LEGAL METHOD

UNIT-I

DEFINITION OF LAW BY VARIOUS THINKERS: JOHN AUSTIN, JEREMY

BENTHAM, H.L. A HART, SAVIGNY, SIR HENRY MAINE, ROSCOE POUND,
EHRLICH, L.L. FULLER

JOHN AUSTIN

John Austin was a prominent legal theorist of the 19th century. According to Austin, the
definition of law is grounded in the notion of commands issued by a sovereign authority.

Austin defined law as a "command" given by a sovereign to members of a society. In his view,
a law is a rule of conduct that is:

1. Issued by a Sovereign: The sovereign is a person or group that is obeyed by the majority
within a society and has the power to enforce laws. This sovereign is not legally bound
by laws but commands others to follow them.
2. Backed by Sanctions: For a command to be considered a law, it must be backed by the
threat of sanctions or penalties. This means that laws are enforceable rules that come
with consequences for non-compliance.
3. Obeyed by the Society: The command must be obeyed by the members of society. Laws
are rules that are recognized and followed by the society, even though they are not
necessarily based on moral or ethical considerations.

Criticism

While John Austin's definition of law as a command of the sovereign backed by a sanction has
been influential, it has also faced significant criticism.

1. Customary laws: Many societies have laws that are based on custom and tradition,
rather than explicit commands from a sovereign. These laws may not involve threats of
punishment, yet they are still considered legally binding.
 2. Constitutional laws: Constitutional laws often limit the power of the sovereign and
establish rights for citizens. These laws are not always directly enforceable by the
sovereign, yet they are still considered valid law.
3. Neglect of Moral Considerations: Austin's theory emphasizes the factual aspects of law,
separating it from moral considerations. Critics argue that morality plays a crucial role
in the development and application of law, and that Austin's theory fails to adequately
account for this.
4. Failure to Address the Problem of Legal Validity: Austin's theory does not provide a
satisfactory explanation for the question of legal validity. If law is simply a command
of the sovereign, how can we determine whether a particular law is valid or invalid?

JEREMY BENTHAM

Jeremy Bentham, an influential philosopher and legal theorist, viewed law from a utilitarian
perspective. For Bentham, laws are rules designed to promote the greatest happiness or well-
being for the greatest number of people. The simple breakdown of his definition of law is as
follows:

1. Law as a Tool for Utility: Bentham defined law as a set of rules created by a sovereign
authority to maximize overall happiness and minimize suffering. He believed that the
purpose of law is to guide behavior in a way that benefits society as a whole.
2. Focus on Consequences: Bentham's approach is consequentialist, meaning that the
value of law is judged based on the outcomes it produces. If a law leads to more
happiness and less harm, it is considered good and effective.

Criticism

Overemphasis on Happiness: Critics argue that Bentham's focus on maximizing happiness can
overlook individual rights and justice. A law that benefits the majority might still be unfair or
harmful to minorities.

Difficulty in Measuring Happiness: It’s challenging to measure and compare happiness

accurately. Bentham’s approach assumes that happiness can be quantified and compared, which
can be problematic in practice.
Neglect of Moral Considerations: Some critics believe that Bentham’s utilitarian approach
neglects moral and ethical considerations that should be part of the legal system. Laws based
solely on utility might ignore principles of justice and fairness.

In essence, Bentham’s view of law emphasizes its role in promoting societal welfare through
utility, but it has been critiqued for potentially neglecting individual rights and ethical
dimensions.

H.L.A. HART

H.L.A. Hart, a prominent legal philosopher of the 20th century. He argued that law is not
merely a set of commands backed by threats, but rather a system of rules that is both primary
and secondary.

Hart defined law as a system composed of primary and secondary rules.

Primary Rules: These are rules that impose duties or obligations directly on individuals. They
dictate what people must or must not do (e.g., laws against theft or assault).

Secondary Rules: These are rules about how primary rules are created, changed, or interpreted.
They include rules of recognition (which help identify what counts as a legal rule), rules of
change (which allow for the modification of laws), and rules of adjudication (which provide
mechanisms for resolving disputes).

Rule of Recognition: A key concept in Hart's theory is the "rule of recognition," which is a
social rule that defines and validates what counts as a legitimate legal rule within a legal system.
This rule helps establish and maintain the legal framework.

Criticisms of Hart's Theory:

Overemphasis on Rules: Some critics argue that Hart's theory overemphasizes the role of rules
and underestimates the importance of other factors, such as morality, custom, and social norms,
in shaping legal systems.

Difficulty in Distinguishing Primary and Secondary Rules: Some argue that it can be difficult
to clearly distinguish between primary and secondary rules in practice, as many rules may serve
both functions.

Neglect of Moral Considerations: While Hart's theory emphasizes the importance of the
internal aspect of law, it does not fully account for the role of morality in shaping legal systems.
In conclusion, H.L.A. Hart's definition of law is a significant contribution to legal philosophy.
His distinction between primary and secondary rules and his emphasis on the rule of
recognition provide a more clear understanding of the nature of law. However, his theory has
also faced criticism for its overemphasis on rules, circular definition of the rule of recognition,
difficulty in distinguishing primary and secondary rules, and neglect of moral considerations.

SAVIGNY

Savigny was a prominent 19th-century German legal scholar, offered a historical and cultural
perspective on law. Here’s a simplified version of his definition:

 Law as a Reflection of the Spirit of the People: Savigny argued that law is not just a set
of rules imposed by a sovereign authority but a reflection of the "Volksgeist" or "spirit
of the people." This means that the law develops organically from the customs,
traditions, and collective consciousness of a society.
 Historical Development: Savigny believed that legal systems evolve over time as
societies evolve. Law should be understood in its historical and cultural context, and it
grows out of the needs and values of the people.
 Role of Jurists: According to Savigny, legal scholars and jurists play a crucial role in
interpreting and developing the law in alignment with the Volksgeist. They help to
systematize and clarify the law as it evolves.

Criticism

1. Overemphasis on Tradition: Critics argue that Savigny’s focus on the historical and
cultural development of law can be too conservative. It may lead to an overemphasis
on maintaining traditional practices, potentially hindering legal reform and adaptation
to modern needs.
2. Vagueness of Volksgeist: The concept of the "Volksgeist" is criticized for being abstract
and difficult to define precisely. It can be seen as a vague and subjective notion, making
it challenging to apply in practice.
3. Limited Role for Reform: Savigny’s approach might not sufficiently account for the
role of intentional legal reform. Critics argue that his theory could underplay the
importance of deliberate legal changes and innovations driven by legislative bodies or
reformers.
In summary, Friedrich Carl von Savigny viewed law as a reflection of the historical and cultural
spirit of a society, evolving naturally over time. However, his emphasis on tradition and the
abstract concept of Volksgeist has been criticized for potentially hindering legal reform and
being somewhat vague.

SIR HENRY MAINE

Sir Henry Maine, a prominent 19th-century legal scholar, defined law as "the gradual transition
from status to contract." This approach, similar to Savigny's, emphasizes the historical
development of law and the changing nature of legal relationships.

His definition can be summarized as follows:

 Law as a Product of Social Evolution: Maine believed that law evolves in stages
alongside the development of society. He saw legal systems as progressing from simple,
traditional forms to more complex and sophisticated structures.
 Transition from Status to Contract: Maine famously proposed that societies evolve from
systems based on social status (where people’s roles and rights are determined by their
social position) to systems based on contracts (where rights and duties are determined
by agreements between individuals).
 Historical Development: According to Maine, law reflects the social and economic
conditions of its time. As societies advance, their legal systems become more
individualized and less tied to traditional statuses.

Criticism

1. Oversimplification of Legal History: Maine's theory oversimplifies the complex

historical development of legal systems, focusing primarily on the transition from status
to contract. It ignores other significant factors, such as economic, social, and political
conditions, that have shaped legal systems.
2. Eurocentric Perspective: Maine's theory is often criticized for being Eurocentric, as it
primarily focuses on the development of legal systems in Western Europe. It may not
be applicable to other cultures and societies with different historical and legal traditions.
 3. Neglect of Other Legal Concepts: Maine's focus on status and contract may overlook
other important legal concepts, such as property, family, and criminal law, that have
played significant roles in the development of legal systems.

In conclusion, Sir Henry Maine's definition of law, while influential, has been criticized for its
oversimplification of legal history, Eurocentric perspective, neglect of other legal concepts, and
limited applicability to modern societies. While his historical approach has made significant
contributions to legal theory, it is not without its limitations.

ROSCOE POUND

Roscoe Pound, a prominent American legal scholar, defined law as "a social institution for the
realization of social interests." Here’s a simple summary of his definition:

 Law as a Social Tool: Pound viewed law as a tool for balancing social interests and
resolving conflicts within society. He believed that the primary role of law is to mediate
between various social needs and interests, ensuring stability and justice.
 Law and Social Engineering: Pound compared law to a form of “social engineering,”
meaning that it should be used to shape and improve society by addressing social
problems and promoting the common good.
 Focus on Purpose: According to Pound, the value of law lies in its ability to achieve
social objectives and fulfill the needs of the community. Law should not just be about
enforcing rules but about making sure those rules effectively serve social purposes.

Criticism

1. Practical Application: Critics argue that Pound’s theory can be too idealistic and may
not always provide clear guidance for legal practice. The idea of law as a tool for social
engineering can be difficult to implement in practice and might not always address
complex social issues effectively.
2. Vagueness of Social Engineering: The concept of “social engineering” is sometimes
seen as vague and open to interpretation. It can be challenging to determine precisely
how laws should be designed and applied to achieve desired social outcomes.
 3. Overemphasis on Social Goals: Some critics believe that Pound’s focus on social
purposes might overlook the importance of individual rights and the rule of law.
Emphasizing social objectives could potentially lead to neglecting legal principles that
protect individual freedoms and justice.

In conclusion, Roscoe Pound's definition of law, while influential, has been criticized for its
vague concept of social interests, overemphasis on social engineering, neglect of individual
rights, and difficulty in balancing competing interests. While his sociological approach has
made significant contributions to legal theory, it is not without its limitations.

EUGEN EHRLICH'S

Eugen Ehrlich, a prominent Austrian legal scholar, defined law as "the living law" that exists
within society, independent of official legal systems. He argued that true law is found in the
customs, traditions, and social practices of a community, rather than in written codes or judicial
decisions. Here’s a simple summary of his definition:

 Law as Living Law: Ehrlich proposed that law is not just what is written in statutes or
official documents, but what actually functions in society. He introduced the concept of
"living law" to describe the norms and practices that people follow in everyday life,
which may not always be captured by formal legal codes.
 Focus on Social Practice: According to Ehrlich, the real law is found in the social
practices and customs of people rather than in the formal legal texts. He emphasized
that the effectiveness of law depends on how it is practiced and accepted in society.
 Role of Social Institutions: Ehrlich also highlighted the role of various social
institutions (like family, professional groups, and organizations) in shaping and
influencing law. These institutions create and enforce norms that often have more
impact on people’s lives than formal legal rules.

Criticism

1. Neglect of Formal Law: Critics argue that Ehrlich’s focus on "living law" might
downplay the importance of formal legal systems and official legislation. By
emphasizing social practices over written laws, his theory could be seen as undermining
the role of formal legal institutions.
 2. Difficulty in Systematization: Ehrlich’s idea of "living law" can be challenging to
systematize and analyze. Since it focuses on informal norms and practices, it might be
difficult to create a coherent and structured understanding of law based on these varied
and often unrecorded practices.
3. Limited Scope: Some critics believe that Ehrlich’s perspective may have limited
applicability, particularly in more complex and bureaucratic legal systems where formal
laws play a significant role. His approach might be more suited to analyzing simpler or
less formally regulated societies.

In summary, Eugen Ehrlich defined law as "living law," focusing on social practices and
customs rather than just formal legal texts. However, his theory has been criticized for
potentially neglecting the role of formal law, being difficult to systematize, and having limited
applicability in complex legal systems.

LON L. FULLER

Lon L. Fuller, a 20th-century legal philosopher, is known for his work on the morality of law.
Here’s a simple summary of his definition.

 Law as a System of Principles: Fuller defined law as a system that should adhere to
certain principles to be effective and legitimate. He emphasized that law is not just
about having rules but about having rules that are consistent with fundamental
principles of justice and morality.
 Eight Principles of Legality: Fuller proposed that for laws to be valid, they must meet
eight principles of legality, including clarity, consistency, and stability. These principles
ensure that laws are applied fairly and that people can understand and follow them.
 The Internal Morality of Law: Fuller argued that law must have an internal morality—
that is, laws must be made and applied according to principles that reflect fairness and
justice. This internal morality is necessary for the law to be effective and legitimate.

Criticism

1. Abstract Principles: Critics argue that Fuller’s emphasis on abstract principles can be
too idealistic and may not always translate effectively into real-world legal systems.
The principles he advocates might be difficult to apply consistently in practice.
 2. Overemphasis on Morality: Some critics believe that Fuller’s focus on the internal
morality of law might be too restrictive. They argue that law should be considered
separately from moral values to accommodate a broader range of legal systems and
practices.
3. Lack of Focus on Social Context: Fuller’s approach is sometimes criticized for not fully
addressing the social and political contexts in which laws operate. His theory might not
account for the complexities and power dynamics that influence how laws are created
and enforced.

In summary, Lon L. Fuller viewed law as a system that must adhere to principles of legality
and internal morality to be effective and legitimate. However, his definition has faced criticism
for being too abstract, placing too much emphasis on morality, and not fully addressing the
social context of law.

CONCEPT OF LAW UNDER ARTICLE 13 OF THE CONSTITUTION OF INDIA

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FUNCTIONS OF LAW

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LAW, JUSTICE AND MORALITY

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CONCEPT OF JUSTICE AND ITS KIND

See the PPT for Meaning and Theories of Justice

Types of Justice

1. Social Justice:

In contemporary times a large number of scholars use prefer to describe the concept of Justice
as Social Justice. Social Justice is taken to mean that all the people in a society are to be equal
and there is be no discrimination on the basis of religion, caste, creed, colour, sex or status.

However, various scholars explain the concept of Social Justice in different ways. Some hold
that social justice is to allot to each individual his or her due share in the social sphere.
According to some others, distribution of social facilities and rights on the basis of law and
justice constitutes social justice.

By social justice we mean ending all kinds of social inequalities and then to provide equal
opportunities to everyone.

In the Indian Constitution several provisions have been provided with a view to secure social
economic and political justice. Untouchability has been constitutionally abolished. Every
citizen has been granted an equal right of access to any public place, place of worship and use
of places of entertainment.

The state cannot discriminate between citizens on the basis of birth, caste, colour, creed, sex,
faith or title or status or any of these. Untouchability and apartheid are against the spirit of
social justice. Absence of privileged classes in society is an essential attribute of social justice.

2. Economic Justice:

Economic Justice is indeed closely related to social justice because economic system is always
an integral part of the social system. Economic rights and opportunities available to an
individual are always a part of the entire social system.

Economic justice demands that all citizens should have adequate opportunities to earn their
livelihood and get fair wages as can enable they to satisfy their basic needs and help them to
develop further. The state should provide them economic security during illness, old age and
in the event of a disability.
No person or group or class should be in a position to exploit others, nor get exploited. There
should be fair and equitable distribution of wealth and resources among all the people. The gap
between the rich and the poor should not be glaring. The fruits of prosperity must reach all the
people.

3. Political Justice:

Political justice means giving equal political rights and opportunities to all citizens to take part
in the administration of the country. Citizens should have the right to vote without any
discrimination on the basis of religion, colour, caste, creed, sex, birth or status. Every citizen
should have an equal right to vote and to contest elections.

4. Legal Justice:

Legal Justice means rule of law and not rule of any person. It includes two things: that all men
are equal before law, and that law is equally applicable to all. It provides legal security to all.
Law does not discriminate between the rich and the poor. Objective and due dispensation of
justice by the courts of law is an essential ingredient of legal justice.

The legal procedure has to be simple, quick, fair, inexpensive and efficient. There should be
effective machinery for preventing unlawful actions. The aim of law is the establishment of
what is legitimate; provide legal security, and prevention of unjust actions. -Salmond.

Thus, Justice has four major dimensions: Social Justice, Economic Justice, Political Justice and
Legal Justice. All these forms are totally inter-related and inter-dependent. Justice is real only
when it exists in all these four dimensions. Without Social and Economic Justice there can be
no real Political and Legal Justice.

CONCEPT OF MORALITY: SOCIAL MORALITY AND CONSTITUTIONAL

MORALITY

Morality, broadly defined, is a system of beliefs and values that guide individual and collective
behavior. It often involves notions of right and wrong, good and evil, and what is considered
acceptable or unacceptable in a society. Morality can be influenced by various factors,
including religion, culture, upbringing, and personal experiences.
There are two primary types of morality that are often discussed in legal contexts: social
morality and constitutional morality.

Social Morality

Social morality refers to the shared values, beliefs, and customs that are prevalent within a
society. It is often informal and unwritten, but it can have a significant impact on the behavior
of individuals and groups. Social morality can be influenced by various factors, such as
religion, culture, tradition, and historical events.

Examples of social morality include:

Honesty: The belief that it is wrong to lie or cheat.

Respect: The belief that it is important to treat others with dignity and consideration.

Compassion: The belief that it is important to help those in need.

Equality: The belief that all people are equal and should be treated fairly.

Constitutional Morality

Constitutional morality, on the other hand, is the set of moral principles that are enshrined in a
nation's constitution or other legal documents. It is a more formal and explicit form of morality,
and it is often used to guide the interpretation and application of laws. Constitutional morality
can be influenced by social morality, but it is also shaped by historical events, political
philosophies, and legal precedents.

Examples of constitutional morality include:

Individual rights: The belief that individuals have certain fundamental rights, such as the right
to freedom of speech, religion, and assembly.

Rule of law: The belief that laws should be applied equally to everyone, regardless of their
social status or political connections.

Separation of powers: The belief that the government should be divided into three branches
(executive, legislative, and judicial) to prevent the concentration of power.

Equality before the law: The belief that all people are equal under the law and should be treated
fairly by the justice system.
Both social morality and constitutional morality play important roles in shaping the behavior
of individuals and societies. While social morality can be informal and unwritten, it can have
a significant impact on the way people think and act. Constitutional morality, on the other hand,
is more formal and explicit, and it provides a framework for the interpretation and application
of laws.

It is important to note that social morality and constitutional morality can sometimes conflict
with each other. For example, a society may have a strong tradition of respecting authority, but
a constitutional democracy may emphasize the importance of individual rights and limited
government. In such cases, it is often necessary to find ways to balance competing moral values
and principles.

Supreme Court on Constitutional Morality

In 2014, the term 'Constitutional Morality' started to gain popularity, and various judges,
especially of the Hon'ble Supreme Court, referred to this term in their judgments. There are
multiple cases of the Supreme Court where Constitutional Morality has brought a revolution in
our Indian society.

"Constitutional morality in its strictest sense implies a strict and complete adherence to the
constitutional principles as enshrined in the various segments of the document. It is required
that all constitutional functionaries to "cultivate and develop a spirit of constitutionalism"
where every action taken by them is governed by and is in strict conformity with the basic
tenets of the Constitution."

Constitutional Morality vs Social Morality

In the Navtej Singh Johar case, the Supreme Court ruled that Constitutional Morality takes
precedence over social morality.

It struck down a provision in the Indian Penal Code that criminalized consensual sexual
conduct between adults of the same sex.

The social morality of people cannot be the justification for the violation of any community's
fundamental rights. Any unjust treatment to any society must be rectified as early as possible
because it is the constitutional morality that prevails and not the social morality.
NEXUS BETWEEN LAW AND MORALITY

Law and Morality are two systems that govern the way humans behave. Law is a body of rules
and regulations that all people are mandatorily obligated to adhere to. Morals, on the other
hand, refer to general principles or standards of behavior that define human conduct within
society but are not compulsory to be followed. The relationship between law and morality is a
complicated one and has evolved over the years. Initially, the two were considered equivalent
but with time and progressiveness, it is highlighted that the two are different concepts, but with
certain inter-dependency between them.

History

In ancient times, when legal regulations were still at a very nascent stage, there was no
particular distinction between law and morals. In India, Dharma was considered as law and
morality. Hindu law, for example, was primarily derived from the Vedas and Smritis which
were essentially values of the people. However, with time, Mimansa put forth certain principles
which categorically distinguished between obligatory rules which are rules that are mandatory
to be followed and are considered as law, and recommendatory rules which are suggested
because they are good if they are followed and would amount to morality. Even in the middle
age period, the Bible was considered as the major factor which influenced the legal regulations.
Eventually, with time and new philosophies, the idea that there is a difference between these
two concepts emerged.

Morality as the basis of law

Throughout history, no clear distinction has been made between law and morality. By virtue of
a lack of distinction, all laws found their origin from what was considered morally correct by
the people in a society. Eventually, the state picked up what was morally correct and gave it the
form of laws or rules and regulations. Therefore, the law finds its origin and is based on the
values that float amongst the people, creating a similarity between the two concepts, i.e. law
and morality. For example, it is morally wrong to kill someone or to rape someone. This value
has taken the form of a law. Morality may with time have been distinguished with laws, but it
remains an integral part of legal development. Law essentially involves certain basic principles
such as the principle of fairness and equality, and these principles are derived from ethics and
morals.
Morality as test of law

The entire purpose of the existence of laws is to ensure justice in society and do what is best
for the welfare of all the people. Since the principle of justice is well under the ambit of
morality, many jurists are of the opinion that there must not be any contradiction between law
and morality. Any law which does not abide by moral standards should be removed and whether
a law is right or wrong can be evaluated based on whether it is in consonance with moral values.

Morality as ends of law

As stated before, the end goal of enacting laws is to maintain a society that is based on
principles of justice, fairness, and equality. The entire purpose of having certain moral
standards is also to maintain some sort of order in the society which would lead to fewer
conflicts. This shows that more or less, the purpose of both these phenomena is the same. It is
believed by jurists that if the law is to stay involved in the lives of people, then it cannot ignore
morals. If there is a law that is against moral standards, people may be hesitant to obey it which
will create further conflicts within the society.

Difference between law and morality

Law and morality may be interdependent to an extent and have certain similarities such as the
same goals, but there are certain factors based on which the two concepts can be differentiated:

1. Law is derived from an external source which means that it is obtained through rules
and regulations. Morality emerges from internal sources, i.e. it comes from the
individual mind of a person.
2. Law treats all people in the same manner and doesn’t change from person to person but
morality is a subjective concept.
3. Morality has influenced the creation of laws but morality existed in society since even
before legal implications were discussed.
4. Disobedience of the law leads to punishment but there are no repercussions of doing
anything morally wrong.
5. Laws lay down mandatory behaviour that is expected out of the people who are
governed under the said law. However, morality does not lay down strict guidelines of
how one should behave but is a more personal concept.
CLASSIFICATION OF LAWS

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