Second-year Law Notes & Flashcards

1. Introduction to Positivism

Legal Positivism is the school of jurisprudence that argues law is a "social fact"—it is something created by human beings, rather than being derived from divine revelation or morality (Natural Law). The core tenet is the Separation Thesis: the law as it is distinct from the law as it ought to be.

2. Analytical Positivism: Bentham and Austin

Jeremy Bentham: The Censor and the Expositor

Bentham, the father of modern positivism, distinguished between Expository Jurisprudence (what the law is) and Censorial Jurisprudence (what the law should be).

• Utility: He believed laws should be judged by their ability to provide the "greatest happiness for the greatest number."
• Sovereignty: He viewed law as an assemblage of signs declared by a sovereign to govern conduct.

John Austin: Command Theory

Austin simplified Bentham’s ideas into the Command Theory of Law. For Austin, law consists of three elements:

• Command: A wish expressed by a superior.
• Sovereign: A person or body who receives habitual obedience and obeys no one else.
• Sanction: An evil or penalty attached to the command if it is disobeyed.

Example: A speed limit sign is a command from the Sovereign (The State). If you exceed it, the Sanction is a fine.

3. Kelsen’s Pure Theory of Law

Hans Kelsen sought to create a "science of law" stripped of ethics, sociology, and politics.

• The Norm: Law is a system of "ought" propositions (norms). If X happens, an official ought to apply a sanction Y.
• The Grundnorm: All legal norms derive their validity from a hierarchy, at the top of which sits the Grundnorm (Basic Norm).

Example: A policeman’s order is valid because of a Statute; the Statute is valid because of the Constitution; the Constitution is valid because of the Grundnorm (the historical first constitution).

4. H.L.A. Hart’s Concept of Law

Hart revolutionized positivism by moving away from "commands" to a system of Rules. He argued Austin’s theory was like a "gunman situation writ large."

Primary and Secondary Rules

• Primary Rules: Rules that impose duties (e.g., "Don't steal").
• Secondary Rules: Rules about rules. They allow for the creation, extinction, and adjudication of primary rules.
• Rule of Recognition: How we identify what a valid law is.
• Rule of Change: How laws are amended.
• Rule of Adjudication: How disputes are settled.

Feature	Austin	Hart
Foundation	Habitual obedience to a Sovereign	Acceptance of a Rule of Recognition
Motivation	Fear of Sanction	Internal point of view (acceptance of the rule)
Nature	Command	System of Rules

5. Dworkin’s Criticism

Ronald Dworkin attacked Hart’s positivism by arguing that law is not just a "pedigree" of rules, but also includes Principles.

Principles vs. Rules: Rules apply in an "all-or-nothing" fashion (e.g., a speed limit).9 Principles (e.g., "no man shall profit from his own wrong") have "weight" and must be balanced by judges.

The Chain Novel: Dworkin views judges like authors writing a chapter in a continuous novel, ensuring "integrity" with what came before.

6. The Great Debates

Hart-Fuller Controversy (Law and Morality)

Triggered by the "Grudge Informer" cases in Nazi Germany.

• Hart: Even an immoral law is still law. To deny this is to confuse law with morality.
• Fuller: Law must have an "inner morality" (The Eight Desiderata, e.g., laws must be public, non-retroactive, and clear). A system that ignores these is not a legal system at all.

Hart-Devlin Debate (Law and Private Morality)

• Lord Devlin: Law should enforce shared morality to prevent the "disintegration" of society.
• Hart: Law should only intervene to prevent harm to others (The Harm Principle). Private "immoral" acts between consenting adults are not the law's business.

7. Distributive Justice and the State

John Rawls: Justice as Fairness

Rawls proposed two principles of justice derived from the Original Position behind a Veil of Ignorance (where you don't know your status in society).

• Liberty Principle: Equal basic liberties for all.
• Difference Principle: Inequalities are only permitted if they benefit the least advantaged members of society.

Robert Nozick: The Minimal State

In Anarchy, State, and Utopia, Nozick countered Rawls with Entitlement Theory.

• If you acquired your wealth justly, the state has no right to take it for redistribution.
• The Minimal State: The only justified state is one limited to protection against force, theft, and fraud. Anything more (like welfare) violates individual rights.

8. Modernism and Post-Modernism in Law

• Modernism: Believes in objective truth, reason, and that the law can be a rational, coherent system to improve society.
• Post-Modernism: Skeptical of "Grand Narratives." It argues that law is a tool of power, language is unstable, and "truth" is socially constructed. It seeks to "deconstruct" legal texts to reveal hidden biases (gender, race, class).

9. Conclusion

Jurisprudence has shifted from the "Sovereign’s Command" (Austin) to "Systems of Rules" (Hart) and eventually to "Interpretive Principles" (Dworkin). While Modernists seek to perfect the state through distributive justice (Rawls), Post-Modernists remind us to question the underlying power structures of any legal claim. Understanding these theories is essential for any jurist, as they define not just how we obey the law, but why we believe the law is legitimate in the first place.

Copyright © 2025 Manupatra. All Rights Reserved.