Showing posts with label Jurisprudence. Show all posts
Showing posts with label Jurisprudence. Show all posts


A society cannot be imagined without law but at the same time, it is very difficult to provide a proper definition of Law. Explaining law can be a much easier task than giving a proper definition of law. Since the time when human civilization came into existence, scholars have tried to answer the question “What is law?” There are various divergent views regarding what the actual law is. 
Even if we compile a bare definition of law from different jurists and intellectual thousands of pages will actually fall short of it. So, it’s better to keep those divergent definitions under three different heads. These are:
A) Idealistic Definitions
B) Positivistic Definitions
C) Sociological Definitions

Now let’s discuss each one of them in detail.

Idealist Definition

In this head most of the old definitions which were given by Romans and ancient Jurists fall. Alpine defined law as “the art of science of what is equitable and good.” In the definitions given by Roman Jurists “JUSTICE” seems to be most important element of all. But this doesn’t mean that they were confused with ‘Law’ and ‘Justice’. They were well aware of both these terms. Coming Indian view, Law is a command given by God. Even the political superior is bound from it. Salmond too defined law in his book Jurisprudence, “the body of principles recognized and applied by the state in the administration of justice.” Although he has been criticized too, the main part of his criticism is that he confuses ‘Justice’ with ‘law’.

Positivistic Definition

 Although the definitions in the Positivistic School are very old but clear cut view can be taken from the one given by John Austin, “Law is the aggregate of a rule set by men as politically superior, or sovereign, to men as politically subject.” In simple words, we can say that law is a command of sovereign that is backed by sanction. Austin has been criticized in various areas that he completely ignored the social aspect of law. We should also not forget that the definition given by Austin is very precise, clear, and simple and he defined law as what he found in English law. Many jurists after Austin gave a positivistic definition of law, Kelsen seems to be the important one. According to him, the law is “Depsychologized Command”. His definition is somewhat different from Austin’s one. In his definition the word ‘Sovereign’ is nowhere in the picture.

Sociological Definition

Under this head of the definition, Jurists have tried to define law in relation to society. Just like Duguit defined law essentially and exclusively as a social fact. According to him, law is one of the essentials in community life. Whereas according to Ihering law is a “form of the guarantee of the conditions of life of society, assured by State’s power of Constraint”. Another sociological Jurist, Pound defines law as “social institution to satisfy social wants”. His approach is quite important in comparison to the others.

After going through the entire set of definitions one can easily conclude that most of the definitions which are provided by these jurists are given based on their own experience of their legal system. They only provide a partial view of law and these partial views do not have universal applicability.

Now let’s have a brief overview of what functions are performed by law.

Functions of Law

Roscoe Pound, pioneer of Social Engineering provided us with four major functions of law. These are:

· Maintenance of law and order: Can you imagine a modern society where there are no legal norms and even then the law and order is not damaged? Obviously No... The basic function of law is to maintain law and order in a society.

· Maintain Status quo in Society: According to Merriam Webster Dictionary, this Latin Phrase “Status Quo” means “The existing state of affairs”. Another function of law is to maintain the existing state of affairs as it provides society with sense of stability.

· Ensuring maximum freedom to Individuals: Freedom is something for which thousands have martyred their life. Important function of any law is to provide freedom to every individuals and constraint it with reasonable restrictions.

· Satisfy the basic needs of the people: There are certain needs which are very common for the very existence of Society these are called basic needs i.e. food, water, shelter, clothing, education, and many more. Generally, the supreme law of the Nation makes it compulsory for the Government to provide these basic needs to their Citizens. This is how law acts as a medium to satisfy the basic needs of the People.

Classification of Law

Governing rules i.e. Laws are mainly classified under two different heads and these heads are further divided into many parts. Let’s have a brief overview of these classifications.

International Law: Jurists like Austin were of the view that there is nothing called International law. International Law lacks many elements required of becoming law. At the same time, there were many who regarded International law as superior of national law.

However, now it is a well-established fact that International law is a very important part of law backed by many necessities. It is assuming more and more importance with every moment of time as globalization is at the peak.

· Public International Law: These are the rules which govern the conduct and relation between different states.
· Private International Law: These are those rules and principles through which cases having foreign elements are decided. For example, a contract between India and Nepal.
National (Municipal) Law: National or Municipal Law refers to those laws which are in the application within a particular State. These laws are further divided into,
· Public Law: Public law plays a very important role in regulation of State Activities and their functions. It is something which determines the relationship between the State and its Subject. This is further divided into three different classes i.e.
· Constitutional Law
· Administrative Law
· Criminal Law
· Private Law: This is a very important branch of law whose function is to govern the relation of citizens with each other. The main thing to note is that both parties in such cases are private individuals and State (Judicial Organ) adjudicates it. This Private law is further classified into four important types. They are:
· Law of Person
· Law of Property
· Law of Obligations
· Conflict of Laws


Obviously, laws are not as important as Oxygen is important to survive but have certain importance in the modern era. The proper conduct of an individual or Organization seems impossible without laws.

As mentioned above many individuals have tried to define law depending on their legal system and it is very difficult to define law in a single sentence. Each definition has its own importance and value in its legal system. The importance of law can be understood from the following Quotation.

“When every man lives without LAW Every man lives without FREEDOM.”
- Joseph Ratzinger (Pope Benedict XVI)

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Author: Dheeraj Diwakar,  Dr. Ram Manohar Lohia National Law University Lucknow

PART – 1 

A Brief Introduction.

Recently, there was a landmark Judgement into place which held that every individual has a right to privacy under Article 21 of the Constitution of India and that the State could not violate such right on arbitrary basis and conditions. The right to privacy of an individual means the right to be let alone and the right of a person to be free from any unwarranted interference. First of a few landmark cases that need to be discussed when we discuss the right to privacy would be MP Sharma Case.[1] This landmark case is known for having rejected the argument that the right to privacy could be considered under Article 21 of the Constitution as a fundamental right. Next in the list of landmark cases on the right to privacy is “Kharak Singh v. State of Uttar Pradesh.”[2] The Supreme Court held that the right to privacy could not be said to be a fundamental right and did not come under the ambit of Article 21 of the Constitution. Justice Subba Rao in dissent had held that the right to privacy was still an essential component of personal liberty through such provision was not incorporated as well as declared specifically a fundamental right under the Indian constitution. 
The next case, which is renowned for the issue of the right to privacy is “Govind v. State of Madhya Pradesh.”[3] The Court, in this case, held that there is an existence of a fundamental right under Article 21. This was the landmark case from wherein there was some hope that in the near future, the right to privacy can hold some relevance under Article 21 of the Constitution. Let us now come to the recent 9-judge bench landmark case of K.S. Puttaswamy v. Union of India,[4] wherein the Court held that right to privacy, is an invaluable asset of Article 21 of the Indian Constitution. The Court, in this case, also specifically overruled MP Sharma and Kharak Singh in so far as these 2 cases expressly did not recognize the right to privacy as a fundamental right. Other landmark cases related to the right to privacy would be Navtej Singh Johar v. UOI,[5] where the Supreme Court of India declared section 377 of the IPC unconstitutional in so far as it criminalizes consensual sexual conduct between adults of the same sex. 

Right to Privacy; Meaning.

In the simplest of terms, the right to privacy can be said to be the very basic fundamental right of any person. By this, it is meant that the right to privacy is a person’s very basic tent in life. The place where he lives, the websites that he visits, the office that he goes to, the opportunities that he looks for in the world all of this are very basic tenets of the right to privacy. What also needs to be kept in mind here is that where in this time of technology when each and every application that we download is demanding a right to access from us, the Courts before K.S. Puttaswamy have been ignorant of the right to privacy. We have a catena of judgements like MP Sharma and Kharak Singh on the same lines. Leave apart Govind Singh’s case, we can hardly see the Indian Judiciary focussing upon the right to individual dignity of a person. In the Indian laws, the right to privacy post the Puttaswamy judgement can be found in Article 21 of the Indian Constitution. It states that no person shall be deprived of his life or personal liberty except according to procedure established by law. The right guaranteed under this Article has been said to be the very fundamental right as similar to rights such as the right to food, right to clean environment, right to shelter, right to human treatment and many such basic rights which a citizen should enjoy and the State should make sure that they enjoy them. 

Coming over to the recent technological developments, we come to a conclusion that the technology has a positive and negative side to it. This means that the technological advancements nowadays have ruined our life in such a manner that we are not able to protect our right to privacy despite of many attempts. Even before we realize what website we have visited nowadays, from the server a number of people get access to the same. In earlier times, what used to happen is that one person when he would commit trespass, the law would give him an injunction or compensation or any other physical remedy that is within the jurisdiction of the Court. But as the times have changed, the right to life has expanded in its scope and now comprises the right to be let alone. Today, it has become a very small facet of our lives.


Legal philosophy today is dominated, for better or worse by legal positivism —the view that the only necessary factor in determining whether something counts as law is recognition by social sources. A distinction is often drawn in this context between inclusive and exclusive legal positivist theories. Inclusive legal positivism holds that social sources are the only necessary factor in conferring legal status. In some legal systems, however, the recognized social sources may incorporate moral or other external standards into the test for legal validity. Exclusive legal positivism, on the other hand, holds that the existence and content of law can only ever depend upon social facts. It is therefore necessarily true that the existence and content of law does not depend on its substantive content. 

Legal positivism’s focus on social sources as the only necessary determinant of legal validity is well adapted to explain some important features of the concept of law, such as its jurisdiction-specific nature and propensity to clash with morality and justice. However, it faces the challenge of adequately explaining law’s normativity without appealing to necessary moral content. HLA Hart, the most influential legal positivist of the last century — and the leading proponent of inclusive legal positivism, as defined above — sought to explain law’s normativity by analysing it as a species of social rule. Legal officials regard law as normatively binding, according to Hart, because they recognize the existence of social pressure to conform with the rule of recognition, which supplies the ultimate test for legal validity.


Early versions of legal positivism sought to explain law’s normativity by appealing to a centralized view of legal authority and emphasizing the role of coercion. John Austin, widely viewed as the founder of legal positivism, famously defines law as the command of a sovereign, backed up by sanctions. Austin’s view of a sovereign is premised on the notion of a single, dominant source of legal authority with in a given jurisdiction. The sovereign is defined as the authority to whom every one habitually renders obedience and who, in turn, habitually obeys nobody. Austin’s theory is therefore unable to accommodate less centralized forms of legal order, including those found in international and customary law. These normative orders, according to Austin, are not law ‘strictly so called’; rather, they are forms of ‘positive morality’.
Hart’s theory of law, by contrast, deliberately abandons Austin’s emphasis on the commands of the sovereign in favour of an analysis of law as a system of social rules. Legal rules are distinguished from other social rules (such as rules of morality and etiquette) by reference to an overarching rule of recognition that supplies the criteria for legal validity. The rule of recognition is itself a social rule embodied in the practices of legal officials. According to Hart, something counts as law because legal officials acting in accordance with the rule of recognition accept it as having the necessary features to confer legal status upon it.

Hart’s theory of law (unlike Austin’s) is not necessarily incompatible with non-state forms of legal order, such as customary law. Customary legal norms stem from processes that may be accepted as legally binding if they are acknowledged by the secondary rules of the relevant jurisdiction. A similar point applies to norms arising from contracts and other voluntary agreements. The legal force of a contract or marriage, Hart points out, does not come directly from the sovereign (as Austin’s theory might appear to suggest) but rather from the voluntary agreement of the parties, which is then recognized as binding by legal officials. An appropriately inclusive rule of recognition could, in principle, recognize a wide variety of social institutions as legally binding.
Hart uses his critique of Austin’s emphasis on sanctions to make a more fundamental point. He draws a distinction between ‘being obliged’ to do something and ‘having an obligation’ to do it: if someone holds a gun to our heads and tells us to hand over our money, we may be obliged to comply, but we would not say we had an obligation to do so. Having an obligation requires more than mere compulsion; it implies that we ought to behave in a certain way, due to the existence of a binding rule. Hart argues that the existence of law depends upon having obligations, rather than being obliged. This is not a matter of having certain beliefs, motives or reasons, but rather involves recognizing the existence of a social rule.

Social Instititionism

Hart’s theory of law offers a credible account of the nature and origins of social norms in the context of legal institutions. His treatment of this issue, however, leaves some important questions unanswered: how exactly do legal officials identify the content of their legal obligations and simultaneously judge themselves to be bound by them? How do these obligations emerge, evolve and persist over time? Our aim in the following sections is to offer some answers to these questions by drawing on recent work in social psychology and norm theory. We will begin by considering the contribution of social intuitionism, exemplified by the work of Tversky, Kahneman and Haidt, to our understanding of practical decision-making and, in particular, how practical decisions are influenced by the social environment.

It is admittedly beyond the scope of Hart’s project to explain the cognitive process by which legal officials identify their legal obligations. However, insofar as he does not address this topic, it leaves an explanatory deficit in his theory. An account of how this occurs would usefully supplement his theory. Social intuitionism plays this role by showing how practical decision-makers rely on judgements that incorporate both factual and normative dimensions. It therefore helps to explain how legal officials not only identify the content of legal rules, but also accept them as binding. However, it then becomes significant to ask whether this account can be integrated with Hart’s overall theory to yield a coherent explanatory picture. We will return to this question in the penultimate section of this article.

People do not usually respond to an ethical dilemma in a purely reflective way by weighing up the different options. Rather, they use System 1 thinking to form a holistic judgement about the case at hand. These judgements are not arbitrary, but are generally based on rough rules of thumb or heuristics that enable us to deal with complex situations in a cognitively efficient way. The soundness of the judgements will then depend on the reliability of the heuristics involved. System 1 thinking, then, is typically the first element of a practical decision. It is not necessarily the end of the process, since decision-makers will often employ System 2 thinking to reflect upon and perhaps modify their conclusions. However, decision-makers nonetheless begin their reflective reasoning with a preconceived sense of the relevant factors and, in many cases, at least a presumptive outcome.

The kinds of intuitive judgements identified by Haidt and his collaborators seem to be irreducibly be holistic in that they involve a combination of descriptive and normative factors. People confronted with ethically charged scenarios no doubt make intuitive judgements about the facts: they draw various inferences about what is going on in the situations described (including temporal ordering, causal relations and soon). However, these intuitive assessments also seem to have an intrinsic normative component. It is not that people make a purely factual judgement and then use syllogistic reasoning to conclude that because the conduct involves a particular kind of fact scenario it must be ethically wrong. This would involve a combination of System 1 and System 2 processes. Rather, the evidence suggests that the subject’s judgement of wrongness forms part of their initial reaction to the scenario.

The Role of Social Norms

Social intuitionism deepens Hart’s practice theory by explaining the cognitive process by which legal officials simultaneously identify the content of law and judge themselves to be bound by legal obligations. The role of heuristics in this account further helps to explain how the judgements of officials are shaped by their experiences over time and reinforced by the surrounding legal culture. More needs to be said, however, about how these heuristics are shaped by the social environment and, in particular, from where they derive their normative significance. How is it that legal officials are not only able to identify the content of legal rules, but also judge themselves to be bound by the associated legal obligations? The previous section suggested that these assessments are formed at least partly at a pre-reflective level, but this does not tell us where their content comes from. The present section draws on theories of social norms to offer a response to this question.

The Content of Legal Obligations

Hart, as we have seen, argues that legal officials identify the content of law in accordance with a rule of recognition. The rule of recognition is itself a social rule that officials follow because they have an obligation to do so. The content of this rule, for Hart, is supplied by authoritative social sources (such as legislation, judicial decisions and social customs), although some legal systems may incorporate moral standards into this overarching rule. Hart’s account of the rule of recognition, in this way, lays the foundations for his defence of legal positivism. The content of law, for Hart, is a matter of examining the content of the relevant social rules. It does not depend on any necessary moral test, apart from the very minimal (and not overtly moral) requirements imposed by what he terms the ‘minimum content of natural law’. does, of course, play a potential role in Hart’s theory in a range of other respects. The rule of recognition is a social fact that identifies the criteria for legal validity. However, as Hart makes clear, it might be accepted by legal officials for moral (as well as non-moral) reasons. Furthermore, according to Hart’s inclusive legal positivist outlook, the rule of recognition might incorporate moral norms among the standards for identifying valid law. It is also consistent with judicial reliance on moral principles in deciding certain kinds of cases. Nonetheless, Hart insists there is no inherent moral component to the test for legal validity.

The account of legal obligation given in this article, however, challenges Hart’s theory in two interlocking ways. First, as we have seen, Hart’s account leaves open the question of how exactly legal officials identify legal rules and simultaneously judge themselves to be bound by them. We have suggested that social intuitionism offers a plausible answer to this question. However, social intuitionism indicates that legal officials identify the content and force of law as part of holistic normative judgements. It is not the case that legal officials first identify the content of law and then judge themselves bound by it; rather, officials make a holistic judgement about what they ought to do that incorporates relevant legal standards.

It might be said that, on the account offered above, the rule of recognition is still a matter of social fact, because its content depends on interpreting the actions and beliefs of legal decision-makers. However, this is true only to the extent that the actions and beliefs of the legal officials are taken to be independent of other kinds of normative facts, such as facts about moral or prudential reasons. An interpretation of what others are likely to do and believe involves constructing a working theory of what motivational reasons they have, which will often involve asking what normative reasons they have (given the plausible assumption that people generally seek to act for reasons).

The Scope of Legal Obligations

Legal obligation, as Hart recognizes, is not solely a matter of legal officials interpreting the law. It is, rather, a matter of legal officials interpreting the actions and beliefs of other officials. It is likely to be the case that this process of interpretation yields a picture of legal obligation in which the positive sources of law play a central role. However, the conception of rule-following behaviour that constitutes the relevant sense of obligation is unlikely to be wholly determined by those sources. It is tempting to assume that legal obligation, as a species of social norm, simply follows the positive law, but it would be more accurate to view the positive law as providing an arena within which such obligations are formed.

A large society with a well-developed and stable legal system may therefore converge over time on a relatively coherent and consistent idea of legal obligation. This sense of legal obligation will reflect a complex social practice and will therefore exhibit some dynamism and local variation. It will be unlikely to correspond exactly to the content of positive law, but will rather depend upon what we might call the ‘folk law’: the law as popularly understood within the community. It might be expected to track roughly the positive law in its most salient requirements, particularly if sanctions are regularly applied to reinforce this. However, its content is also likely to be influenced by moral and prudential considerations independent of the law, for reasons analogous to those canvassed in the previous section.


We have argued in this article that Hart’s well-known theory of legal obligation can usefully be supplemented and extended by drawing on recent work in social psychology and norm theory. Hart’s theory, while insightful and explanatorily powerful, leaves some critical questions unanswered. These include questions about how legal officials identify the content of legal norms while at the same time judging themselves to be bound by them, and how these norms emerge and are sustained over time. We have argued that these questions can be at least partially answered by drawing on the social intuitionism of Tversky, Haidt and Kahneman, along with the theory of social norms developed by Bicchieri. These theories support the general picture of legal norms developed by Hart, while supplementing his relatively schematic view of the emergence and operation of legal normativity.

Our focus in this article has been on the implications of our account of social norms for Hart’s theory of legal obligation. However, the theory advanced here has wider implications. We will conclude by mentioning three of them. First, the dependence of legal norms on social norms means that the two categories necessarily bleed together. Legal officials necessarily take account of social norms in reaching their legal judgments. This suggests there is no clear and consistent distinction between the norms applied by legal officials and broader social processes of norm creation. Legal judgment, including the interpretation of legal materials, has an intrinsic social and cultural component. This challenges views of legal interpretation that focus myopically on the literal or originally intended meanings of legal texts. It also undercuts Hart’s view of legal systems as ‘Janus-faced’ entities involving two distinct and contrasting interpretive communities — namely, ordinary citizens and legal officials.

Second, we have noted that the rule-following behaviour of legal officials rests on their interpretation of the actions and expectations of other officials, at least as much as the formal content of the legal rules. This explains why legal officials, as a social group, tend to have a conservative view of law that resists exogenous change. Legislative amendments do not always produce immediate changes in the courtroom. This can be explained by the fact that the decision-making behaviour of legal officials will only change where their shared norms of conduct change — and this will only happen where they expect a general shift in the behaviour of their peers. The decision-making of legal officials is, in this sense, somewhat insulated from the effects of legal reform. A time lag may sometimes occur between changes in the positive law and changed outcomes in the courtroom and other decision-making arenas.