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COURSE MANUAL

Jurisprudence I

Spring 2024
(AY 2023-24)

Instructors:

Sandeep Kindo
Pinki Mathur Anurag
Somil Kumar
Aleksei Vorona
Harshit Rai
Shradha Prasad
Gayatri Virmani
Vandana Gyanchandani
Vidushi Kothari
Payal Mangla
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CONTENTS

PART I

a. General Information………………………………..……………………………….3

PART II

a. Course Description………...………………………………..……………………….4

b. Course Aims……………….………………………………………………………….4

c. Intended Leaning Outcomes.…………………………………….……………........4

d. Grading of Student Achievement…………………………….………………….....7

PART III

a. Keyword Syllabus……………….………………………………………………….10

b. Course Policies………………….…...…….……………………………………….10

PART IV

a. Weekly Course Outline.…………………..…………………………………...…...12

b. Readings……………………………………………………………………………..13
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PART I

General Information

General Information on Jurisprudence I offered by Jindal Global Law School for the
AY 2022-23

The information provided herein is by the Course Coordinator. The following information
contains the official record of the details of the course.

This information shall form part of the University database and may be uploaded to the
KOHA Library system and catalogued and may be distributed amongst ____ year Law
students for B.A.LL.B. (Hons), B.B.A.LL.B. (Hons); B.Com. LL.B. (Hons), B.A. (Hons)
Legal Studies, B.A. (Hons) Criminology and Criminal Justice; LL.B.; and LL.M. courses if
necessary.

Course
Title: Jurisprudence
Course
Code:
Course
Duration: One Semester
No. of Credit
Units: 4
Level
:
Medium of
Instruction: English
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Part II

a. Course Description
Literally translated, jurisprudence means ‘wisdom about the law’. This course aims to do just what
it says on the tin. But if this is the course that makes you wiser about the law what about everything
else you study in law school? To be sure, they too do make you wiser, but about specific areas and
doctrines in the law, about specific legal regimes and the like. Jurisprudence, on the other hand, is
a general reflection about the law which is undertaken at a certain level of abstraction (more below
on the utility of studying something this abstract). Such being the nature of jurisprudence, it involves
forays into the many areas in the intersection of which the law is situated e.g. philosophy, sociology,
economics and politics. This course will emphasize more on philosophy, by which I mean that we
will emphasize on philosophical reflections on the law by philosophers, more than economists and
sociologists etc. The names of some of the philosophers we will be reading might ring a bell:
Bentham, Austin, Hart, Kelsen, Dworkin, Raz (no need for alarm bells if they don’t). We will also
have the occasion to consider debates on the hardy perennials of philosophy in the public domain—
What is justice? Can the state prohibit conduct merely because it is immoral?

b. Course Aims
You must note, that what legal philosophers have said will only be our point of departure. The
purpose of jurisprudence is not to tell you what a bunch of philosophers thought about the law.
Rather it is to make you see the issues underlying their accounts; show you what positions can be
taken about them and guide you towards actually taking positions on them. Just like to do
philosophy is to be a philosopher to do jurisprudence is to be a jurisprude yourself. You have to
experience the problems legal philosophers were grappling with to realize the importance of such
questions. The point of Jurisprudence is to acquaint you with how to think rather than teach you
mastery over what others have thought. Read on to understand the kind of questions which legal
philosophers have taken positions on and why those questions have been found to be appealing.

c. Intended Learning Outcomes

Course Intending Learning Teaching and Learning Assessment

Outcomes Activities Tasks/Activities

By the end of the course students

should be able to:

Analytically and 50% Reading of philosophical End-of-course

critically describe, texts other material, and examination (50% of
explain, and take weight Research marks)
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positions in the main

philosophical debates
Students will
pertaining to the
acquire knowledge
topics to be covered of the philosophical Internals (50% of marks
in the syllabus. for items such as
attendance, essay papers,
debates their group
motivations and Presentation, and
implications)
Participation)
pertaining to the
topics to be covered
in the syllabus.
Lectures

Students will be
given guidance on
their reading and
research for their Students’ ability to
lectures and describe, explain
tutorials. and take positions
on the philosophical
Students will, by
debates covered in
responding to
the syllabus will be
questions and
tested by all the
Performing
above assessment
exercises, develop
tasks/activities
their analytical and
critical capabilities
discuss important
issues of liability
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pertaining to topics
covered in the
syllabus.

Analyse and 50 % Lectures End-of-course examination

critically engage
with: Weight Students will be Students’ ability to
issues and introduced to take join issue in the
concerns in positions on and philosophical debates;
reflected in the join issue in the critically engage with
jurisprudential debates introduced tne debate; and
debates in the class suggest (not in a
the relevance of Preparation for tutorials comprehensive
the debates to manner, however)
live debates in Students will novel approaches to
law and politics: research issues the issues at hand
o in terms of outlined in the will be tested.
the practical jurisprudential texts Internals:
and debates
implications
Tutorials Students will be
of the issues required to write
essays, make
identified in
Students will give presentations on
the deabte
presentations on problems / reading
o their
selected topics in materials allotted to
conceptual
which they will them and all students
underpinning
scrutinise, analyse will be required
s
and evaluate issues contribute to tutorial
o in relation to and concerns discussions whether
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the law in
they are making a
action
presentation or not.
Students’ ability to
research, analyze and
resolve problems, and
communicate
solutions orally will
be tested.

Note: The internal assessment may vary between sections. The concerned course instructor will
inform students about internal assessments at the beginning of the semester.

d. Grading of Student Achievement

To pass this course, students must obtain a minimum of 40% in the cumulative aspects of
coursework, e.g. moot, and final examination. End of semester exam will carry 50 marks out
of which students have to obtain a minimum of 15 marks to fulfil the requirement of passing
the course.

The details of the grades as well as the criteria for awarding such grades are provided below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding work
with strong
evidence of
knowledge of the
subject matter,
excellent
organizational
capacity, ability to
synthesize and
critically analyse
and originality in
thinking and
presentation.
A+ 75 to 79.75% Excellent Sound knowledge
of the subject
matter, thorough
understanding of
issues; ability to
synthesize
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critically and
analyse
A 70 to 74.75% Good Good
understanding of
the subject matter,
ability to identify
issues and provide
balanced solutions
to problems and
good critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate
knowledge of the
subject matter to
go to the next level
of study and
reasonable critical
and analytical
skills.
B+ 60 to 64.75% Marginal Limited knowledge
of the subject
matter, irrelevant
use of materials
and poor critical
and analytical
skills.
B 55 to 59.75% Poor Poor
comprehension of
the subject matter;
poor critical and
analytical skills
and marginal use
of the relevant
materials.
B- 50 to 54.75% Pass “Pass” in a pass-
fail course. “P”
indicative of at
least the basic
understanding of
the subject matter.

NEW COURSE LETTER GRADES AND THEIR INTERPRETATION

Letter Percentage Grade
Interpretation
Grade of Marks Points
Pass 1: Pass with Basic understanding of the
P1 45 - 49 2
subject matter.
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NEW COURSE LETTER GRADES AND THEIR INTERPRETATION

Letter Percentage Grade
Interpretation
Grade of Marks Points
Pass 2: Pass with Rudimentary
P2 40 - 44 1
understanding of the subject matter.
Fail: Poor comprehension of the subject
matter; poor critical and analytical skills and
F Below 40 0
marginal use of the relevant materials. Will
require repeating the course.
“Extenuating circumstances” preventing the
student from taking the examination; the Vice
I Absent
Dean (Examinations) at their discretion assign
the “Ab” grade.
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PART III

a. Keyword Syllabus
Command Theory; Sovereign; Jeremy Bentham; John Austin; Historical School; Samuel
Pufendorf; Savigny; Oliver Wendell Holmes; American Legal Realism; Reductionism;
Scandanvian Legal Realism; Ross; Hagerstrom; Olivecrona; Legal Positivism; Natural Law
Theory; H.L.A.Hart; Hans Kelsen; Grundnorm; Rule of Recognition; Ronald Dworkin; Critical
Legal Studies; Feminist Jurisprudence; Justice; John Rawls; Rights; Fundamental Legal
Conceptions; Hohfeld.

b. Course/Class Policies
Online sources can be classified into reliable, unreliable and outright bogus. The Internet is an open
domain in which all and sundry can create web pages and indulge in propaganda, falsification or
misrepresentation of events. The few sources that can help you with basic information and which are
fairly unbiased are: websites of established newspapers, magazines and journals. Student should
always consult with the instructors about the veracity and authenticity of a particular web site and its
suitability for researching topics covered in this syllabus

Academic Integrity and Plagiarism

Learning and knowledge production of any kind is a collaborative process. Collaboration demands
an ethical responsibility to acknowledge who we have learnt from, what we have learned, and how
reading and learning from others have helped us shape our own ideas. Even our own ideas demand
an acknowledgement of the sources and processes through which those ideas have emerged. Thus,
all ideas must be supported by citations. All ideas borrowed from articles, books, journals,
magazines, case laws, statutes, photographs, films, paintings, etc., in print or online, must be
credited with the original source. If the source or inspiration of your idea is a friend, a casual chat,
something that you overheard, or heard being discussed at a conference or in class, even they must
be duly credited. If you paraphrase or directly quote from a web source in the examination,
presentation or essays, the source must be acknowledged. The university has a framework to deal
with cases of plagiarism. All form of plagiarism will be taken seriously by the University and
prescribed sanctions will be imposed on those who commit plagiarism.

Disability Support and Accommodation Requirements

JGU endeavours to make all its courses accessible to students. In accordance with the Rights of
Persons with Disabilities Act (2016), the JGU Disability Support Committee (DSC) has identified
conditions that could hinder a student’s overall well-being. These include physical and mobility
related difficulties, visual and hearing impairment, mental health conditions and
intellectual/learning difficulties e.g., dyslexia, dyscalculia. Students with any known disability
needing academic and other support are required to register with the Disability Support Committee
(DSC) by following the procedure specified at https://jgu.edu.in/disability-support-committee/
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Students who need support may register any time during the semester up until a month before the
end semester examination begins. Those students who wish to continue receiving support from the
previous semester, must re-register within the first month of a semester. Last minute registrations
and support might not be possible as sufficient time is required to make the arrangements for
support.

The DSC maintains strict confidentiality about the identity of the student and the nature of their
disability and the same is requested from faculty members and staff as well. The DSC takes a
strong stance against in-class and out-of-class references made about a student’s disability without
their consent and disrespectful comments referring to a student’s disability.

All general queries are to be addressed to [email protected]

Safe Space Pledge

This course may discuss a range of issues and events that might result in distress for some students.
Discussions in the course might also provoke strong emotional responses. To make sure that all
students collectively benefit from the course, and do not feel disturbed due to either the content of
the course or the conduct of the discussions. Therefore, it is incumbent upon all within the
classroom to pledge to maintain respect towards our peers. This does not mean that you need to feel
restrained about what you feel and what you want to say. Conversely, this is about creating a safe
space where everyone can speak and learn without inhibitions and fear. This responsibility lies not
only with students, but also with the instructor.

P.S. The course instructor, as part of introducing the course manual, will discuss the scope of the
Safe Space Pledge with the class.
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PART IV

a. Weekly Course Outline

Week 1 Introduction
Week 2-3 Command Theories and their Predecessors (Historical School,
Voluntarism and Natural Law Theory)
Week 4 Legal Realism: American and Scandinavian
Week 5 Kelsen and the Purity of Law
Week 6-7 Hart’s sophisticated legal positivism: Law as a System of Rules
Week 8-9 Ronald Dworkin: The Noble Dream
Week 10 Justice
Weeks 11-12 Critical Approaches: Critical Legal Studies and Feminist Jurisprudence
Week 13 Moral Limits of the Law
Week 14 - Optional Fundamental Legal Concepts: Hohfeld’s Typology
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b. Readings

WEEK 1

Introduction

Jurisprudence sometimes carries the tag of being an otherworldly, dense and impenetrable subject.
Before anything else, I want to dispel this wrong impression. Jurisprudence is a subject that
challenges intellectual lethargy and forces us to seek clarity of thought and expression. No legal
concept or cherished dogma is beyond the critical gaze of the jurisprude. When simple legal
answers run out, one must turn to jurisprudential tools in seeking novel solutions. Jurisprudence
will make you a better corporate or tax or litigation lawyer; it will make you a better, disciplined
thinker, generally. We will be encountering many live issues needing jurisprudential tools for their
resolution later in the course, but as an introduction, read the following debate from Plato’s
Republic to see some of the hardy perennials of jurisprudence which recur and have figured
prominently in the literature across ages. This reading is meant to give you a flavor of the kind of
issues which need jurisprudence for their understanding and solution. Why Plato you may wonder?
A lot of western philosophy (and jurisprudence) has baked with the dough of the Greek classics.
Visiting the source will give us a sense of what lies ahead in the course.

Reading:

Simon Blackburn, Plato’s Republic (Grove 2007) 21-41

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WEEKS II-III

Command Theories and their Predecessors

Legal Positivism is a doctrine about the nature of law according to which laws are posited (laid
down). The legal validity of a rule or decision depends on its sources (e.g. its pedigree) rather than
its merits (e.g. whether or not it is a good rule).

Command Theories

This way of understanding law was made famous during the nineteenth century by the ‘command’
theories of law advanced by Jeremy Bentham and John Austin (but the roots of Sovereign
command theories are much older e.g. Hobbes). Due to a historical accident, it is Austin’s writings
that became more prevalent than Bentham’s though the former was the latter’s disciple and a far
more sophisticated legal philosopher. It is very important to understand the command theorists
because they were enormously influential and a lot of 20th century legal philosophy including
Kelsen and Hart evolved in response to these command theories.

According to these theories, something is law if it has been commanded by a Sovereign, and is
backed up by the threat of a sanction in case of non-compliance.

Command theories have some things going for them which explained their sway over us for so
long: They urge us to identify and understand what law is before considering whether it is morally
good or bad; They give a central role to sanctions which are ubiquitous in the law.

Questions to consider

There may however be problems with this manner of thinking many of which were admirably
brought out by Hart and Kelsen (which we will consider in detail in later weeks). But for now just
think of some of these problems.

If law is a command of the sovereign backed up by threat of sanction, what about

international law? Is it not law at all? Don’t you think this tells us that something may be
wrong about this theory? Can’t there be law without a sovereign?

If each law is posited by an act of the Sovereign way how does one explain the phenomenon
that legal systems seem to have a life of their own, distinct from the lives of the Sovereigns?
Which is to say, don’t legal systems remain in force even when one Sovereign dies or one
legislature dissolves and a new one ascends to the throne or is reconvened?
Can you not think of law without sanctions? What about the power to make wills? Or the
many permissive laws that permit actions?
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Readings:

Suri Ratnapala Jurisprudence (Cambridge 2009) 36-47

Further readings:

John. D.Finch Introduction to Legal Theory Chapter 4

William Sweet, ‘Jeremy Bentham’ Internet Encyclopedia of Philosophy (Open online access)

John Austin The Providence of Jurisprudence Determined

Jeremy Bentham An Introduction to the Principles of Morals

Roger Cotterrell The Politics of Jurisprudence (Oxford India 2008) Chapter 3

H.L.A Hart, ‘Bentham’s Of Laws in General’ in Hart, Essays on Bentham (Oxford 1982)

Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge:
Cambridge University Press, 1995

The Predecessors: Voluntarism, Natural Law and the Historical School

The command theories have exercised a disproportionately large influence on legal philosophy
To completely understand the command theories it is absolutely essential to know what they
were responding to. Here were will see three important schools: the moral voluntarists, the
Historical School and the classical natural lawyers for whom an unjust law was not law at all.
The command theorists were responding to what they saw as some glaring shortcomings of these
predecessors.

Readings:

Brian Bix, Jurisprudence: Theory and Context 275, 276

Christine Korsgaard Sources of Normativity (extracts)

Kenneth Himma Natural Law Internet Encyclopedia of Philosophy

http://www.iep.utm.edu/natlaw/

Further readings:
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Finnis, John. (1980). Natural law and natural rights. Oxford : New York : Clarendon Press ;
Oxford University Press

Questions to consider

What makes it the case that the say-so of the sovereign is morally binding? Doesn’t it need
something ‘above’ it to make it so? Will this not lead to infinite regress?

What do we gain by denying that unjust law is law? Does this add to clarity or detract from
it? Is it of any practical utility to deny that unjust law is law?
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WEEK IV

American Legal Realism

Realism is a project designed keep an area of thought close to what is widely and uncontroversially
recognized as the reality as opposed to mere idealism. Sometimes, this project is also called
reduction. Translating a complex, problematic idea that does not have a firm footing in science
into one that has a strong scientific basis is the point of reduction or realism. Accordingly, the
Legal realists’ quest was to expel from the ‘science of law’ all but empirically verifiable
propositions. Realists condemn as idealistic (unscientific) any categories of legal thought that
cannot be reduced to empirical facts. So, for them the idea of an obligation is pretty much
nonsense unless translated to the predictability of sanction (note the clear similarities with
Bentham and Austin here).

There are two realisms that have been prominent in legal theory. One is American Legal Realism
and the other is Scandinavian Realism. While American Legal Realism is older, it was
Scandinavian Realism which was the more sophisticated of the two. While both the American and
Scandinavian realists were committed to a scientific and empiricist approach the Scandinavians
paid close approach to the way in which law played a role in the mentality of those subject to it.
We will study American Legal Realism here and return to study Scandinavian Legal Realism after
studying Kelsen.

American Legal Realism

The leading light of this movement was the celebrated American Supreme Court Judge, Justice
Oliver Wendell Holmes Jr. Holmes saw the legal obligation as a prediction that sanctions were
likely to be visited upon someone not following a course of conduct. Accordingly, Holmes saw a
contractual obligation as the obligation to pay damages in case of breach. But doesn’t this put the
cart before the horse?

Readings:

Brian Bix, Jurisprudence: Theory and Context (Sweet& Maxwell 2012) 193-205.

Oliver Wendell Holmes, Jr. ‘The Path of the Law’ 10 (1897) Harvard Law Review 457
http://www.gutenberg.org/files/2373/2373-h/2373-h.htm

Alf Ross ‘Tu Tu’ 70 (1958) Harvard Law Review 812

(Note: Alf Ross’ was a Scandinavian Legal realist and his variety of realism was in many ways
different and much more sophisticated than that of the American Legal Realists. Ross has been
recommended here to be read alongside Holmes because the empiricist (reductionist) ambitions
are revealed in Ross far greater clarity)
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Further Readings:

F. Cohen, ‘Transcendental Nonsense and the Functional Approach’, 35 Columbia LR (1935) 809

K. Llewellyn, ‘A Realistic Jurisprudence – The Next Step’, 30 Columbia LR (1930) 431

Jerome Frank Law and the Modern Mind (extracts from Lloyds Jurisprudence)

Karl Llewellyn ‘Some Realism About Realism 44 (1931) Harvard Law Review 1222

William Twinning Karl Llewellyn and the Realist Movement 1973 (extracts)

Questions to consider

Can legal obligation be understood as a prediction of threat of sanctions? What about a

case where a person is clearly not threatened by sanctions (say a hardened swindler) would
you say he has no legal obligation?

Holmes puts the bad man at the heart of his account. But is this the perspective one should
worry about while try to give a philosophical account of the law?

If all there is to obligation is a fear of sanction or threat, is there no difference between the
law and the gunman’s commands? Where does this leave the law? Is the law then nothing
more than a mere system of coercion?

Scandinavian Realism

Scandinavian Legal Realists were a the group of legal philosophers sometimes referred to in a
tongue-in-cheek manner as ‘the wild prophetic figures riding in from the hills with a message for
legal philosophers’ due to their radical and iconoclast philosophy. This group comprised of
philosophers Axel Hagerstrom, Karl Olivecrona, Vilhelm Lundsted and Alf Ross. Hagerstrom, the
leading light of this movement, propounded a strictly empiricist and naturalist philosophy that
sought to eliminate what he thought was speculative metaphysics. His chosen motto raised a call
to arms against metaphysics, "Praetere censeo metaphysicum esse delandam”.1 Integral to
Hagerstrom’s and Scandinavian Realists philosophy (legal and moral) was a non-cognitivist
account of moral value, which according to him, consisted in the idea of moral ‘internalization’.
They in fact saw Kelsen as an inheritor of the troublesome legacy of natural law and wanted to do
away with every vestige of the natural law. Kelsen’s grundnorm was nothing but natural law redux,
they thought and hence wanted to banish it. It is now widely thought that Hart demolished the
program of the Scandinavian Realists. Though they now don’t have the following they once did,
they can be seen as precursors to Hart. Seeing the points of contiguity between Scandinavian
Realists and Hart is an interesting exercise.
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Readings:

Suri Ratnapala Jurisprudence (Cambridge 2009) 36-47

Further Readings:

Axel Hagerstrom Inquiries into the Nature of Law and Morals (1953) (extracts to be specified)

Alf Ross On Law and Justice (1958) (extracts to be specified)

Karl Olivcrona, ‘Realism and Idealism’ 26(1951) N.Y.U. L. Rev. 120

Questions to consider:

Are terms like legal right and duty merely superstitious metaphysical fictions?

Can an obligation be as closely intertwined with a feeling to be bound by the rule? Can’t
we acknowledge the existence of legal obligation without at the same time being bound by
it?

Does one have to go all the way down the empiricist route as the Scandinavian Realists go,
in order to remain metaphysically austere?
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WEEK V

Kelsen: The Purity Theorist

Kelsen, along with Hart was one of the most influential theorists of the 20th century. You will
recall (from the introductory readings) that he has also been cited by Constitutional Courts in the
new commonwealth in cases dealing with coups. A lot of movement in legal thought was made in
responding to Kelsen. Kelsen pointed out that the command theorists were mistaken in
characterizing the law as a command of the sovereign backed up by threats. Why--because if that
were to be the case, there would be no difference between the law and a gunman’s command; but
there is a difference between the two. The law unlike the gunman’s commands is ‘normative’ an
‘ought’; and this ought is ‘binding’. Valid law, in short, is normative and binding. But what makes
this binding? It is not because some sovereign said so, or because it is morally meritorious. It is
binding because the law derives its validity from the grundnorm i.e. basic or ultimate norm of the
legal system. The basic norm lends unity to the legal system by endowing the norms (rules of law)
under it with both validity and normativity. But where does this grundnorm come from? Kelsen is
famously ambiguous. It is a postulate he argues.

Readings:

Brian Bix, Jurisprudence: Theory and Context 57-67

Andrei Marmor ‘Pure Theory of Law’ Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/entries/lawphil-theory/

Further Readings:

Hans Kelsen, General Theory of Law and State (1945), Part One: Section I, II,IV Section X

Hans Kelsen, Pure Theory of Law (2nd ed. 1967), Section I, Section V,

Joseph Raz, The Authority of Law (1979), ch. 7

Finnis, ‘Revolutions and Continuity of Law’, in Simpson (ed.), Oxford Essays in Jurisprudence,

Second Series (1973)

Schmitt C, Schwab G (Translated), ‘Political Theology’ Political Theology Four Chapters On

The Concept Of Sovereignty (The University of Chicago Press Chicago and London,1985 ) ch3.

Rosenfeld Michel, ‘Confronting the Gulf Between Law and Solidarity: Kelsen Encounters
Freud’ A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of
Rising Populism and Illiberalism (Oxford University Press,2022) Part II
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Questions to consider:

What is the nature of the legal ‘ought’? Is it a disguised moral ‘ought’ despite all of

Kelsen’s protestations to the contrary?

How does the grundnorm originate? Does it not merely hang in the air?

Can legal obligation be thought of merely as a direction to officials? Also see how the old
(discredited) sanction theory rears its head here.
Is Kelsen a natural lawyer after all?

Is there any point in tracing the grundnorm back logically? Is ignoring the realpolitik not a
problem with the pure theory?
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WEEK VI-VII

Hart’s sophisticated legal positivism: Law as a System of Rules

Hart forms the core of this course. Many of the terms of the debate on 20th century philosophy
were set by Hart. Hart’s The Concept of Law remains one of the most influential texts of legal
philosophy in the English speaking world. Hart responded to his predecessors, Bentham, Austin,
Kelsen, the American Realists and the Scandinavian Realists in the eyes of many convincingly
demolishing their accounts. From that point he constructed his own influential account of law as a
system of rules, socially practiced rules. Students must keep this double ambition of Hart in mind
while approaching the text.

His work can be approached in three distinct but interlocking bits: His criticism of the sovereign/
command theory; His criticism of the account of legal obligation as comprising of either of
predictions (in the fashion of the American Legal Realists) or in feelings of being bound (in the
fashion of the Scandinavian Realists); His rejection of a postulated grundnorm at the helm of a
legal system. In the place of the models he discredited, he proposed a (some would say) sparse
(but no one would deny, elegant) model of the law as a system of rules which were firmly grounded
in social practice. For sake of convenience this can be split into three parts (though you must note
they don’t come neatly distinguished in the text of The Concept of Law)

The Legal System as a System of Rules

The law for Hart was a union of primary and secondary rules. Hart argued that law is the union of
primary and secondary rules. Primary rules impose duties on people to behave in certain ways.
Secondary rules, by contrast, pertain to the primary rules. Primary rules do not themselves settle
which of them meet the criteria of legal validity and thus are to count as primary rules in the first
place, or the solution in the event of a conflict between two or more primary rules. This is where
the secondary rules assume significance. They lend an element of dynamism to the legal system
of which they are a part by permitting it to solve problems that would arise were it to comprise
exclusively of primary rules alone. Hart identifies three types of secondary rules: rule of
recognition, adjudication and change. Rules of recognition provide conclusive methods for
ascertaining which primary rules meet the criteria of legal validity. Rules of change enable and
regulate the process of altering, and repealing primary rules. Rules of adjudication empower some
officials (courts) to make authoritative determinations of departures and violations. These three
types of rule exhaust the realm of secondary rules for Hart.

(Note: While reading Hart’s characterization of the legal system try to think how it might apply to
the Indian legal system)

Rules and Legal Obligation

As far as his account of legal obligation goes, Hart argues that a legal obligation is a statement of
what is required to comply with a rule. He seeks to walk a tight rope between many pitfalls among
them being extreme empiricism (like Bentham, Austin, American Realists); metaphysical
ambition, or profligacy, if you will ( like the natural lawyers); and obscurity ( like Kelsen who
23 | J UR I S P R U D E N C E

struggled to tell exactly what the nature of the legal obligation was).

Rules and Adjudication

Closely intertwined with Hart’s account of obligation and his criticism of American Legal Realism
is his theory of adjudication. His objective here again was to steer the middle path between two
extremes. One extreme saying there is really no law and whatever the judge does is law (the
American Legal Realists) which Hart called the nightmare and the other extreme where all the
judge does is merely apply the law at all times which Hart called the noble dream. Hart argues that
there are times when the judge applies the law. But then there could be gaps in the law, in which
case the judge makes law. This view of Hart’s has become one of the foundational assumptions of
legal positivism until it was challenged by one of his one former students Ronald Dworkin (more
on this later).

Questions to consider:

Is the middle path to legal obligation taken by Hart a sustainable one?

What exactly is the distinction between primary and secondary rules? (Note: Hart seems to
do many things with this distinction)

Could there be valid law without courts?

Is Hart really a Scandinavian Realist with a dose of Kelsen?

(See Alf Ross’ review of The Concept of Law 1961 Yale Law Review )

What is Hart’s account of the normativity (or authority) of the law? He keeps insisting on
its importance, but does he do enough to give an account of the law’s authority?

Is Hart’s account of adjudication a sound one? Is the judge free to make any law
whatsoever? Are there constraints? (Note: This point assumes great significance in the
early Hart/Dworkin debate)

Readings:

H.L.A. Hart The Concept of Law (2nd edition Indian reprint) Chapters 4-7

Further Readings:

H.L.A.Hart, ‘Legal and Moral Obligation’ I.E.Melden ed. Essays in Moral Philosophy (1958)

H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), ch. 4 (‘American Jurisprudence
Through English Eyes: The Nightmare and the Noble Dream’)
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P.M.S. Hacker, ‘Hart’s Philosophy of Law’ in Hacker & Raz (eds.), Law, Morality and Society

(Oxford 1977)

N. Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004)

J. Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, American Journal of Jurisprudence

52 (2007)

Schroder L. J, ‘His Masters Voice: HLA Hart and Lacanian Discourse Theory’ (2007) Law &
Critique
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/lwcrtq18&div=7&id=&page=>
25 | J UR I S P R U D E N C E

WEEK VIII-IX

Ronald Dworkin: The Noble Dream

Ronald Dworkin was arguably Hart’s most influential critic and his debate with the Hartian variety
of legal positivism makes compelling reading, comprising as it does of interesting and innovative
arguments presented in a lucid style. Dworkin was a prolific philosopher and his writing spans five
decades—here we will focus on his writings from the late 70’s and early 80’s (

Taking Rights Seriously in particular) in order to ensure that there is a clear continuity between the
themes discussed in previous weeks. To be sure, we will also see, albeit briefly how this early
work forms the foundation for his later writing particularly Law’s Empire.

Dworkin began (See Model of Rules) by pointing out that Hart is wrong to think that a judge acts
a legislator when the rules run out. For Dworkin (the early Dworkin we are considering here) the
law had no gaps because apart from rules there were also principles. Dworkin said that Hart was
wrong in stating that in cases falling within the gaps, the courts have a discretion to make the law,
so that in such cases, involving judicial discretion, the court is not enforcing a pre-existing
obligation and as such, no party can have a pre-existing right to prevail in a case. He complained
that contrary to what Hart asserts, there is more to a legal system than just rules; there are
principles, policies and other binding legal standards, which operate alongside rules.

Later in Hard Cases (1975) Dworkin explores the notion of this binding morality further by
introducing the concept of the soundest theory of law and to demonstrate with greater precision
the role played by moral and political theory in its construction and application. But his conception
of morality was vastly different from that of the natural lawyers. According to Dworkin, what is
morally required could be discovered by finding out what best fits with the soundest theory of law;
the soundest theory of law being that which justifies all existing legal materials of a legal system,
namely, the institutional history, past laws and judicial decisions of a legal system. Dworkin points
out that the institutional history past laws and decisions create a unique morality of their own and
a judge in a hard case cannot be unmindful of that and he has to follow in the footsteps of the past
for that is precisely what morality requires. There is Dworkin thinks one right answer in hard cases.
Obviously figuring out what morality requires in any given hard case (and finding the one right
answer) is a Herculean task and for this Dworkin introduces the famous fictional judge Hercules?
Later in Law’s Empire (1986) he continues these themes and weaves them a grand theory of
interpretation. The same battle continues, but the weapons change.

Questions to consider

Do judges always only declare the law? Do they never make new law?

Aren’t the principles Dworkin talks about best understood as laws made by someone at
some point? After all they do need a human agency to make them explicit.
26 | J UR I S P R U D E N C E

Is there anything unfair in judges making law? Does it become problematic simply because
such judge made law has to be retroactive? What is the problem with retroactivity in cases
where there is no law and disputes need to be settled one way or another?

Dworkin insists on fairness as being the ground for holding that new judicial decisions
must flow form the past ones. But is there any basis for this? If coins have been flipped in
the past, does it require us to flip coins now?

Does Dworkin manage to discredit Hart’s picture of law as a system of rules with a rule of
recognition on its helm?

Can a citizen armed with Dworkin’s theory know what the law is? Or does he have to be
in possession of the cognitive and intellectual powers of Hercules?

Dworkin is against retroactivity, but does his account really avoid retroactivity?

Do you think there is one right answer in controversial legal cases?

Is everything in the law a matter of interpretation? Are there no easy cases?

. What role should past decisions of legislatures and courts play in identifying the law in
novel cases?

Do you think there is good reason to pay the attention Dworkin does to what judges say
they do? Couldn’t it be the case that the judges are often reluctant to admit that they make
the law?

Readings:

Ronald Dworkin, Taking Rights Seriously (1978) Chapters 2 and 4

Ronald Dworkin, Law’s Empire (1986) Chapters 3 and 7

Stanley Fish, ‘Working on the Chain Gang: Interpretation in the Law and in Literary
Criticism’, (1982) 9 Critical Inquiry 201-216.

N. Stavropoulos, ‘Interpretivist Theories of Law’, in Stanford Encyclopaedia of Philosophy

[online at http://plato.stanford.edu/entries/law-interpretivist/]

Further Reading:

J. Raz, 'Legal Principles and the Limits of Law'; A. Woozley, 'No Right Answer'; J. Mackie, 'The
Third Theory of Law' all in Ronald Dworkin and Contemporary Jurisprudence (1984):
27 | J UR I S P R U D E N C E

Ronald Dworkin, ‘Thirty Years On’, Harvard Law Review 115 (2002), 1655, now published as
ch. 7 of R. Dworkin, Justice in Robes (2006)
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WEEK X

Justice

Justice is one of the aims of our Constitution. Our judges are referred to as Justices; and the courts
are meant to dispense justice. We have a Ministry of Law and Justice. Alleged offenders are not
merely punished but ‘brought to justice’. Few may need convincing that Justice is one of the ends of
the law. But what is Justice? When can a polity be said to be just? This is one of the hardy perennials
of philosophy (legal and political).

Readings:

Michael Sandel, Justice: What’s the Right thing to do? (Farrar Strauss and Giroux) Chapters 3 & 6.

Nigel Simmonds, Central Issues in Jurisprudence (EBC 2003) 39-50

Further Readings:

John Rawls, A Theory of Justice (1971), ch. 1

Robert Nozick, Anarchy, State and Utopia (1974), ch. 7 (Libertarian challenge to Rawls)

Ronald Dworkin, Taking Rights Seriously (1977), ch. 6

J. Gardner, ‘The Virtue of Justice and the Character of Law’, Current Legal Problems 53 (2000)

Wenar, Leif, "John Rawls", The Stanford Encyclopedia of Philosophy (Summer 2021 Edition), Edward N.
Zalta (ed.), URL = https://plato.stanford.edu/archives/sum2021/entries/rawls/

Cornell D, ‘Derrida’s Negotiations as a Technique of Liberation’ (2017) 39 (2) Discourse 195

<https://www.jstor.org/stable/10.13110/discourse.39.2.0195>

Questions to consider

Ø Does Justice require complete equality between parties?

Ø Can a criminal be tortured to retrieve information which will save hundreds of innocent lives?

Ø Is something that ensures the maximum welfare of the maximum number just?
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WEEK XI

Critical Approaches to Law

What we have been studying here in this course has a distinct stamp of the analytical method.
There are other approaches to jurisprudence which begin from a different starting point, use
different tools and seek to emphasize on issues which are glossed over in analytical philosophy.
The Critical Legal Studies movement is among the most influential of such approaches; the other
is Feminist Jurisprudence.

Critical Legal Studies

The Critical Legal Studies movement challenges the received wisdom in legal theory and practice.
Critical legal theorists hold that logic and structure attributed to the law grow out of the power
relationships of the society. The law, according to them, serves to hold in place the interests of the
party or class dominant in its formation and is a set of dogmas, prejudices even, that legitimize the
these deep-rooted injustices of society. As Robert Gordon one of the prominent proponents of CLS
argues, ‘what lies behind the seeming order of legal decisions is a patterned chaos, and the aim of
critical legal scholarship is in part to uncover the patterns’.

The influence of 19th century German thinkers like Karl Marx and Max Weber is visible here.
Also clearly discernible is the influence of American Legal Realism with their fight against
formalism and emphasis on the social underpinnings of the law. Remember, Holmes’s famous
statement, ‘the life of the law is not logic but experience’. The Critical Legal Theorists extend this
line of thought.

Readings:

Robert Gordon, ‘Law and Ideology’ http://www.tikkun.org/nextgen/wp-

content/uploads/2011/12/Law-and-Ideology.pdf

Peter Gabel, ‘Reification in Legal Reasoning’ (1980) Vol. 3 Research in Law and Sociology 25

Roberto Unger, ‘The Spell of Rationalizing Legal Analysis’ in What Should Legal Analysis
Become (1996) 34-41.

Robert Cover, ‘Violence and the Word’, (1986) 95 Yale Law Journal 1601-1629.
30 | J UR I S P R U D E N C E

WEEK XII

Feminist Jurisprudence

“One is not born, but rather becomes, a woman.”

--Simone de Beauvoir, The Second Sex

“A feminist is anyone who recognizes the equality and full humanity of women and men.”
--Gloria Steinem

Feminist jurisprudence and the Critical Legal Studies movement emerge from the same set of
concerns towards the received wisdom in legal theory and practice. The Feminist legal theorists
share with the CLS movement their disquiet about the logic and structure of the law and its
propensity to legitimize illegitimate social hierarchies.

Readings
Catherine Mackinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence’, (1983) 8 Signs 635-658.

Martha Nussbaum, ‘Whether from Reason or Prejudice: Taking Money for Bodily Services’,
(1998) 27 Journal of Legal Studies 693-723.

Larissa Behrendt, ‘Aboriginal Women and the White Lies of the Feminist Movement’ (1993)
Australian Feminist Law Journal 27-44, 34-40.

Further Readings
Rosemary Tong, Feminist Thought: A more comprehensive introduction (2013).
Narayan, Uma, The Project of Feminist Epistemology: Perspectives from a Non-western Feminist.
In McCann and Kim (Eds) Feminist Theory Reader. New York: Routledge (2003).
Ann Scales ‘The Emergence of Feminist Jurisprudence: An Essay’ (1986) 95 Yale Law Journal
1373-1403

Robin West ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1

Anuj Garg v. Hotel Association of India (2008) 3 SCC 1.

State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors. (2013) 9 SCALE
47.

Cornell D, ‘Sexual Difference, the Feminine, and Equivalency: A Critique of MacKinnon's

Toward a FeministTheory of the State’ (1991) Yale Law Journal
<http://hdl.handle.net/20.500.13051/8628>
31 | J UR I S P R U D E N C E

Cossman B, Danielsen D, Haley J, HiggnisT, ‘ Gender, Sexuality, Power: Is Feminist Theory

Enough?’ (2003) 12 (3) Columbia Journal of Gender and Law 601
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/coljgl12&div=43&id=&p>
32 | J UR I S P R U D E N C E

WEEK XIII

The Moral limits of the law

What are the moral limits of the law? What are the kinds of conduct that the law ought to
regulate? Can the law stop you from doing something because it is immoral even if it causes no
harm to another? This question has assumed great urgency in India in the context of the recent
recriminalization of homosexuality by the Supreme Court of India. Here we will discuss the
debate between liberalism and perfectionism. Consider the following propositions:

I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate
against immorality. It is not possible to settle in advance exceptions to the general rule or to define
inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.

— Lord Devlin

‘The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others’…

– John Stuart
Mill

Which of these propositions would you support? This issue also forms the fulcrum for the
famous Hart-Devlin debate. Shades of the debate can also been seen in cases such as Brown
[1993 UK] and Naz Foundation

Readings:

Suresh Kumar Koushal V Naz Foundation [2013]

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070

Naz Foundation V Government of NCT 160 Delhi Law Times 277

J.S. Mill, On Liberty (1859), chs. 1, 4 and 5 (The Harm Principle).

P. Devlin, The Enforcement of Morals (1965) chs. 1, 5, 6 and 7;

H.L.A. Hart, Law, Liberty and Morality (1963)

J. Raz, The Morality of Freedom (1986), chs. 14 and 15

R. Dworkin, ‘Do We Have a Right to Pornography?’ in A Matter of Principle (1985)

33 | J UR I S P R U D E N C E

J. Stanton-Ife, ‘Limits of Law’ (2006), in Stanford Encyclopedia of Philosophy [online at

http://plato.stanford.edu/entries/law-limits/]
34 | J UR I S P R U D E N C E

WEEK XIV

Fundamental Legal Concepts

‘Concepts’ to lawyers are what surgical instruments are to surgeons. You will be introduced to the
conceptual tools a lawyer cannot do without. To appreciate legal relations accurately it would be
useful to begin with Wesley Hohfeld’s typology of jural relations. The layman talks of the law in
terms of ‘rights’ and ‘duties’- as if the two concepts tell us everything that is to be known about
all possible legal relations. However, the lawyer realizes that the concepts of ‘right’ and ‘duty’
obscure more than illuminate; they are vague shorthands for some very specific legal relations. On
reading Hohfeld you will find that jural relations can be classified into:

Claim right
No right
Duty
Privilege
Power

Disability
Immunity
Liability

You will be taught to use Hohfeld’s typology by applying them to legal and factual situations. We
will aim to analyze legal concepts like property, agency, unconstitutionality etc into Hohfeldian
terms. Hohfeld was mainly concerned with private law and hence did not pay much attention to
public law. We will aim to see how Hohfeld’s account applies to public law.

Readings:

W.N. Hohfeld. ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’ 23

(1913) Yale Law Journal 16.

W. Cook ‘Hohfeld's Contribution to the Science of Law" 28(1918) Yale Law Journal 721 13

A.Corbin "Legal Analysis and Terminology", 29 (1919)Yale Law Journal 163.