Law – Conceptual Analysis

Law as a Major Concept – Importance of the Analysis

Law and related concepts – Ethics – Morality and Law

Three Main Categories

Law in terms of social order;

Law in terms of elements of state;

Law in terms of justice;

Law in terms of social order

Law as a social norm Western legal tradition – Aristotle – The function of law

is to maintain order Ehrlich – Law is an ordering Law is living in the society in the form of usages, social

practices and rules of conduct of social groups Savigny – Customs are living law and the real law Demerit: Failed to distinguish social norm from legal

norm

Law in terms of elements of state

Major category – Law as an Institutional Norm Sub-classification:1. State system level – Law is the command of the

Sovereign;2. Court based – Law involves the enforcement of norms

by courts. Analytical Positivism & Realism Difference of opinion about International Law

Law in terms of justice

Law is “just” and law claims to be just

Law is imbued with right and justice

Ideology belongs to the Natural Law Thought

Law should always carry the justice element in contrast to coercive element

Law – Meaning and DefinitionAncient period:

Romans: Justinian: “the standard of what is just and unjust”

Cicero: “law is the highest reason implanted in nature”

Hindu Thought: Dharma and Adharma – Law is a means to achieve justice

Positivistic Definition

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

Criticism-

Salmond: “Body of principles recognised and applied by

the state in the administration of justice”Comparison of Salmond and Austin

Sociological Definition Duguit: Law is mixed with social fact – Social solidarity is

the end of law – The rules can be called as law only if it meets this end – The validity of law is based on general will of the people – The sovereign is not above the law

Jhering: “Law is the form of the guarantee of the conditions of life of society, assured by state’s power of constraint”

Rosco Pound: “law is a social institution to satisfy social wants”

Historical Definition

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

Realistic Definition

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

Social Legislation Dr. R.N. Saxena: “any act passed by the legislature or a

decree issued by the government for the removal of certain social evils or for the improvement of social conditions or with the aim of bringing about social reform.”

Fairchild, Dictionary of Sociology: “Social legislation means laws designed to improve and protect the economic and social position of those groups in society which because of age, sex, race, physical or mental defect or lack of economic power cannot achieve health and decent living standards for themselves.”

Purpose of Social Legislation

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

Purpose under the Constitution Removal of discrimination on the grounds of sex,

religion, caste, class etc. and promotion of equalityto all.

Safeguard the rights of the weaker section such aswomen, children, elderly, widows, destitute andthe backward classes.

Eradication of traditional malpractices and socialevils such as untouchability, dowry, child marriage,female infanticide etc.

Provision of social security.

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

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

Law for social order

Law is an instrument of constraint to keep people from evil or damaging behavior;

Rules of law provide citizens a framework within which they can organize their relations with one another;

It gives peaceful and profitable coexistence.

Law as social control

Legal order compared with order of language – Lon L. Fuller (Law as an Instrument of Social Control)

Supremacy of Law

Rule of Law Concept - rule, supremacy, or predominance of law

Law is the King – Albert Venn Dicey – “Introduction to the Study of the

Law of the Constitution” 1915 Rule of Law in England: supremacy or the rule of law is a

characteristic of the English constitution

THREE MEANINGS OF RULE OF LAW

Absence of arbitrary power on part of the government.

Every man subject to ordinary law administered by ordinary tribunals.

Predominance of the legal spirit

Absence of arbitrary power on part of the government

No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary Courts of the land.

Rule of law is in contrast with authority of wide, arbitrary, or discretionary powers

Wherever there is discretion there is room for arbitrariness

Every man subject to ordinary law administered by ordinary tribunals

IDEA OF LEGAL EQUALITY Every man, whatever be his rank or condition, is subject

to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.From the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.

Predominance of the legal spirit

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

LAW AND MORALITY

INTRODUCTION

Different views – The historical view Law & morality have a common origin but diverge in

their development Early stage – It was intertwined and difficult to

differentiate

Oxford Dictionary defines moral as “concerned with character or disposition, or with the distinction between right and wrong”-

This shall be decided on the basis of the actions of the individual – Moral if he acts in accordance with what he believes to be right- immoral according to his wrongful motive.

The test is right or wrong – This sense of morality means the “obligation to do what the conscience of the individual person tells him is right”

Motive element compared: internal element distinguishes it from law.

What is the force factor in morality? The individuals are subjecting their mind to a form of

objective reasonableness of their actions. However, reason alone cannot be considered as a sole

element of moral law since reason is not a motive.

Where we can find out the “objective moral law”

The origin is in the divine commands like 10 Commandments or the implied commands which can be discovered through reason.

Instinctive feelings also guide objective moral law if it is uniform in nature.

Reason and moral law – Reason means the logical deductions from a basic premise. The sanctity of the moral law, therefore, lies on the nature of the premise.

Stages of Development Pre-legal stage: Undifferentiated in between ethics,

customs, morality, religion & law. Strict law stage: Codified or crystallized custom, which

in time was exceeded by morality, does not possess sufficient power of growth to keep abreast.

Infusion of morality into law: The law was reshaped by morals or the stage of equity and natural law.

Stage of conscious law making: The maturity of law – The morals and morality are for the law maker and that law alone is for the judge.

Philosophical View – Translation of moral precepts into legal precepts

Legal precepts are only declaratory of moral precepts. The rule of decision in a court cannot be a legal precept

unless it is a moral precept – The legal precepts should not run counter to moral precepts

The moral precepts are legally obligatoryMoral Principles + Equity + Natural Law = Legal

PrinciplesIn morals, the deductions are based on motives of

conduct while in law it is based on outward results of conduct

Analytical View Contended that law and morals were different and

unrelatedConfusion about intertwined nature of law and morality is only an assumption like theoretically explained separation of power doctrine. In practice, overlapping is there.

If there is absolute separation of powers then law for courts, morals and morality for legislators.

Sociological View

Functional View: Law in the lawyers sense and morality are forms of social controlRoscoe Pound: The relationship between law and morality through three angles:1. Morals as basis of law:

No distinction between morals and law. All have common origin and sanction was in the nature of supernatural fear-Later state picked those rules and enforced in the name of law.

2. Morals as test of law: (Ancient view)Law must conform to morals. The law which is not in conformity with morals become invalid.(Modern view) Law is considered to be valid and binding even if it is not in conformity with morals.

Paton: “If the law lags behind popular standard, it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement”

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

Difference between Law & Morals

The object of law is submission of individual to the will of organized society; tendency of morality is to subject him to the dictates of his conscience;

Subject-matter different: Legal rules and moral rules for different purposes;

Morals or ethics is a study of the supreme good and law for society;

Law is concerned with the social relationship of men rather than the individual excellence of their character;

Morals and ethics considers only the motive and law considers the external conduct;

Morality furnishes the criterion for the proper evaluation of our interests; law marks out the limits within which they ought to be confined;

Law is concerned only if an individual is living in a community with others; morals give a guide to lead him even if he were alone;

Law governs the will through external coercion; morals seek a free self-determination towards the good;

Difference in sanctions; Difference in imposing of sanctions.

HLA Hart & Lon L Fuller DebateProblem of legal validity and a corresponding obligation to obey the law – Fuller’s words “ideal of fidelity to law”

HLA HART’S VIEWA DEBATE OF LEGAL VALIDITY

A certain law exists, does not depend on any moral evaluation of it. Morality is external to law.

In positivism legal validity means not justification but that it is recognized as enforceable by tests set down in an efficacious legal system. Legal validity is a social fact.

A law actually “exists” in a legal system in the sense that it can fulfill its function of social regulation.

HART’S LEGAL VALIDITY THEORYHart’s Legal System

The moral rules has no place in this system. Moral criteria is not a necessary condition for the validity of positive law.

Primary Rules of Obligation (The rules create obligation through social pressure)

Secondary Rules Conferring Powers (Rule of recognition)

Hart’s legal system is like a closed circle which deals only the internal perspective and not external point of view.

Hart understands the validity of a legal norm in the sense of systemic validity, meaning that it is part of the legal system and not necessarily linked to moral evaluations of it.

There is a separation between “law as it is” (meaning: legally/systemically valid) and “law as it ought to be” (our evaluations of this positive law).

The rule of recognition Is a social fact, it is an actual social practice, there is nothing essential moral about it.

Two minimum conditions necessary and sufficient for the existence of a legal system

1. Rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed;

2. Rules of recognition specifying the criteria of legal validity.

Fuller & Legal Validity Law to be legally valid, must conform to the “internal

morality of law”. Fuller connected Hart’s “fundamental accepted rules

specifying the essential law making procedures” with moral rules since they are accepted as something good.

Due to the essential purpose of a legal system as contributing to good order, its acceptance is a genuinely moral act; therefore the rule of recognition as the ultimate rule of the legal system belongs not just to the legal, but also to the moral sphere.

The purpose of law is that of “subjecting human conduct to the guidance and control of general rules”

Law itself contains an internal morality, certain criteria which have to be met in order for a legal system to exist.

For Fuller there is an internal morality of law.

Fullers Division of Morality Sub-divided into two:

1. Morality of Aspiration & Morality of Duty (Comparable with Ethics & Morality.2. Internal Morality & External Morality.

The internal morality of law concerns the procedure of making law, the technique used by the law maker in deciding which rule of substantive law should be applied to the particular case. The external morality of law refers to the content of the substantive rules of law which are actually applied by the arbiter in arriving at his decision.

Eight Principles to Test The Propriety of Law– These Principles are “Internal Morality of Law”

1. Law should be Generally Applied;2. Publicly Promulgated;3. Sufficiently Prospective;4. Clear & Intelligible;5. Free from Contradictions;6. Sufficiently Constant through time;7. Not require the Impossible;8. Administered in a way sufficiently

Congruent.

Law & Public Opinion

Role of Public Opinion in Law Making – Introduction

The terms “Public” and “Opinion”Public means “any loose association of individuals held

together by common interests”The interest is common to all the members of the

community or nation.Public Opinion means a belief or conviction or views of

individuals on matters of issues of widespread or public interest and concern.

The opinion of a member of a public cannot be a public opinion-

Public opinion is not the opinion of the public. Ideal Meaning: Public opinion is the “aggregate of the

opinions held by individual members of the public”. Dicey: Public Opinion with reference to

Legislation: “the belief or conviction prevalent in a given society that particular laws are beneficial, and therefore, ought to be maintained, or that they are harmful and therefore ought to be modified or repealed”.

The role of political parties and their opinion representing the public-

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

Approach - Currents Three currents –

1. Main current;2. Counter currents; and 3. Cross currents.

Main current – The category having maximum support at a given time;Counter – The category opposed to the main;Cross – Neither support or oppose but have a different interest of certain pressure groups.

Individualism (Main current) in England – Utilitarianism of Jeremy Bentham and its influence in law making in England and India –

Socialism (counter current) – Based on collective interest or state interest – Marx, Lenin

Mixed Economy (Cross current) - Keynes

Public Opinion and Law Making in India

19th Century – 1st Half – 2nd Half

20th Century – Ist Half – 2nd Half

Currents of opinion in India