or morality at all
5. Law laid down by humans (it is POSITUM- posit from human agency)
If morality is not involved why were we talking about positive morality? Isn’t morality also something that
can be posited/induced by human beings?
If we use the word posit to understand morality v positive morality v positive law- things that look similar
to law but are not actually law
Law of social behaviour, fashion, interaction (language), of a game- laws that are improperly called solaw properly called so will have three things (command sovereign and sanction); the most that can happen
due to the derogation of a law improperly called so is moral disapproval- sanctions on the other hand
must be mentioned previously, and must be concrete
Positive morality shares characteristics with positive law but has differences in sanction
In the case of morality, there is no sanction. But purely from a natural law perspective, one should have
punishment when they derogate the natural law, though in the positive perspective this is not considered.
The filter is what gives the command the quality of law. Anything can be passed by the sovereign as a
command- but once it is backed by a filter (different one for each philosopher), it assumes the role of a
law.
When we talk about Austin- the only three relevant things are- COMMAND. SOVEREIGN.
SANCTION.
MORALITY
POSITIVE MORALITY
Not law Law improperly called so
POSITIVE LAW
Law properly called so
Natural law flows from
1.
Divine
2.
Natural reason Has the word positive in it- posited by human agency- derogation leads to moral
disapproval alone
Posited by human agency, derogation leads to actual sanction or punishment
If sir says submit projects by tomorrow or face a penalty- there is command backed by sanction but sir is
not the sovereign
East india company had command and sanction in india but was never a sovereign
A sovereign is never subordinate to anyone else
01.09.2026
command - how can it be differentiated from other desires of Socrates.
Under austin:
1. every law is a command under austin
2. intimated or expressed to do an act or not to do a particular act
3. if not you will be visited by ‘evil’.
is expressed desire of a sovereign a command? polynesus shouldn’t get a burial – if the king says this is
enough? NO. if the king says to not give a burial and if they give one they will be punished by death, then
that is a command
as per austin the sanction part is indispensable when it comes to command factory.
the moment there is a command there has to be an attached sanction.
if there is a harm then there will be a duty
right to privacy – duty is that u will utilize the privacy in a way that is not harmful to people around u.
data protection – right or duty – imposing a duty on someone to protect one’s data. I have a right to
erasure, someone else has a duty to erase it at my behest.
similarly when there is a command then there has to be a corresponding duty.
if there is a duty there has to be a corresponding right
cylical process
in case the command is disobeyed, then a sanction will get triggered. if the sanction triggers, then the
command is disobeyed. essentially both will exist together. any disobeyed command will result in a
sanction.
what is a positive right – ex. right to education, irrespective of anything one has a right to get educated,
the duty is of the state to provide free education till class 4, and also ensure that one person have the
ability and facility to go till class 8. this is a positive right
what is a negative right – preventive right, you can stop people from doing things, to infringe upon u. ex.
property rights, ipr rights.
sanction is a visitation of evil, so does a command give rise to reward?
sanction could be a conditional good or a conditional evil – (Locke, Bentham, Halsey) – in perspective of
conditional good, there is no way in which you can force someone to do something.
command theory
conditional good – non coercive – locke, Bentham, Plato – beyond the rims of jurisprudence according
to austin
conditional evil – coercive – Austin
reward and fear both work as motivation?
which one will have a higher degree of compliance, hence one cant really force someone to comply with
anything
I zoned out
1st September
In austins conception
1.
Every law or rule is a command
2.
Intimated or expressed to do an act or forebear from doing an act
3.
If not you will be visited by “evil”
Visitation of evil- sanction portion of austins work
If there is a desire of the sovereign does that make it a command?
Polynesus shouldn’t get a burial- if the king says this is this enough? No.
As per Austin, the sanction part is indispensable when it comes to command theory
If the king says don’t give burial and if anyone does so they shall be punished by death- this is a
command
The moment there is a command there has to be an attached sanction
If there is a right there will be a duty
(privacy is a right- the duty is that you will utilise the privacy in a way that is not harmful to the people
around you)
Data protection- imposing a duty on someone to protect one’s data- I have a right to erasure, someone
else has the duty to erase it at my behest
A right will always have a corresponding duty
Similarly, when there is a command there has to be a sanction, otherwise the command is improper
If there is a duty, there has to be a corresponding right- if there is no right then the duty is working in
vacuum- duty of the state to protect the environment- corresponding right for the citizens to have a
healthy environment- both right and duty cant be isolated from each other
Cyclical process- if one exists the other must exist- if one is triggered the other is also triggered
If there is a command disobeying leads to sanction, if there is a sanction you understand that there was a
command that was disobeyed
Positive right and negative right
Positive right- right to education- there is a duty on the state to provide you education
Negative right- there is a duty on other people around you to refrain from infringing on your intellectual
property rights
Command may give rise to a reward
Here we bring in other thinkers- reference them to understand better
Locke bentham and (olsi? Halsey?)- command can be both conditional good and conditional evil- can
have both reward and sanction
If you perform the last rites of antigones brother you die- sanction- coercive power inherent in the
command theory
If you come up with this invention you get 20 years of living at the palace- reward
If the person does not manage to invent according to the kings wishes- in the case of a conditional good,
you cant force someone to obey the command- such as to invent something- no coercive power
Austin only considers the part of conditional evil to be a command, not conditional good
Lockes natural rights and labour theory- if you invest some labour you get the fruits of the labour as a
reward- natural rights- corresponding duty on someone else to not infringe upon your work- however,
can someone punish you for not working? No.
Can reward and fear both work as motivation? Yes. – bentham locke etc
If there is a bounty on someones head, and you take that person to the king for a reward; or if there is a
fine on you for not finding the person, then there is a fine imposed on you- the second scenario is more
likely to succeed, because of coercive power of sanction
Factors to keep in mind when talking about command theory
1.
Sovereign (A)- should be getting habitual obedience from her subjects (B); society is a
culmination of these two
2.
B must habitually obey A
3.
B must have an obligation to obey A
4.
The command has to be general, apply to a particular class.
5.
A should not be habitually obedient to another person.
Sovereign command and sanction are the three variables and the 5 factors are how these variables interact
Distinction made between general and particular commands
1.
Command should be applicable uniformly in terms of
a.
Time (should be temporally consistent)
b.
Application to a class of people
General- the command that generally obliges is a law
Particular- not a subject matter of law
There is some indeterminancy in common law
Sanction follows the command- rather than them being intimated at the same time- they will not form a
part of law; judicial decision comes after command has been issued- makes it indeterminant and then
inconsistent with what the sanction was supposed to be
Judicial decision only makes litigants and only some people obligated
Tomorrow we’ll take up black’s critique of Austin (the same black from the black law dictionary)
2nd september
What classifies a general and particular command? Black distinguishes between the two defining them as
follows:
1.
Generally obliges the members of a community or a class of people- general command
2.
Particular commands are applicable individually or to a determined group- particular command
Black considers both types of command to be a part of law
Austins critique of blacks work is rooted in one thing- that command should not be one off.
1.
Temporal nature to the command/temporal factor- if a command only exists for a transient
period of time they are left out of austins conception of law
2.
Whether or not it is applicable to the general population- no. of people its applicable to; if a
command is applied it must be on the bulk of society
Existence of the sovereign- what is the difference between a political superior and a sovereign?
What are the parameters of superiority? Who is referred to as a superior? The one who has power- what
sort of power? Wealth, rank, virtue (from natural law), political superiority
Only a political superior can become a sovereign- they cannot if they are superior in some other factor
like height
What does power do? Power is supposed to be something that can affect others. It is the power of
affecting others’ will. The professor may ask everyone to hand over their phones when they walk into
class but they cannot really enforce it; how can a political superior enforce this? Through sanction- motive
of fear- one affects someone by pain/evil
If the students are aware that checking a students phone is barred to the professor, there is no motive of
fear and therefore the sanction will be unenforceable
Whoever can obligate another person to comply with their wishes, that person is a political superiorthere will be multiple political superiors acting under same sovereign- this leads to bifurcation of power,
factions of power- goes against austins centralised model
Austins exceptions
These are all laws that are not recognised by austins command theory
1.
Declaratory laws/explanatory laws- sanction is absent- Indian contract act doesn’t mention any
sanction in the first few chapters- S299 of the IPC
2.
one law that repeals another law- in patent act 1979 is followed now. We had an 1911 act too, the
moment the patent act came in, a part of the patents and designs act became inoperable and they were
brought into the new act. Then in 2000 designs act came in repealing the 1911 act entirely. The action
here is repealing, it is a command of the sovereign with no sanction attached.
3.
imperfect laws- laws which do not prescribe any kind of punishment
4.
right creating laws- intellectual property- property creates a negative right- if you invent you get
protection but if you don’t invent then there is no sanction on any person.
5.
customary laws- passes through the judicial filter
cal hc- decision- particular command- will the cal hc judge be considered a sovereign?
Austin- formal analysis- textualism/originalism- the judges are only there to interpret the intent of the
legislature- judgement that has precedentiary value in one state is not applicable to other high courts, it is
limited to persuasive value, as is the case in the supreme court as well. Therefore in austins defn the
judges cannot be considered as sovereign
What is sovereignty? In austins correlatives, we have command-sanction cyclically.
Where there is a sovereignty, there is subjection (the subjects of the territory). When there is a sovereign,
there are subjects. This is imp to understand how sovereignty is applied in austins command theory.
Whenever we discuss sovereignty as a general topic, where will it be applicable? If there is a sovereign,
they should be having control over their subjects. It is applicable in that particular society where the law is
applicable. It has to have certain characteristics.
Whenever sovereignty is discussed it must be applicable to a society/ inseparable from an independent
political society.
1.
Who is the agency setting the positive law? We talk about posits. Who is the human agency or
which part of political society sets up positive law? Positive law is set by the sovereign. Can be a
monarchy or an aristocracy (meaning in this context that there are multiple people). They have to
therefore be considered supreme/superior to the others in that society because the subjects are in a state
of subjection to the sovereign.
POLITICAL SUPERIOR
SOVEREIGN
Majority/ bulk of the independent political society have to be in favour of the sovereign
Habitual obedience (must be read together with majority/bulk point always)
Not habitually obedient to another (determinate human superior)
In a family structure, father mother two daughters and sons each.
Lets say the father is the sovereign. All five of the family members habitually obey the father. But the
father might be habitually obedient to another, and politically inferior. Therefore the father cannot be
sovereign. In the same manner, the professor is not the sovereign in a class of students.
What is the meaning of the term independent political society? A society is made up of the sovereign and
the subjects. The subjects are always under the command of the sovereign. How then would we consider
the subjects independent in nature? This is different from austins conception.
The sovereign is independent and the subjects are part of a political society- this is austins conception.
What makes the subjects political in nature? We need to set the parameters for that first.
Date: 02/09
How Black classifies general and particular commands
General commands generally obliges the member of society or a class of people. It can be either of the
two. But particular commands are only for single persons, are applicable individually or a determined
group.
Black considers both general and particular commands being part of law.
Austins critique of blacks work is rooted in one thing- that command should not be one off.
Temporal nature- lets say a command exists just for one day or for a transition period of time. Such are
not considered under Austin’s.
Whether or not it is applicable to the general population- no. of people its applicable to.
Whenever you say you are a sovereign, what are the parameters you take to see if its sovereign or not.
Difference between political superior and sovereign.
Parameters for who can be a superior- someone who are power. What kind of power? It comes from
wealth, virtue, rank or political superiority? Different parameters for saying someone is superior. So, is
superiority a parameter for sovereign? You can only say yes when the superiority is in terms of politics.
Power affecting someone else’s will.
Only when there is sanction or fear, you can affect someone’s will.
There can be many political superior this leads to bifurcation of power, factions of power. Goes against
Austin’s command theory. He believes in one political superior.
Exception recognized by Austin- Declaratory law or Explanatory laws. Here sanction is absent.
Second, there can be one law that repels another law. Example- we follow the patent law but before we
had patent and designs act 1911 but the moment patent law was enacted, some of the provisions of the
previous act were repealed. This is a command of the sovereign without any sanctions.
Imperfect Law- it gives you certain substantive law but do not create punishment.
Right creating laws. Ex- when you invent, you get certain incentive under patent law. But when you do not
do so, it does not create any sanction.
Customary laws. How does a law become customary? Over a long period of time or the moment it passes
to the judiciary.
Do we completely disregard precedent?
Ex- Calcutta HC gives a judgement which becomes applicable throughout the state of WB. Is the
Calcutta HC a sovereign then? What about the centre?
A judgement which has precedent in the state of WB will only be persuasively applicable over other state,
not directly applicable.
In terms of sovereignty what can make co-relatives. If there is sovereignty, subjection becomes corelative.
Lets say when you talk about sovereignty as a general topic. Where is sovereignty applicable? Applicable
to the society. It is inseparable from an independent political society.
Whenever you talk about independent political society. First who is the agency setting the positive law.
Who is this human agency and which part of the positive law is set by it? Positive law is set by the
sovereign. Now, sovereign does not necessarily have to be a one single person. It can be classified into
monarchy and epistocracy. If they are setting this positive law, they have to be considered supreme or
superior. Why supreme or superior? Because the subjects are always going be in the state of subjection to
the supreme.
What is exactly going to differentiate sovereign from other political superior? Are they same or different,
if same then why use different words?
Political superior sovereign - Majority of the independent political society in favour of the sovereign,
Habitual obedience and that they are not going to be subjected to habitual obedience to someone else.
Society has to be independent and political in nature. Can you say subjects are going to be ever
independent? Different interpretation from Austin’s.
Sovereign is the only one going to be independent.
What makes the subject political in nature?
03.09.2026
what are the characteristics of independent political society?
whether subjects are independent or not?- in political and independent society, they have sovereign and
subject quantities, sovereign would be the independent portion of the socirty.
role of subjects?
what makes sovereign independent?
what is making up this definition of independent political society? - if there is a determinant human
period to not be under habitual obedience of any human/political sphere. we are supposed to have
habitual obedience from the bulk of the society. the superiority comes from bulk of the society, the
minority can’t really do that. once the bulk of the society is obedient to the political superior then he can
be termed as the sovereign
relationship between political superior (independent part) and dependence is similar to how a sovereign
and subjects are supposed to work.
habitual obedience: 1. how a command is supposed to work? - subjection should ne habitual and not
transient or rare (regular and reconning), 2. The habitual obedience of the subjects to the command of
the sovereign makes the society political (only in terms of the subject)
ex. natural law school, Socrates and Plato, under Plato it was mentioned whenever the society is driven
too become political, it happens because it habitually obeys the sovereign. the sovereign is independent
(sovereign is the only independent part) because it is not under the habitual obedience to another human
agency.
Bulk of the society/ Majority Rule/Generality of the society must be habitually obedient to the political
superior.
anarchy – against centralised authoritative power, not against the law.
in a political society, there must be a determinant sovereign to whom the people are habitually obedient.
if there is more than one political superior with the capacity to issue commands, this could result in the
existence of multiple and potentially conflicting rules within the society.
where there is no single determinant sovereign whether the power is divided among different individuals
or groups, or exists through decentralised pockets of authority there is no unified system of commands
or clearly established hierarchy of power.
according to austin’s theory, a society that does not exhibit habitual obedience to a determinate sovereign
cannot properly be regarded as a political society; rather, it would be characterised as existing in a state of
nature or a state of anarchy.
let’s say there is more than one political superior, they are divided into 2 parts and not following a
common political superior. the 2 states formed here should be governed by a sovereign who has a
considerable amount of habitual obedience, this is cause if there is minute amount then that might lead
to another bifurcation, cause that would lead to polar environment.
both people from the inside and people from the outside who will determine that who is the sovereign.
externally it could be perceivable to who is the sovereign.
occasionally being under obedience to someone is fine, but the superior should not obey another human
superior (habitually).
transient obedience to a political entity, this doesn’t make India as a state that is not sovereign and
politically inferior. viceroy can be the political superior but they will not qualify as a sovereign in this case.
exceptions
international law societies:
1. independent political societies: these are societies having a determinate sovereign who receives habitual
obedience from the bulk of the society but does not habitually obey any other human superior. when
such independent political societies interact with one another, they form the sphere of international law.
according to Austin, international law is not positive law in the strict sense because there is no common
sovereign above independent states who can issue commands to them and impose positive sanctions.
therefore, international law is regarded by Austin as positive morality, with its rules being established by
general opinion and enforced through moral sanctions, such as the fear of hostility or other adverse
consequences.
2. independent but natural societies: these are societies whose members are connected through mutual
intercourse but are not members, either as sovereigns or subjects, of any political society. since there is no
determinate sovereign to whom the members habitually obey, such a society is not a political society in
Austin’s sense. it is therefore described as a natural society, society in a state of nature, or society
independent but natural.
3. political but subordinate societies: these are societies that are politically organised but are subordinate
to a larger independent political society. the members of the subordinate society, including its immediate
political superior, are ultimately in a state of subjection to the sovereign of the larger society. tor example,
a province governed by a viceroy may constitute a subordinate political society, since the viceroy exercises
political authority within the province but remains subject to the ultimate sovereign of the larger political
society. thus, it is political, but it is not independent or sovereign.
types of sovereign
1. monarchy – one member, simple or pure (also called simple or pure sov)
2. aristocracies – Group of People (The group qualifies as sovereign collectively, but severally they
will be subjects). types: a. Oligarchy- Very small portion of the population is a part of the group
b. Aristocracy- Small Portion c. Democracy- Largest in number of people in the group
07.09.2026
Synopsis- introducing the project, statement of problem, research questions or objectives, hypothesis
which encompasses the questions, methodology
Keep the hypothesis simple
CRITIQUES OF AUSTINS WORK- HART
Oversimplistic idea of how law is supposed to work- there are only three components- keeps a lot of
things beyond its control; to make the concept simple, many things were left out (variables)- no way in
which those defects can change the defn of law
Sanction- mostly agrees with criminal law
Was obliged v had an obligation- in the background of the gunman’s fallacy- if I point a gun and ask
someone to give me all the money in their wallet, the fear makes the person give it up- death is the
sanction. The person that gave their money- did they have an obligation or were they obliged to give the
money? The person was obliged to give up their money, didn’t have an obligation. If the sanction was
something as small as pinching, then the person is no longer obliged
In case of Austin- its sanction. In case of hart- its called social pressure- due to social obligations.
In austins work, can a private right be created? Who is the sovereign, where are the command and
sanction? A private contract between two people cannot be conceptualised in austins work.
Private law was never recognised as part of the austins conception of law. The sovereign has the law of
nullity, the right to nullify a transaction that the sovereign disagrees with.
However, there is no framework given for transactions that do not directly involve the sovereign.
No one can force one to enter a contract- this is therefore beyond the purview of Austin
Unless there is a litigation regarding a contract, there is no right that arises.
1. Most of the times austins work resembles criminal law
2. Does not recognise other kinds of rights that exist- private rights
Under hart, there are two kinds of rights
1. Public rights
2. Private rights
Under austins work, no authority has any power beyond the sovereign. But hart says in a real world
society, public rights are secondary rules (right to adjudicate/legislate- delegation of power is absent in
austins work because then it would not be the work of the sovereign.
Primary rules- abortion laws- have to be first recognised as a law. Once recognised, it is a primary rule. A
change has to be affected to enforce this rule, and that is secondary rules. Rule of recognition, rule of
change and rule of adjudication. This makes up how the secondary rules control the primary rules.
The control of the sovereign- delegation of authority is not observed in austins work
What is positive morality, positive law and natural morality?
In harts perspective, there are certain rules that exist without a prescription. However, it dosnt exist
without human agency. It is not mandatory that there has to be a prescription.
Ex: rules that cause societal pressure.
There is no sovereign requirement in harts work- laws are going to be changed by the secondary rules.
08.09.2026
In Hart’s work the sovereign is substituted by rules
Austin’s command theory fails to incorporate rules- it does not have rules which give authority to the
command issued. If we remove the sovereign- what would give legal effect to the command and the
sanction?
Hart- the political superior doesn't decide how the law works, it is going to be the primary rules and the
secondary rules.
Antigone- closest to the command theory. Creon- issuing a command- it is not just going to be his
command which will result in the law- ‘anyone trying to bury P will face death’- this is going to be the
primary rule. Once you come to this primary rule- it is issued by the state. The secondary rule- rule of
recognition- the moment it comes into existence it is going to give primary rule the legal recognition to
become an actual law.
Who is the official who actually recognises the primary rule? Even if the sovereign is removed- there is
going to be law due to the primary rule- and then the cyclic process continues- and then the question
remains- where is the primary rule originating from?
You cannot have a single derivative or point from which the law comes into being. Hart answers this
question by pointing towards the gunman example.
Whether or not a person feels fear- Austin’s theory derives from fear. How law functions and how fear
functions. ‘Was obliged’ factor will always come in the predictive part of law- it is very different from
‘having an obligation’- can you say that B was obliged to pay money to A because he was threatened to be
shot to death? Can you say that B was obligated to pay A- was it a general obligation that he had to pay
the money? Can you say in 100% cases that B will pay A the money? If it was a GLC1 gun, nerf gun or a
water pistol- or if the money was his entire live savings, rupees 400 or the metro card- if these variables
are introduced- what will happen? Life savings+glock- B will transfer the entire savings cuz if no life no
savings, +400 and +metro card- B will give the money. Does the situation change if it is nerf gun+entire
life changes- yes it does- he wont give it- same with +400 and +metro card- he wont give it.
Hart’s work- pre determined obligations effectuated by social pressure- it is not individual pressure.
Whether or not you have an obligation to do it, not whether you are obliged to do it.
Command, sovereign and sanction (fear)- the counterpart of these things in case of Hart- Primary rules,
secondary rules and social pressure
Primary rules will specify what is the offence and what is the punishment for these offences. That itse;f
can have both the components of command and sanction- what it lacks is the sovereign part- the
sovereign part is replaced by the rule of recognition, the rule of change and the rule of adjudication.
Sanction is what is the punishment- social pressure is why you will follow it- fear is the social pressure in
this case- cuz people have to be part of the society and in the society.
In the case of Austin- if you steal bread- you need to pay 20 rs- there is a sanction- at the same time there
is also a command being issued by the sovereign- is the fear factor enough to keep people from doing it?
Now keep increasing the value of the bread- 100 rs, 1000 rs- is it worth paying that much money for
something which is worth 20 rs. Now 10000 rs- this would make no sense- the indeterminacy will make
the fear factor come into play- cuz that high fine will make no sense and therefore there is fear of
sanction.
Social pressure in case of Hart- people’s perception of you is going to change- social pressure will give
rise to what is socially acceptable- it is violating the law- it is not the amount of fine, the fear and the
sanction- rather the fact that you are stealing which is going to be seen as violating the primary rules
which is going to create the social pressure. If you keep stealing bread which is not allowed- social
pressure will keep rising and people will start seeing you in a different light- social perception will change.
Primary rule- the rule imposes a duty on you- automatically there has to be someone who has the right to
make sure you do that duty or make you do that duty. The primary power is going to force you to do that
duty and the secondary rule is conferring powers to the primary rules. Primary rules say that humans need
to abstain from certain acts even if they wish to or don't wish to- primary rule is always asking for a
sacrifice. It will be imposing a duty on you- that automatically means someone else has a right, power or
immunity- the duty can also be a disability- the moment there is a primary rule that is established and a
corresponding duty- there will be someone who has to make a sacrifice.
What exactly is power or right? Power to vary or influence a duty or obligation. There is no concrete
definition of how a right functions without a corresponding duty.
Secondary rule is parasitic on the primary rule- both of these have to exist at the same time- without this
relationship between the two types of rules- it will be a static society- it cannot function- the moment
there is a secondary rule a primary rule has to exist and vice versa- one cannot exist without the other.
09.09.2026
Internal attitude shows how a rule functions
External attitude shows how an attitude functions
Rules- behavioural pattern- it might result in a particular outcome- the entire discussion on ‘is obliged’ vs
‘was obligated’. Habit- mostly talking about how to predict a particular behaviour- a certain level of
uncertainty and indeterminacy is involved. Gunman example.
External attitude- is obliged to do something- facts and circumstances taken into consideration- weighing
the factors and then coming to a conclusion. Deterrence factor or fear factor- in gunman example.
Internal attitude- not dependent on fear- supposed to follow a particular set of rules voluntarily. If not
following- then indeterminacy and uncertainty- humans don't want something determinant on
unpredictability- they want a set social standard, behavior standard or any standard. Deviance from that
standard will result in social pressure which can be bifurcated into different parts. Internal attitude is
always based on ‘was obligated to’ rather than ‘is obliged’.
Law in present tense- no proper legal backing for it- making up the law while the facts are being
presented to you. Obligations- previously imposed- rule comes before the existence of new pacts- these
rules have been previously established to the presented facts.
Rule of recognition- hierarchy of legal instruments or authorities which Hart believes makes up the legal
system.
People are following it because they recognize it as fear or threat, not because it is a rule- external
attitude- ‘is obliged’. In internal perspective- the gunman example- there is an obligation- this was
established by a rule. Primary rule imposes a duty- duty and obligation can be used interchangeablyobligation is a type of duty- power is a type of right- Hoffeldian analysis. Internal attitude will lead to pre
established obligation- that will lead to a rule.
We will differentiate how Hart treats morality and positive law- once we find the rule
Fear factor is based on sanction in Austin’s work- social pressure is the corresponding unit for sanction in
case of Hart. Social pressure itself does not make anything positive or natural.
Social pressure is of 2 types- it means that there is a corresponding obligation or duty- based on the
seriousness of the consequenceMoral obligation or duty- standard behavior that is supposed to be there in a society- if you break thiswhat can be the repercussions→ this is where the seriousness factor comes into play- if you do
something immoral but isn't realised as illegal under the law- what are the repercussions- social stigma,
shame, guilt, remorse- none of them are legal terms- isn't a legally recognized element. Ex, Rule of
etiquette/fashion is not followed- may lead to shame or critique by other people.
Legal obligation or duty- it is going to be physical sanctions. In that case there has to be a corresponding
positive law- in that case there would be the physical sanctions. There can be fines, compensation,
community service etc- they are physical sanctions- correlative of legal obligation. It makes up a part of
the law- not the entirety of how the legal system is supposed to function. Till this point of legal
obligations- it will fall under primitive or rudimentary systems only. How do you convert it into a proper
legal system? The primitive system is made up of only primary rules- the moment secondary rules are
added- it becomes a contemporary complete legal system. Primitive systems lack the explanatory powers
that law requires. Why? With the existence of primary rules- if you don't have a way of implementation
of these rules by any officials- if officials don't have any power to enforce these rules- further, the reason
for the social pressure is to maintain the society- but how exactly do you put this social pressure into
force? How to implement this social pressure to maintain the social order? This is why secondary rules
are needed to come to a final outcome.
Sacrifice or renunciation- has to be done to follow the primary rules. In Austin’s work the primary focus
was on criminal law- can Hart go beyond criminal law? Removal of sovereign as an entity is required to
impose civil law.
Situation 1- officials insist on performance of an act or they will extract penalties. Criminal law
Situation 2- officials entrust private parties who may choose to insist on performance. Civil law
In the first case performance is the obligation or duty imposed by primary rule- the officials get their
recognition under the secondary rules- exacting of penalties is the social pressure- force or physical
sanction. In the second case- officials will entrust private parties- private parties may or may not insist on
performance- civil law is based on private rights- it is enforceable upon the wish of the plaintiff- Hart
introduces private rights and civil laws which was absent in Austin’s work which only had public rights
and criminal laws.
Primitive society- characteristicsCertain general rules of conduct that imposes restrictions- at the same time the presence of an internal
and external group.
Internal attitude preferred over external attitude. Hart recognizes the polarity and existence of more than
one opinion in the society- there can be polarity in terms of belief systems. However it creates a
problem- who is the person who is actually imposing these general rules- without the sovereign being
present there is no authority- if there is no authoritative body- the problem is that there is still a state of
anarchy- even if there are pockets of power. You can say that people are following a particular regime just
out of fear; however, only fear doesn't determine whether people will follow the law or not. Just fear cant
make you do something- you internal belief system makes you follow the law- gunman example. (only
followed due to fear)
Certain drawbacks in a primitive society- if there are no proper rules or law in absence of secondary
rules- they just create a standard without a proper way of implementation- leads to uncertainty and
differences every time the law is implemented. If there is no proper way that the rule comes into force
and stays in force- it will lead to a static society because there is no way to change the rules since the rules
are ever changing. Slow growth→ habit→ obligation→ decay→ no longer a rule→ formation of new
rule→growth (cyclic process)- it doesn't give you proper answers and doesn't give you immediacy- it will
take up time and lead to uncertainty. This is why Hart introduces the Rule of Change
Rule of Adjudication.
10.09.2026
Conversion from a Pre-Legal (Primitive) Society to a Legal Society- we need the Secondary Rules. Why?
Primary rules, as per Hart, do not make up proper law. They make up a standard, but they are not legally
enforceable.
Procedure to settle a doubt is absent. Leads to uncertainty. Leads to static rules- growth is going to be
very slow, it converts into habit only after it has been crystallized with time. Because of the lack of
procedure, one single individual/institution cannot change the law, all of the people in the society have to
decay the previous rule and accept the new rule (think of decriminalisation of homosexuality as an
example)
Inefficiency factor. There is no authority to decide a case.
All these drawbacks of a primitive society have been PATCHED by HartUncertainty can be easily resolved using the Rule of Recognition- Plays the biggest role when it comes to
secondary rule, required for the existence of the other 2. 2 different approaches - In a simple step, in a
complex systemIn a simple system, rules are generally converted from an unwritten to a written state- it is not crucial,
rules can be unwritten and do not need to be crystallized in writing. However, it HAS to be
acknowledged- recognised.
In a complex system, recognition is not going to be based on any tangible list. It will be based on the
nature of the primary rules itself. Ex- primary rules can be- legislations, customs or judicial decisions. The
Rule of Recognition changes as per the nature of the primary rule (they all come into existence through
different pathways).
In Rule of Recognition, a hierarchy will be followed- Authoritative text (top of hierarchy), legislations,
customary practices, general declarations towards a specific person, precedents.
How do we say that the Rule of Recognition is valid? Is it possible to say it is valid without pointing it to
something else? - ex. Who gives the authoritative text its validity? - you HAVE to point towards the
Supreme Criteria- the Presupposition (grund norm in Kelsen’s work)- RoR is legally unlimited.
The static nature can be resolved by using the Rule of Change- anyone in an official capacity can bring a
change in primary rules (however, unlike judicial activism in the modern day, the premise of positive law
was that they were just mouthpieces of the written law, so not capable of bringing change). 3 ways to do
itIntroduce New Primary Rule
Eliminate Old Primary Rule
Alter Old Primary Rule
Degree of Power that is grantedLimited/Unlimited
Through rigid/flexible procedure (ex. 2/3rd and simple majority for constitutional amendment)
Limited/Unlimited power to change (Basic Structure cannot be changed- limitation)
Rule of Change gets its validity from Rule of Recognition- the body administering the change requires
recognition.
The inefficiency can be resolved by using the Rule of Adjudication- empowering someone to determine
questions relating to primary rules. Contents of the RuleDetermination of who can adjudicate?- not always the judge, can be quasi judicial authorities
What is the procedure to be followed?- can be a trial, quasi judicial proceedings etc.
‘The judge is duty bound to adjudicate a case’- In this case, it is not just a power but it can also come in
the form of a duty.
Rule of Adjudication might lead to certain inconsistencies- naturalism and realism debate. It centralises
social pressure- it tries to be reflective of social pressure within its decisions (even though we are taking
the power away from the masses to decide, the decision of the authorities are also influenced by the
masses)
These 3 Rules make up the Secondary Rules- Primary Rules have to be decided using these 3
14.09.2026
HANS KELSON (Components)
1.
2.
3.
4.
5.
6.
Difference with Austin and hart
Different from natural and he is more scientific
Normative order, the system of norms
Subjective and objective meaning - morality vs positivist debate
basic norm, included under system of norms. referred to as Grund norm.
How revolution works
terminology used by kelson: pure theory of law, and nomo dynamics.
Pure Theory of Law – conceptualization of law according to Kelsen
He is trying to segregate law from other disciplines that the positive law people follows.
Kelsen wants the legal theory to be a separate discipline altogether and the same thing was sort of being
achieved by Kelsen and hart. austin’s idea of what is law – primary critique of hart on Austin, is that he is
always trying to include this permanent prediction forceability and predictive theory and fear. this leads to
inconsistency of law in accordance to hart. austin’s idea of making law different from all the theories of
law is very difficult in itself as well.
factors of fear and predictive theory and deterrence factors all are including the psychological factors.
whether fear gives another kind of theories.
Kelsen is not including the sociological, economic, psychological factors.
hart also tried to view law as a science. the moment they discuss it as prelegal or legal societies. hart said
his work is based on imperial data. and we cannot really do that. hart’s work is based on primitive
societies, and by that time the possibility of conducting an imperial testing is less likely. Kelsen differs in
this particular department.
law of thermodynamics, it falls under natural sciences, and it falls on natural laws and are unchanging
unless
certain aspects of scientific disciplines. and it is going to lead to your normative science. the difference
between austin and Kelsen and hart and Kelsen is clear
you always look for true and false things for natural science. no one ever looks into the validity and
invalidity in natural sciences. there are multiple different types of experiments
public policy is directly based on science.
sociological factors and legal fact
[Naysha]
In terms of natural law, we talk about the morality or validity of the content but in positive law you talk
about the validity or authority of the law.
Austin takes three things into consideration (command, sovereign and sanction). Kelson takes a different
approach.
1. Difference with Austin and Hart.
2. What is the type of science we are talking about and whether or not it is different from natural
science.
3. What do you understand by the term norms or by normative orders.
4. What do you understand by something which is the subjective and objective meaning.
5. Basic norm, what it is to function. Is it possible to change it?
6. Revolution
These are crux of how we will study Kelson. Kelson tries to justify everything with scientific approach.
Actual terminology used by Kelson. One is Pure Theory of Law and the second one is called Nomo
dynamics. These are the two works of Kelson.
Pure theory of law will be the more theoretical idea of what Kelson thinks law should be as.
First question is why and how Kelson and Austin are different.
Kelson wants law as a separate discipline all together. This was also sort of being achieved by Austin and
Hart but why are they still different.
Kelson wanted to separate everything from law. Not going to include political, sociological, etc factors.
He sees law purely as science. Now, Hart also sees law as science. Claimed his work is based on
empericity. Kelson differs in this aspect. When you talk about empericity, you try replicating natural
sciences and Kelson did not wanted to replicate natural science. Kelson says he will take a conceptual
approach, and it will always lead to normative science.
The independent factor- the law is not independent. Common for both natural and normative sciences.
Kelson does not go beyond legal methodology. His work has to be efficacious and valid; his work does
not work merely on validity.
When you see natural science, you see only at the true or false of the natural science. You do not take the
validity aspect. The moment you take the validity in consideration; you look at the preconceived norms.
Kelson tries to separate social sciences.
All the positive school thinkers - eg economics or criminology itself is a diff kind of social science,
criminology is not a sub-set of sociology; it a complete different discipline. What is a normative order
then? in case of imperisity - data from lived real life experience – you are trying to capture reality where as
in normative science or order you don’t confirm with reality - how do you conceptualise this science - for
a norm to be valid: norm A has to conform to norm B and the cycles goes on but it has to confirm to
Basic Norm, at last - pyramid data - we are trying to look into whether or not it confirm to basic norm or
not - it is usually said in basis of valid or invalid, while imperialism says it as true or false
What is the basic norms - any norm that cannot be derived from other norm, where the infinite
regression stops - as in case of Hart - Basic norms can give rise to a lot of multiple sub-norms and can be
further classified - every class of classification here makes the Normative Order - any imp conversion
process that needs to be taken into consideration - 1. subjective meaning 2. objective meaning.
Subjective meaning will always be given by actor (what the actor intends) but objective meaning (what the
legal system recognizes) will be given by a filter norm. If you want to go from what you think is the
meaning to what law things is the meaning, you need to pass a filter. This is the norm. Norm will either
create a law or the filter.
Norm itself is not the law but a law can be made from the norm - it authorise or validates the
corresponding law - the example of buying something from biju da, but when you apply it to the cocaine
then the legal object or the invitation of offer itself in invalid - so here the norm works as a filter - for
hart - primary rules are the norm - for Austin, command, sovereign and sanction is the norm - here it is
based on normal reason and factors, for common law, it is based on artificial reason.
How does this filter work in term of Hart. Everything will be working as a filter of validity. But the
moment you convert it to natural law, the filter of validity will be gone. You will check the morality factor.
15.09.2026
Norm- basic definition of norm is somewhat that ought to be or ought to happen. This creates a
confusion. We look at the ought factor in norm; this is what natural law talks about.
Another definition of norm is act that is commanded, permitted or authorized. We see in these three
cases it acts as a will for someone else. So, here is where we get the separation in case of all positive law
theorist. Separation between ought and is factor.
Whenever we talk about will, that is what makes up the is factor and the contents of the norm makes up
the ought factor.
What makes the norm valid is the will. If we put it into one sentence, ‘A’ WILLS that B OUGHT to
believe in a certain way. Over here, there is a ‘is’ factor and a ‘will’ factor. Here A is validating the norm.
A particular behaviour is supposed to correspond to a particular will. On one hand you will have the
subjective meaning and on the other hand we have the objective meaning. Over here we will have to filter
out the norm. The norm itself is just a set of behaviours which out to be followed. An authorizing
agency makes the set of behaviours legal. So, a norm has to be authorised by a human agency.
Subjective is by the actor, objective is by norm. Both under ought factor. Subjective meaning is what the
actor intends. Meaning itself is the content. ‘Is’ factor is getting its validity based on authority.
When we talk about is factor, we talk about whether a particular norm comes from this authority. The
objective and subjective meaning can be the ought factor or behaviour that is expected. They are the
subsects of norm, one validated and other not.
Norm validates the content not the authority. Norm can be a social norm as well, not necessarily legal.
Whenever we are talking about validity we need to keep some things in mind. What does validity mean?
What are the things to consider for validity to be considered success? Validity is basically going to be
signifying the existence of a legal law.
What we consider will? So whenever there has to be validity automatically there has to have a will.
Without an authority a norm cannot be validated. An existence of a will after validation not necessary.
Ex- after a new government comes, the previous schemes just because they exist does not necessarily
mean they shall be followed.
Now, validity here is the ought factor. What actually makes a validity exist for a prolonged period of time
is efficacy. Validity is always going to be based on a normative factor so it’s a ought factor.
Validity- why ‘ought’ obey it?
Efficacy asks the question that is it actually obeyed.
Only if a particular norm is efficacious, we can say its valid. We call this the minimum effectiveness test.
Achievability is one factor to be considered. Norms cannot be valid if they cannot be followed/achieved
physically. Without achievability, norm is not efficacious and without efficacy a norm cannot be
considered valid.
Achievability- norm cannot be followed since its against natural law (physical laws, something against
basic science because then they are automatically ineffective as they cannot be followed).
Efficacy is required to continue the validity of a particular norm.
16.09.2026
Something has invalid or rather has been not used for a prolonged period of time.
Basic norm- authority from which other authority can be derived.
Grund norm





Relevant appeal, Not based on context
Not based on morality
Ultimate rule
Legal Fiction
Change but real
Will be based on illegitimate
Is a basic norm a part of the legal system? Yes, but what position. Does not fall completely within legal
system but rather we can see that like a single point or a doorway. Its basically going to be an edge for
entry and exit.
When we talk about validity, space and time one aspect limitations will be there. Then a particular norm
can also be based/limited on material things (subject natter) and personal things (on which subject matter
it applies to).
No distinction between positive and negative regulations- Austion
Hart- makes a distinction
Kelson- does not need to make distinction, inherently in his system
Positive and negative wrt norm, what will happen? Some norms will be validated dome will be not.
Will, when there is a will, you are supposed to behave in a particular way which could be positive or
negative. Two things can happen then, you either follow(then efficacious) it or you don’t follow(there will
be a sanction) it. If most people are not following it, it becomes ineffective which makes it lose it invalid
even though it was validated by a human agency which had the authority to issue a will. Effectiveness is
through which validity continues.
What are functions of basic norm- it will confer power, same as to how secondary rules works in Hart.
But what kind of power- power to legislate.
Basic norm is what allows the constitution to be valid.
All other acts are going to be based on basic norm.
Anything created has to be created by basic norms.
For validity- it has to be based on basic norm and not fall in state of disuse.
In dynamic system there are norm creating powers. So, one norm gives the other to create norms.
Hierarchy- what will be in top will always be basic norm wrt validity, then comes statutes and customs
(both on same plane because customs are unwritten laws as per Austin and statutes are written laws). Also
custom has to be prescribed by basic norms. A custom can also become invalid based on disuse. Next
comes in hierarchy, delegated legislations(administrative). Finally, there will be individual norm (judiciary;
individual because it will only be applicable to individuals).
Kelson says any basic norm can be changed only through revolution.
Basic idea of how revolution works- first things to consider is illegitimate (not prescribed by old basic
norm). Second thing will be that violence is not required. Siezing of power by force but not violent force.
New order has to be effective, if not then it will be treason.
17.09.2026 – Ayush (take from someone)
21.09.2026
Are natural rights real?
This is the central objection to natural law, and it has real force. Rights vary across countries, and even
within one state a new sovereign can rewrite or abolish them at will. If rights differ by jurisdiction and
can be changed by whoever holds power, then what is guaranteed is only what a legal system actually
enforces, which is why positivists like Bentham dismissed natural rights as "nonsense upon stilts." The
natural-law reply is that this variation shows how rights are recognised, not whether they exist: just as a
society's failure to acknowledge a scientific truth does not make it false, a regime's denial of dignity does
not make dignity unreal. Natural rights are therefore best understood as a moral standard against which
positive law is measured and criticised, and not as a legal fact in themselves. Their reality lies in their
normative force.
They give us the vocabulary to call a law unjust, as Khanna J did in ADM Jabalpur and as Puttaswamy
later vindicated. But that force becomes effective only when a constitution converts it into enforceable
remedies, which is why India pairs the natural-rights idea with Articles 13, 32 and 226. In short, natural
rights are real as moral claims, but only as real in practice as the legal system that protects them.
International human rights law was not really a concept before world war. Why were these basic amenities
not present earlier – moral law duties were necessary on each and everyone. the concept of rights came
into picture when people started forgetting their moral duties. The concept of natural rights evolved from
theory of social rights.
Social Contract Theory – Locke – In natural law it’s the divine sustainment of the king to trade his
principles in righteous manner. It was never upon the citizens of the kingdom to determine what rights
do they deserve. But what if the king was a mad man. The law of social contract says that every one is
born with natural rights, and whenever they are born in a state they are given certain rights and they are
surrendered to the state and state regulates those rights.
Social Contract Theory – Hobbs – Nature doesn’t have rights, and humans’ crime into an agreement to
abide to a sovereign and that sovereign would give us rights which are basic in nature and reasons with us.
essentially the rights are in the hands of the king, or the sovereign and they would give us the rights.
Natural law says certain rights (life, liberty, dignity) belong to a person simply by being human, and that an
unjust law violating them is no true law. The weakness is that natural law has no enforcement machinery.
It is a moral claim, not a legal remedy. If a sovereign legislates against a natural right, natural law gives you
no court to go to and no writ to file.
This is the classic positivist critique (Austin, Bentham, Hart). Law is what the sovereign commands, and a
moral objection does not make a statute invalid.
India saw this play out in ADM Jabalpur v. Shivkant Shukla (1976). During the Emergency, the Court's
majority held that with Article 21 suspended, no one could approach the courts to challenge detention,
because Article 21 was the sole source of the right to life and liberty. Justice Khanna alone dissented,
saying life and liberty exist independently of the Constitution and cannot be taken away by a suspension
of enforcement.
Article 372 – Provisions before the enactment of the constitution, would still be continuing, either in
coherence with the constitution, or would go under the inlets. So does this mean that the rights that
existed before the constitution before the constitution and are incoherent would still exit or not?
Essentially is it the constitution that gives those rights or are u born with those rights?
Where does Rights come from? What does it actually means to have right? What happens when rights
conflict?
Bentham – rights, is the child of law; from real law comes real rights, but from imaginary, from law of
nature, comes imaginary rights. Natural rights is simple nonsense; natural and imprescriptible rights,
rhetorical nonsense, nonsense upon stilts.
All rights does not depend on everyone; it is more like it depends on the social statures where it is being
applied. Even if u do not have a right, what matters is a belief in the rights, you can protest for those
rights to be identified. What positivist say is correct cause if u don’t have laws then their recourse and
mechanism would also not be possible. Laws could be justified and unjustified, based on which group is
affected and dependent on either side of the rights. Rights can take several forms and ways until it realizes
in a law. Rights could be considered social guarantees, ideas, and political points until it becomes a law.
You need some kind of authoritative law to determine the laws that u think are natural to actually come
into practice. For laws to come into authoritative practice the rights have to be enacted.
"Law is" vs "law ought to be"
"Law is" describes law as a social fact: a rule counts as law because it was validly enacted by the sovereign
or recognised by the legal system's rule of recognition, whatever its moral merit (Austin, Bentham, Hart).
"Law ought to be" evaluates law against a standard of justice, morality or reason that exists independently
of what any legislature has enacted, which is the natural-law and critical-morality approach. Hart called
this the separation thesis: a law can be valid and still be unjust, so validity and morality are separate
questions.
Natural-law thinkers, and later Fuller and Radbruch, argue that extreme injustice undermines a rule's
claim to be law at all. In short, positivism tells us what the law is and natural law tells us what it should be,
and the gap between the two is exactly where reform, criticism and judicial creativity operate.
Prisoners' rights and the dilution of "right"
Prisoners' rights in India expanded step by step, mostly through Article 21. It began with the basic
protection of the body (freedom from torture and custodial violence, as in Sunil Batra and D.K. Basu),
moved to legal aid and speedy trial (Hussainara Khatoon), then to food, humane treatment and protection
from sexual abuse, and now extends to exercise, visitors, recreation and time out of the cell. The concern
is that this shows how a right can dilute as it multiplies. The earliest claims protected something morally
non-negotiable, namely bodily integrity and dignity, but when welfare and comfort claims are given the
same label, the word "right" stops marking a moral minimum and becomes a catch-all for anything
desirable.
Dworkin saw rights as "trumps" against the state, and that force weakens when everything is a trump. It
also shows the gap between "is" and "ought": these entitlements are law because courts read them into
Article 21, not because each one rests on a clear moral foundation, so the philosophy of natural rights
and the actual growth of legal rights no longer line up neatly. The counter-argument is that humane
conditions are part of dignity, so the expansion is principled rather than diluted. Your point is strongest as
a critique of rights inflation, where the distinction between core rights and reasonable policy goals gets lost.
what does it mean to have a rights? – rights derive from real law, essentially something that is enforceable.
this is according to Bentham. in existence of a right, the enforceability requires positivist action, the
correspondence action is necessary to be present there. this obligation backs a moral obligation. unless we
introduce the filter that introduce the right, we cant actually get enforceable actions out of that right.
working perspective of rights – Khurshid case
[Paper summary]
"In Search of Right Jurisprudence" (Salman Khurshid,
JILI Vol. 62, 2020)
Central thesis
The state must balance rights, not just between individual and individual, but between the
individual and the state/society. Constitutional rights are never absolute, and the risk lies in
how "balancing" and "proportionality" are used, especially in emergencies and national security
cases. The author argues the Supreme Court misread Dworkin in Anuradha Bhasin.
1. The theoretical fight: Dworkin vs the Court
Dworkin's rights thesis (citizen-side)



Rights are "trumps" against the state. A collective goal alone is not enough to override an
individual's right.
A right against the government is fundamental if it protects dignity or equal concern and
respect.
Courts must be "activist" in the sense of answering questions of political morality, since
rights clauses are moral concepts, not fixed rules.

Rights mean taking some risk. Dworkin's post-9/11 view was that society must accept a
marginal increase in risk (even of terrorism) to keep faith with its own humanity.
How the Court treated it (state-side)



In Anuradha Bhasin and the J&K 4G cases, the Court dismissed Dworkin as "all or
nothing" and rule-based, and preferred a principle-based approach that permits balancing
between individual and society.
The author says this is a misreading. Dworkin's model rests on the policy vs principle
distinction, and the "all or nothing" view is actually what he rejected in Hart's model.
Dworkin does not reject balancing. He is concerned with how courts do it.
The Court's approach follows Robert Alexy: rights are "principles" to be realised as far
as legally and factually possible, so conflicts are resolved by weighing, which leads to
proportionality. This is closer to a utilitarian "greatest good" approach.
2. Rights of the citizen
Natural-rights foundation (Puttaswamy, Chandrachud J)





ADM Jabalpur is formally overruled and Khanna J is vindicated.
Life and liberty are inalienable and "primordial" (Kesavananda Bharati). They are not
bounties of the State, and the Constitution does not create them.
The right to life pre-existed the Constitution and continued under Article 372. The
Constitution recognises the right but is not its sole repository.
A Constitution without a Bill of Rights would not leave people without a right to live or
a means to enforce it.
The author notes a contrast within the passage: one strand is narrow (no
encroachment without "authority of law"), the other broad (rights are pre-constitutional
and inalienable).
Where citizens' rights are under pressure





Dissent and protest: the author distinguishes those who advocate or use violence from
those who merely disagree, citing Ram Manohar Lohia, Kedar Nath Singh, Romesh Thapar.
The line between peaceful assembly and unlawful assembly is easily blurred by the police
"on a whim."
Prolonged incarceration of CAA-protest students under harsh laws is a concern. The
author calls for the courts to scrutinise a criminal justice system that allows fanciful
allegations.
Navtej Johar and the privacy judgments speak in elevated language, but there has been
little impact on policing.
Fear and honour are missing from the rights discussion. The public assumes rights
become redundant when national security is invoked.
3. Rights and powers of the sovereign (state)
Textual restrictions in the Constitution

Article 19(2)–(6): sovereignty and integrity, security of the state, public order, decency or
morality, contempt, defamation, incitement. Articles 25 and 26 are subject to public
order, morality and health.


Preventive detention has no US counterpart (Seervai).
Directive Principles (Part IV) represent the society or public interest and help measure
"reasonableness."
Judicial reasons for restraint


The executive knows best on public safety and national security.
Fundamental rights are not absolute, so restrictions are valid.
Tests the Court uses to police state power




Reasonableness: Chintaman Rao (restriction must not be arbitrary or excessive), V.G.
Row (case-by-case, considering the nature of the right, purpose, urgency of the evil,
disproportion, prevailing conditions).
Proportionality: Om Kumar (least restrictive choice; the legislature or executive has a
range of choices, but the court decides whether the right is infringed excessively),
Puttaswamy, Subhash Chandra Aggarwal, Modern Dental College (no absolute rights;
harmonious coexistence).
Lord Diplock's image: don't use a steam hammer to crack a nut.
Caution (Lucia Zedner): "balancing" is a politically dangerous metaphor. Interests are
rarely spelt out, priorities are rarely explicit, and it is treated as zero-sum.
4. Case studies
Case
Anuradha
Bhasin (s.144
CrPC, J&K
internet)
What happened
Author's point
Court accepted security as a The State never showed a link to terrorism. It
legitimate interest and held was really apprehension of reaction to the
4G restrictions narrowly
abrogation of Art. 370. The Lt. Governor later
tailored
endorsed restoring 4G.
The Court traced US doctrines (clear and
Ramlila Maidan Police used force on
present danger, balancing) but held the Schenck
("right to sleep") sleeping protesters
approach cannot be imported. Restrictions must
be enforced with least invasion.
Protest is treated as an exception to be tolerated,
Blocking a road for 100
not an intrinsic dimension of rights. Relegation
days was unacceptable, so
Shaheen Bagh
to zones makes protest unnoticeable. This is
protests should be in
"individual vs society" thinking, short of the
designated places
rights thesis.
5. Comparative US material (used to show rights are never truly absolute)



The Bill of Rights has no textual "reasonable restrictions," yet courts read in limits: clear
and present danger, then balancing (Frankfurter, Pound's social engineering).
Korematsu (Japanese internment) is the cautionary tale. It was upheld on military
necessity, and Jackson J warned the principle "lies about like a loaded weapon." It was
later repudiated by Roberts CJ, even as the travel ban was upheld.
Grutter: the compelling interest and narrow tailoring analysis is not very different from
Anuradha Bhasin.


Vietnam-era cases show a spectrum: NYT v. US (no prior restraint), O'Brien (draft-card
burning punished), Tinker (armbands protected), Watts, Brandenburg (only imminent
lawless action can be punished). Some Indian benches are moving toward this view.
Guantanamo: US courts resisted stripping rights from Al Qaeda detainees.
6. Author's critical points





Proportionality adds little to reasonableness. The Court's unease about its initial
articulation of rights leads it to add qualifiers: "rarest of rare" after upholding the death
penalty, "maximum freedom" after allowing internet limits, proportionality after
upholding personal laws.
Constitutional morality is a similar comfort concept and needs refinement, as it can
mean different things to different people.
Structural puzzle: Part III holds individual rights and Part IV holds social interests.
Read literally, the contest should be individual vs individual. But Art. 19(2) subjects rights
to public interest, decency and morality, and if rights are subject to morality and decency
there is "no fight left."
Indeterminacy: the hard question is often not what a right means, but whether the
justification for overriding it is sufficient. That depends on judgment, so outcomes are
uncertain.
Ideological difference between Chandrachud J (natural rights, Dworkin-friendly) and
Ramana J (balancing) shows the Court itself is split.
7. Conclusion
Respect for law must come from both sides of the barricades. Courts must uphold the principles
they call sacrosanct, since accountability after the fact is "too little too late." Force cannot
substitute for faith in democratic resilience.
Exam-ready takeaway
Khurshid argues that Indian courts, by embracing proportionality and balancing over Dworkin's
"rights as trumps," risk tilting the individual-versus-state contest towards the sovereign, even as
Puttaswamy declares rights pre-constitutional and inalienable. The gap between that rhetoric and
results like Anuradha Bhasin and Shaheen Bagh is the paper's core critique.
This connects to your earlier question. The Puttaswamy passage quoted here is exactly where
Chandrachud J says the right to life "continued in force under Article 372."
22.09.2026
Ownership and possession: Refer to ayush’s notes that he sent us over mail.
Hofield Jural Relations
He uses Rights as genus, but his first right is also a species. it’s a difference of capital and small r.
don’t get confused between the same.
What is the meaning of right –
1. right to claim something. example: right to claim money in return of a work. this
right is used against someone else.
2. privilege, right to enjoy something. claim is enjoyed against someone else,
whereas eight can be exercised on its own as well. example: to just walk around.
no one else has to be involved in the same
3. right to affect a legal transaction, it’s called power. example: one can accept or
reject an offer; one can make a legal relationship on the basis of the acceptance
or rejection.
4. immunity is a right that you shall not be affected by any other claim
right is usually exercised based on obligation that is created on a particular person.
we are going to look at Hoffeld’s cube:
the formal rights along with their co-relatives (one thing is on yourself and the other is on the
other person):
right – duty | immunity – disability | privilege – no right | power – liability
first plane – duty immunity, privilege, and liability.
second plane – power, no right, right and disability.
whenever u have a right someone else will have a duty to assert that right. if someone has a right
to ask for money then u have a duty to give it.
if u you have a privilege to do something then no other party has a right to stop you from doing
it.
Jural Opposites: diagonals of the cube:
right – no right | privilege – duty | Power – disability | Immunity – Liability
you cant have both of them together at the same time, even though you might not have both of
them at all. this is because the jural opposites don’t exist together.
its like you can’t have rights and no-rights at the same time. you can’t have a privilege to do
something and don’t have rights to do it as well. you can’t have power to do something and be
disabled at the same time.
Hopfield analysis is not based on private rights, but not really based on public rights.
23.09.2029 [morning]
to whom are rights given to?
Natural rights, conferred equally, would have meant that slaves and women would have also had
rights with them. Its like law has a right to recognise people, and only if it recognises people u
would have rights and duties.
Salmon – if u have interest that could be hampered by some other person, then you should get
legal right, and if you have power that could hamper someone else’s interest then you should get
legal duty. and if u have both then you should get a legal personality.
If are a principle, and ai acts behalf on your, and you are the legal personality, the it is your agent.
if ai wont have legal personality on its own, then the principle couldn’t be held liable as well.
Here if one is not able to establish a relationship between the legal personal who is a principle
and ai acting as an agent, then the principle can’t be held liable for anything done by their agent
on their command or behalf.
Basis
Natural Person
Juristic / Legal / Artificial Person
Who/What
Any human being whose rights
and interests are affected by law.
Source of
recognition
A human being is inherently
recognised as a person by law,
personhood is natural/by birth.
Exists independently of law, a
living human being, whether or
not the law recognises it.
Remains the general subject of
rights and duties. the ambit is
wide, covering the full range of
rights and duties a human can
hold.
Not confined to any one statute
or provision, holds rights and
duties generally, as a human
subject of law.
Existence
Scope/Ambit of
rights & duties
Extent of rights
conferred
An entity (not a human being) whose
rights and interests are recognised and
affected by law for a specific purpose.
The law gives it an
identity/personhood, personhood is
conferred, not inherent.
Exists only because of the operation of
law; it is a person created by law (e.g.,
a company, corporation, idol, trust).
Attributable only for the
purpose/context for which the law
creates it, its personhood is limited to
that specific ambit.
Has only those exact rights and duties
that the particular
provision/instrument creating it
confers, nothing beyond that.
Fiction Theory [section 41 (2) of the copyright act]
fiction theory - The Fiction Theory of Legal Personality in jurisprudence states that non-human
entities like corporations and associations do not have a real or natural existence, and their status
as "persons" is an artificial creation of the law
ex, soloman vs soloman
Concession Theory [Sec 2(11)(ii) Companies Act]
The concession theory in jurisprudence asserts that a corporate or juristic person does not exist
by natural right, but only as a creation or "concession" granted by the state. You have been
granted legal personality in this case.
ex,
Purpose Theory [Sec 9 of the Income Tax Act]
Taxability of income is determined not by where the service was rendered, but by the purpose
for which it was utilised and if utilised for earning income from a source in India, it is deemed to
accrue/arise in India, regardless of where the service was actually performed.
Ex, Hindu idol was considered as a juristic person for income tax. [Jogendra Nath Naskar v.
Commissioner of Income Tax]
Bracket and symbolist theory
Corporation in itself is a convenient legal symbol to form complex relationship between human
beings. It comprises of multiple smaller persons and in recognition of those smaller people form
a collective identity and this collective identity is a corporation.
Realist theory
A corporation is not law's imaginary fiction the law doesn't create it, it only recognises it, as
history shows humans naturally forming collective groups (tribes, associations, etc.) into real
social organisations with their own real will, capable of affecting rights, just like natural persons.
23.09.2026 [afternoon]
law vs morality: hart vs Devlin (enforcement of society’s morality at large through the state that
we are concerned in) | hart vs fuller (whether immoral laws should be removed, positivist and
natural law)
immoral acts that are legal – homosexuality, adultery, drinking, dishonestly, marital rape – can
these be made illegal through law
moral acts that’s are illegal – over speeding, Jaywalking, Piracy, not wearing a helmet
Champion of individual rights and that it should be prioritise over all the other kind of rights –
mill
This was because society can imposes the societal standard on individuals and they would not
like it or want to do that. these are social sanctions, and one of the social sanctions could be
socially archaicised.
It is not just the govt that oppresses u it could be the society as well that oppresses you. Like the
social norm of the place can have rules and forced individuals to confirm to the standards they
think is correct.
Morality should not become the law but if an immoral thing harms the general public then it
should be made into the law.
24.09.2026
Grudge informer case
Presiding judge- justice gustav- hard-core positivist
Validity of law shouldn't depend on the content of the law- the way in which obedience to law
made the horrors in nazi Germany- it made him question his beliefs. The case of the woman
squealer case came to him.
Husband filled case against wife who had reported him during Hitler's era for insulting Hitler. H
said W had deprived him of his freedom- W was only aiding to the efficacy of the grundnormshe was just following the law at that time.
Nazi statute contravened the human conscience. It shocked the conscience and sense of justice.
If you are abiding by the laws which are so terrible, then you are an abettor of the atrocities and
should be punished.
This case happened in 1950. Hart in 1958- positivism and the separation of law and order. Fuller
wrote a reply to this. Hart later in his book dedicated an entire chapter in his book as a rebuttal
to Fuller.
Hart rejected the notion that due to certain circumstances- nazi law should be deemed invalid.
He said that law is law- circumstances shouldn't be considered. Hart says he's not a proponent of
evil law- he's saying that if law fails to meet certain external criteria like moralities - law is a self
contained thing, it shouldn't be contaminated by the external factors.
Hart says that your conscience is a moral question. Morality doesn't hamper the legality of the
order. There can be many who don't agree to others. If you try to force law upon others- what's
stopping them from calling that a despotic law- what's evil to one person may be correct to
another. Hart says that morality should never be involved in law. Don't meddle exisiting law with
morality.
There can be many people who might not have fidelity towards law- fuller said at first that all
people should have a fidelity towards law. the legal system should be designed in a way that
would make people have a fidelity towards law- Fuller amends his statement later.
Inner morality of law- fuller said- he didn't define it. Coherence, logic, order- these 3 criteria
make the legal system rational- these are the essential requirements of any system. In nazi
Germany none of these criteria were fulfilled. There was a retroactive act which legitimised a
purge of 70+ people- this act's enactment demonstrated the general debasement of the lawthere was no inner morality of law in this system. The system which lacks the very
characteristics- that system is sine qua non not a legal system.
Even if law is derived from all the legitimate ways- as HLA Hart says- if it doesn't have inner
morality - the law isn't a legitimate legal system.
Hart says in chp 9- if people are giving sufficient cooperation in domination of a group of
people- as long as people cooperate- there will be people who will follow it and enforce it.
Something being legally valid doesn't mean that people have to follow it if they think that it's not
valid. A law is law because it is enacted in a certain way- it is law. He said that if you think the
law is despotic you don't need to follow it you can take the sanction- if enough people take the
sanction then the law would stop working- it falls down if people don't follow it according to
Hart.
Hart is critiquing fullers point that "just because a law is so abhorrent it can't be considered law"just because something is legal doesn't mean one must obey it. It can't demand something which
is illogical.
He differentiates between rules of law in equitas- saying that nothing bad can ever become law is
wrong because evil people will make evil laws. Hart says that the correct way of dealing with nazi
Germany cases was to make a retroactive law and deal with the cases in accordance with that
law. That would've been better than meddling morality with law.
Fullers example- Dumb king Rex- he wants to reform the country- first step is to repeal all laws
and replace them with new code- he couldn't come up with general principles necessary to cover
specific problems- he couldn't do it- he said instead that all disputes will be settled by me in the
future- he heard many cases and put different principles in different cases. No coherence or clear
pattern to his judgments. First he abandoned making general principles and laws, he failed- then
he tried adjudicating the cases himself- he failed again. Then he studies how to make general
laws- then he wrote series of general laws and compiled them in a code - which became the new
law to settle the disputes- but he didn't publish the code- it was with himself only. People
protested- he dropped this as well. Next he decided that all cases that happened previous year,
looking at everything in hindsight- he would give the judgment of the case later. After seeing all
the effects of the case, the case, socio political scenario, reaction of the people- keeping
everything in hindsight he would decide later. People protested again. Then people said what
they wanted- they wanted laws which explain in advance how to act- according to which
decisions would be made in future. He wrote a code but it was so obscure that neither layman
not lawyer could understand it. He hired experts and tell them to translate the law in a simpler
language. The punishments should be harsh so that people are scared of committing crimes.
After experts deciphered the code and presented it to everyone. One provision contradicts
another provision- numerous contraditions in code - people said that contraditions should be
removed from the code. Experts made the punishment extra harsh- law was unnecessary harsh
for petty offences. Lastly, Rex wrote another code- it was clear, concise, precise, it was
distributed to everyone for free, by the time the code came- the time had changed- code required
amendments everyday- law became saturated- public discontent became less- he gave many
judgments- some jurists compared his judgments- they said that there was no link between the
decisions given by rex and the provisions of the code. He wasn't using his code to pass the
judgments- judgments were different- law was different.
Rex died of heart attack just as people were about to revolt and dethrone him.
The problems with Rex s laws- it was not published or given to the public, the law was
unintelligible, the laws were contradictory, the laws were not consistent and needed amendment
regularly, disconnect between law and the way it was applied by the judiciary.
First, laws need to be general not ad hoc- rex couldn't make general laws which covered every
specific circumstances but he couldn't. Second laws need to be published. Third, laws need to be
prospective and not retroactive. Fourth, laws need to be intelligible, fifth- they should be
consistent, sixth- they be such that people are able to complying with it. Seventh, law should be
able to endure the changes and paucity of time- it should survive the test of time. Eighth, law
should actually be applied in the administration of justice. These eight criterias make up the inner
morality of law. He critiqued law with this- a legal system could be called valid only if it followed
these 8 criteria.
If a law which requires a left handed child to be shot- then it would be fulfilling all 8 criteria of
Fuller- would that make it a good law? Hart calls them a criteria for good legal craftsmanship- he
says that legality is not equal to equal justice- what fuller is explaining isn't the quality of Good
law, rather quality of Good legal craftsmanship. He says that if all these things exist in an
abhorrent law- then it would be valid law.
28.09.2026
CARL SCHMITT
1. Superiority of constitution – satisfies Grund norm
2. Procedural legitimacy – the entire legal order
3. Hierarchy – Stufenbaulehre / Hierarchy of norms
4. judicial review
5. depolarisation of law – pure theory of law, none of the political or sociological or
any other kind of work gets affected by this.
what are carl Schmith’s critique of kelson’s work, i.e., literal constitution. the above stated 5
points are under kelson and are critiqued by Carl Schmith.
monoismdualism-