The state of nature is a hypothetical philosophy.

The state of nature changes

from thinker to thinker.

John locke state of nature, is blissful. The reason for this is the glorious
revolution 1688.
 Intro of consti monarch
 World constti was magna cata and bill of rights( it defined the power of
ruler, power right of parliament, power and right of ppl)
 2 tries of government 1690. ( mentioned in LV Curzon)
 Pactum uniois: social contract is to protect inalienable rights. Forming
society
 Pactum subjectionis : appointing government. Giving our powers to the
government to protect our rights and life.
 Here we surrender rights, but only giving of rights.
He believed ppl should be non violent.

 His social contract theory

Locke's theory of government is based on the idea that individuals form a social
contract with one another, where they agree to give up some of their individual
freedoms in exchange for the protection of their natural rights by the government.
However, Locke also believed that individuals have the right to rebel against the
government if it fails to protect their natural rights.

Furthermore, Locke believed that property was a natural right, and that individuals
have the right to acquire and possess property through their own labor. He believed
that individuals could acquire property through homesteading, which involved
mixing their labor with unowned resources to make them their own.

 State of nature: Locke begins with the idea of a "state of nature" in which
individuals exist without government. In this state, individuals have natural
rights to life, liberty, and property. However, because there is no higher
authority to enforce these rights, conflicts may arise and lead to a state of war.
 Social contract: To avoid the state of war and protect their rights, individuals
enter into a social contract with a government. According to Locke, this
contract is formed by the consent of the governed.
 Limited government: Locke believed that the purpose of government was to
protect the natural rights of individuals. Therefore, the power of government
should be limited and subject to the consent of the governed.
 Right to revolution: Locke argued that if a government fails to protect the
natural rights of individuals or becomes tyrannical, the people have a right to
overthrow that government and establish a new one.
 Private property: Locke saw private property as a natural right that existed in
the state of nature. He believed that individuals have the right to acquire and
possess property, and that government should protect this right.

 Pactum uniois

 Locke's theory of the social contract is based on the idea of the "pactum
unionis," or the "agreement of union." This refers to the agreement that
individuals make with one another to come together as a society and establish
a government that will protect their rights.
 Locke believed that the government should be limited in its power and that it
should only exist to serve the people. He argued that if a government
overstepped its bounds and violated the natural rights of its citizens, the
people had the right to overthrow that government and establish a new one.
 Locke's idea of social contract is based on the concept of "Pactum Unionis" or
"Agreement of Union." According to Locke, individuals in the state of nature
are free and equal, and they can do as they please. However, this freedom is
not absolute, as they must follow the laws of nature, which are based on
reason and common sense.
 Locke believes that individuals enter into the social contract voluntarily, and
the purpose of the social contract is to protect their natural rights. In this
contract, individuals give up some of their freedom to a government in
exchange for protection of their rights. The government is created by the
people and is accountable to the people.
 Locke's theory of social contract influenced the American Revolution and the
drafting of the US Constitution. The idea that government derives its authority
from the consent of the governed is a cornerstone of modern democracy. The
concept of natural rights, which includes the right to life, liberty, and property,
is also an important part of modern legal theory.

 Pactum subjectionis

 One key aspect of Locke's social contract theory is the idea of the "Pactum
subjectionis," or the "voluntary submission" of individuals to the authority of
the government. According to Locke, individuals enter into this agreement
willingly and freely in order to secure their rights and ensure that their
property is protected.
  Locke believed that the social contract creates a legitimate government, and
that individuals have a duty to obey the laws and regulations that are created
by that government. However, he also believed that individuals have the right
to resist a government that violates their natural rights, and that they can
withdraw their consent to be governed if the government fails to protect
those rights.
 The contract btw no arbitrary power

Locke argues that the purpose of government is to protect the natural rights of
individuals, which include the right to life, liberty, and property. He believes that
these rights are not granted by the government, but rather are inherent in every
individual.

According to Locke, the government is created by the people for the people, and
therefore the government should only have the power that the people have given it.
He believes that there should be no arbitrary power, and that the government should
be limited by a constitution that outlines its powers and responsibilities.

Furthermore, Locke argues that if the government fails to protect the natural rights
of its citizens, the people have the right to overthrow the government and establish a
new one that will better protect their rights.

The fiduciary nature of govt

 Locke believed that government is a social contract between rulers and

subjects.
 The rulers have a fiduciary duty to act in the best interests of the people they
govern.
 This duty arises from the fact that the people have entrusted the rulers with
their power and authority.
 If the rulers fail to fulfil their fiduciary duty, the people have the right to
overthrow them.
 Locke argued that the primary purpose of government is to protect the
natural rights of individuals, including life, liberty, and property.
 The government must also act within the limits of the law and cannot use its
power arbitrarily.
 Locke believed that government should be limited in its powers and that
individuals should have the right to challenge the government's actions in
court.
  Ryt to property
 Locke believed in the right to property as a fundamental human right. Locke argued
that property is a natural right that arises from an individual's labor and the mixing of
their labor with the resources of nature. In other words, when a person puts in the effort
to improve or cultivate something, they should be able to claim it as their own.
 Locke believed that property rights are necessary for the preservation of life, liberty, and
happiness. He argued that without the ability to own property, people would not be able
to secure their basic needs and would be at the mercy of others.
 According to Locke, property rights are not absolute and can be limited by the principle
of "enough and as good left for others." This means that a person cannot claim all the
resources of nature as their own if it would leave others without enough to sustain
themselves.
 Locke also believed that government has a role to play in protecting property rights. He
argued that government should create and enforce laws that protect individuals' right to
acquire, possess, and dispose of property, and that these laws should be based on the
consent of the governed.
 Finally, Locke argued that property rights are important because they help to promote
economic growth and prosperity. He believed that when individuals are able to own and
control resources, they are more likely to invest in them and use them productively, which
benefits society as a whole.

The labour of his body and the work of his hands are properly his

One of his key beliefs was that a person's labor and the work of their hands are their
own property. In other words, if someone works to create or produce something,
they have a natural right to claim ownership of that thing.

This idea is significant because it lays the foundation for many modern property
rights and legal systems. Locke believed that individuals have a right to accumulate
and own property as long as they acquire it through their own labor and effort.

Locke's theory of property also suggests that the state has a duty to protect an
individual's right to their property. This means that the government should have laws
and systems in place to ensure that people can keep and use their property without
interference from others.

Overall, Locke's ideas about property and labor have had a significant impact on
modern legal theory and continue to influence debates about property rights,
economic policy, and individual liberty.

Rousseau
  Rousseau was an 18th-century philosopher and writer who made significant
contributions to political philosophy and social theory. Rousseau was critical of the
idea of a social contract that gave all power to the state, as he believed it
would lead to the oppression of individual freedom.
 In his famous work "The Social Contract," Rousseau argued that society should
be governed by the general will of the people, rather than the interests of
individuals or groups.
 Rousseau believed that humans were naturally good, but that society
corrupted them by promoting inequality, competition, and materialism.
 He was a strong advocate for education, believing that it was the key to
creating a just and equal society.
 Rousseau's concept of the "noble savage" suggested that humans were
happier and more fulfilled in a state of nature, before the advent of civilization
and the development of social hierarchies.
 He was also critical of private property and the accumulation of wealth, as he
believed it led to inequality and social conflict.

 His state of nature : In the state of nature, human beings were free and equal,
and their basic needs were satisfied through hunting, gathering, and natural
resources. There was no private property or social hierarchy in this state.
 However, life in the state of nature was also characterized by insecurity and
conflict. As there was no centralized authority to enforce laws and settle
disputes, people were constantly in a state of war with each other.
 According to Rousseau, the formation of society and political institutions was
a result of a social contract in which individuals agreed to surrender their
individual freedom and submit to the authority of the state in exchange for
protection and security.
 Rousseau believed that the social contract should be based on the general will
of the people, which represents the common good rather than the interests of
a particular individual or group.
 Rousseau's concept of the state of nature was used to critique existing
political systems and advocate for a more egalitarian and democratic society
based on the principles of liberty, equality, and fraternity.

 His social conduct :

Jean-Jacques Rousseau's social conduct can be summarized as follows:

 General Will: Rousseau believed that the collective will of the people, or the
"General Will," was the true source of political authority. This meant that the
individual's will must be subordinated to the common good.
  Social Contract: Rousseau's famous concept of the "Social Contract" held that
individuals give up some of their natural rights to a governing authority in
exchange for protection and security. He argued that this contract must be
freely entered into by all members of society.
 Equality: Rousseau believed in the natural equality of all human beings, and
saw the inequalities of society as the result of social institutions rather than
inherent differences in people.
 Freedom: Rousseau believed in individual freedom, but saw it as limited by the
needs of the community as a whole.
 Education: Rousseau believed that education was the key to creating a just
and harmonious society. He advocated for a form of education that would
focus on developing the individual's natural abilities and fostering a sense of
community and social responsibility.

 Individual is everywhere in chain : live and then u will be free from the chains of greed:
Rousseau rejected the traditional view of the social contract, which held that
individuals give up some of their natural rights in exchange for protection and
security provided by the state. Instead, he argued that the social contract
should be based on the general will of the people, which represents the
collective good of society as a whole.
 According to Rousseau, the individual's relationship with society is not a
matter of choice, but rather an inevitable consequence of being born into a
social world. He believed that society imposes certain obligations on
individuals, such as following the laws and contributing to the common good.
 Rousseau also emphasized the importance of the individual's relationship with
nature. He believed that humans are naturally good but that society has
corrupted them with greed. Therefore, he argued that individuals should
return to a more natural state, where they can live in harmony with the natural
world.
 In Rousseau's view, the individual is not a static entity, but rather a dynamic
being that is shaped by their environment. He believed that individuals have
the capacity to develop and improve themselves, but that they need the right
conditions to do so. Therefore, he called for a society that promotes individual
freedom and self-realization.
 Overall, Rousseau's perspective on the individual's place in the chain of
relationships reflects his belief in the importance of community and the
natural world. He saw the individual as a crucial component of society, but
also recognized the need for individuals to be free to pursue their own
development and happiness.


Civilisation is responsible for this state of affairs : when u think too much u cause violence.
According to Rousseau, civilization is responsible for the state of affairs where
overthinking leads to violence. This idea suggests that as human beings have
progressed and become more civilized, they have lost touch with their natural state,
which is peaceful and harmonious. The more people think about their desires and
needs, the more they become alienated from each other, leading to conflict and
violence.

Rousseau believed that the development of civilization has created a society where
people are driven by their individual interests rather than the common good. This has
resulted in a state of constant competition and conflict, which has led to the
development of laws and institutions that are designed to regulate and control
human behavior.

However, according to Rousseau, these laws and institutions only serve to perpetuate
the problems they are meant to solve. They are based on a flawed understanding of
human nature and fail to address the underlying causes of violence and conflict.
Instead, Rousseau argued that society needs to return to a more natural state, where
people are guided by their instincts and passions rather than their reason and
intellect.

World wars were started by the west nothing by asia and Africa. Rousseau believed that
wars were often started by the West, while Asia and Africa were not responsible for
such conflicts.

Rousseau's views may have been influenced by his belief that the West was more
focused on individualism and material wealth, while other cultures placed a greater
emphasis on communal values and spiritual fulfillment. Additionally, he may have
been critical of the West's colonialism and imperialism, which often involved the
subjugation of other cultures.

It is important to note that Rousseau lived in the 18th century and did not witness
the World Wars firsthand. While his views may have some validity, there are many
complex factors that contributed to the outbreak of these conflicts, including political
ideologies, economic competition, and the rise of nationalism.


 Law is a general will : ppl give their authority the power to make laws.here he refers to the
direct mode of democracy. Eg: Switzerland

 According to Rousseau, the general will represents the common good or

collective interest of society as a whole, and it should serve as the basis for all
laws and policies. This means that the law should be made with the aim of
 promoting the well-being of the community as a whole, rather than advancing
the interests of any specific group or individual.
 Rousseau argued that the general will is distinct from the will of the majority,
which can sometimes be misguided or self-serving. Instead, the general will
represents a higher, more enlightened form of collective decision-making that
takes into account the long-term interests of the community as a whole.
 In practical terms, Rousseau believed that the general will could be expressed
through democratic institutions that allow all members of society to
participate in the political process. He argued that laws should be made
through a process of collective decision-making that is based on open and
transparent debate, and that allows all members of society to have a say in the
decision-making process.

 General will and soverign :
 Majority vote : general will is the majority will.
 Delegation and surrender : giving and delegating stand for the same thing.

 Delegation refers to the act of giving someone else the power to act on one's behalf.
Rousseau believes that individuals can delegate power to the government, but only as
long as that power is used for the common good. He argues that the social contract
between the government and the people is based on this delegation of power.
 However, Rousseau is also wary of the dangers of delegation. He warns that the
government may become corrupt and use its power for its own benefit rather than for
the benefit of the people. Therefore, he emphasizes the importance of keeping the
government accountable and limiting its power through the use of laws and other
mechanisms.
 Surrender, on the other hand, refers to the act of giving up one's own individual
freedoms for the sake of the common good. Rousseau believes that individuals must
surrender some of their freedoms in order to live in a functioning society. However, he
also believes that this surrender must be voluntary and only for the benefit of the
community as a whole.
 Rousseau's ideas on delegation and surrender have had a significant impact on political
theory and philosophy, particularly in the areas of democracy and individual rights. His
work continues to be studied and debated by scholars today.

 individual is forced to be free: indivisual is free means that the majority indivisual will is
general will. Force is required for the larger intrest. It keep s the majority free. Force is
positive term.

 According to Rousseau, individuals are naturally free, but society's norms and
rules impose constraints that limit their freedom. These constraints are
necessary for social order and stability, but they also create a situation where
individuals are "forced to be free."
 Rousseau believed that in a state of nature, individuals were free to act as they
pleased, but this also created a situation where the strong preyed upon the
weak. To avoid this, individuals came together to form a social contract, which
 created a government to protect them from harm and to enforce rules to
ensure everyone's safety and security.
 However, this social contract also imposed constraints on individual freedom.

 Sovereign state and government
 Rousseau's political theory emphasized the importance of the general will of the
people, the concept of a sovereign state based on a social contract between the
people and the government, and the need for direct democracy in order to ensure
that the state acted in the best interests of all its citizens.

 One of Rousseau's key ideas was the concept of a sovereign state, which he
believed should be based on the collective will of the people rather than the
arbitrary rule of a monarch or aristocracy. In Rousseau's view, the sovereign
state was created through a social contract between the people and the
government, in which the people agreed to give up some of their individual
freedoms in exchange for protection and security provided by the state.
 Rousseau believed that the government should be subordinate to the general
will of the people, and that laws and regulations should be enacted to
promote the common good rather than the interests of a particular group or
class. He argued that the government should be organized in a way that
allowed all citizens to participate in decision-making, and that the state should
exist solely for the benefit of its citizens.

LEGAL POSITIVISM

 What is Positivism?

legal positivism, the validity of a law does not depend on its moral or ethical content,
but rather on whether it has been created and enacted through the proper legal
channels, such as the legislative process or the decisions of a court. Legal positivism
holds that human beings create laws and reflect their social, cultural, and political
values, rather than being based on any objective or universal principles of justice or
morality. Proponents of legal positivism argue that this approach allows for a more
objective and predictable legal system, as judges and legal scholars can focus on
interpreting and applying the law as it is written, rather than trying to discern the
intentions or motivations behind it.

Critics of legal positivism argue that this approach can lead to a rigid and inflexible
legal system, as it prioritizes legal precedent and adherence to established laws over
considerations of justice or morality. They also contend that legal positivism can be
used to justify unjust or oppressive laws, as long as they have been enacted through
the proper legal channels.

 Jeremy Bentham-Luther of Jurisprudence

About: Bentham believed that the primary purpose of law was to promote the greatest
happiness for the greatest number of people. He believed that laws should be based on
reason and empirical evidence rather than tradition or authority. He also argued that laws
should be designed to minimize the harm caused by human behavior rather than to punish
it.

Bentham was also a strong advocate for legal reform. He believed that the law should be
simplified and made more accessible to the general public. He also argued for the abolition
of the death penalty and for the establishment of a comprehensive system of public
education.

Doctrine of utilitarianism:

Jeremy Bentham first formulated the doctrine of utilitarianism in the late 18th
century and was later developed by John Stuart Mill. According to utilitarianism, the
moral worth of an action is determined by its ability to produce the greatest amount
of happiness for the greatest number of people. The ultimate goal of utilitarianism is
to maximize happiness and minimize pain or suffering.

The principle of utility is the central concept of utilitarianism. It states that actions
should be evaluated based on their ability to promote the greatest amount of
happiness for the greatest number of people. This principle is often expressed as "the
greatest happiness principle."

Utilitarianism is based on the belief that human beings are rational and capable of
making choices that will lead to their own happiness. It also assumes that people are
capable of making choices that will benefit others as well. Utilitarianism is a
democratic and egalitarian theory that seeks to promote the common good.

One of the criticisms of utilitarianism is that it can be difficult to measure happiness

or pleasure objectively. It is also criticized for not taking into account the rights of
individuals or minority groups.

Defines virtues/good in terms of utility

According to Bentham, the concept of good or virtue can be defined in terms of utility or
usefulness. Bentham believed that an action or a thing is good or virtuous if it promotes the
greatest amount of happiness for the greatest number of people.
Bentham argued that the concept of utility should be the basis of all moral and legal
decisions. He believed that the purpose of law and morality was to promote the
greatest happiness for the greatest number of people.

Bentham identified two types of pleasures: physical and intellectual. He believed that
intellectual pleasures, such as those derived from reading or learning, were superior
to physical pleasures, such as those derived from food or sex. He also argued that
pleasure and pain were the only two motivators of human behavior.

Bentham believed that the concept of good or virtue could be objectively

determined by measuring the amount of pleasure and pain that resulted from an
action or a thing. He developed a method called the "felicific calculus" to measure
the amount of pleasure and pain that resulted from different actions or things. The
felicific calculus included factors such as intensity, duration, certainty, propinquity,
fecundity, purity, and extent.

According to Bentham, an action or a thing was good or virtuous if it resulted in the

greatest amount of pleasure and the least amount of pain for the greatest number of
people. He believed that the concept of utility should be the basis of all moral and
legal decisions and that the purpose of law and morality was to promote the greatest
happiness for the greatest number of people.

The greatest happiness of greatest number.

Epicurianism: founded by epicurean. Belived in only sensual pleasures: Bentham's theory of

Epicureanism emphasizes the importance of pleasure and happiness as the ultimate goals of
human life, and argues that actions and laws should be evaluated based on their ability to
promote the greatest amount of pleasure and the least amount of pain for society as a
whole.

Chasavaka/karvaka: also sensual pleasure.

The quality of an action dependent upon the around of pleasure to be derived from it

Positivist wanted to remove moratilty from law.

Laws properly so called

LAWS PROPERLY SO CALLED LAWS IMPROPERLY SO CALLED

1. They are commands issued by a 1. Laws of Honor: These are the
sovereign authority. unwritten rules of conduct that are
enforced by social pressure and
reputation rather than by the state.
They are not enforceable by the
courts.
2. They are backed by the threat of 2. Laws of God: These are the rules
punishment if they are not obeyed. that are believed to have been given
by God and are enforced by
 religious authorities. They are not
enforceable by the state.
3. They are general in nature, applying 3. Laws of Fashion: These are the rules
to all individuals in a given that are followed by individuals to
jurisdiction conform to the prevailing norms of
society. They are not enforceable by
the state.
4. They are enforceable by the courts.

3. Criticism of Bentham's Distinction: Some critics have argued that Bentham's

distinction between laws properly so called and improperly so called is not
very clear-cut. For example, some laws of honor may be enforced by the
courts if they have been incorporated into the legal system. Similarly, some
laws of God may be enforceable by the state if they are seen as necessary for
maintaining social order.

Law by metaphor.

Jeremy Bentham's Law can be understood through the metaphor of a "panopticon" -

a prison design where the cells are arranged in a circular pattern around a central
watchtower, allowing the guards to observe all the prisoners at once.

According to Bentham, law should function similarly to the panopticon, constantly

watching over individuals to ensure they are behaving in a way that benefits society
as a whole. This means that the law should be impartial and rational, and should aim
to maximize the happiness and well-being of the greatest number of people.

Bentham believed that individuals should be free to pursue their own interests, as
long as they do not harm others. He called this the principle of utility, which holds
that actions are morally right if they result in the greatest amount of happiness for
the greatest number of people.

Furthermore, Bentham believed that laws should be clear and predictable, so that
individuals can easily understand and comply with them. This allows for a stable and
orderly society, where everyone knows what is expected of them and what the
consequences of their actions will be.

Bentham's Law can be understood as a system that seeks to maximize the happiness and
well-being of society as a whole, while also respecting the individual freedom of its
members. This metaphor of the panopticon helps to illustrate Bentham's belief in the
importance of constant vigilance and rationality in the application of law.
  Imperatives

Jeremy Bentham's imperatives can be summarized as follows:

1. The principle of utility: According to Bentham, the ultimate aim of all human
actions is to achieve happiness or pleasure, and to avoid pain or suffering. He
argued that actions should be evaluated based on their ability to promote the
greatest happiness for the greatest number of people. This principle is also
known as the "greatest happiness principle" or the principle of utility.
2. The principle of legisigns: Bentham believed that laws should be clear, concise,
and understandable to everyone. He developed the concept of "legisigns"
which are symbols that represent laws. He argued that legislatures should use
simple and easy-to-understand language when drafting laws, to ensure that
they can be easily understood and followed by everyone.
3. The principle of sanctions: Bentham believed that laws should be enforced
through sanctions or punishments. He argued that punishments should be
severe enough to deter people from committing crimes, but not so severe
that they would cause unnecessary suffering.
4. The principle of impartiality: Bentham believed that laws should be applied
equally to all people, regardless of their social status or position. He argued
that justice should be blind and impartial, and that the law should not show
favoritism or discrimination towards any particular group.
5. The principle of publicness: Bentham believed that laws should be made for
the benefit of the public, rather than for the benefit of individuals or special
interest groups. He argued that laws should promote the common good and
be based on the needs and interests of society as a whole.

Utilitarian ac Bentham.

The utility is that property in any object where by it tends to produces benefit advantage pleaure
good or happiness to prevent the happening of mischief, pain, evil or unhappiness to the party whos
intrest is considered. It maybe happiness of the community or happiness of the indivsual.

Law for Bentham: Law is an assemblage of signs declarative of a volition(voluntary is free to make
laws) conceived or adopted by the sovereign in a state concerning the conduct to be observed in a
certain case by a certain person or a class of persons who in the case in question are or are supposed
to be subject to his power.

Who is sovereign by Bentham

Any person or assemblage of persons to whose will a whole political community are supposed to be
indisposition to pay obedience and that in preference to the will of anyother person.

Hedonistic/felicific calculus
Hedonistic/felicific calculus is a concept in utilitarian philosophy that attempts to quantify
pleasure and pain in order to determine the best course of action to maximize overall happiness
or well-being. In jurisprudence, this concept is applied to legal decision-making, where judges
weigh the potential pleasure or pain that different legal outcomes would cause in order to
determine the most just outcome.

The idea of felicific calculus was developed by philosopher Jeremy Bentham in the late 18th
century. He believed that human actions were ultimately driven by the pursuit of pleasure and
the avoidance of pain, and that the goal of morality and law should be to maximize the overall
happiness of society. To achieve this, he developed a method for measuring pleasure and pain,
which he called the felicific calculus.

The felicific calculus involves assigning values to different types of pleasure and pain based on
their intensity, duration, certainty, and other factors. By using this calculus, judges can weigh the
potential pleasure or pain that would result from different legal outcomes in order to determine
which outcome would produce the most overall happiness.

While the concept of felicific calculus has been influential in the development of utilitarian
philosophy and legal theory, it has also been criticised for its subjective nature and the difficulty
of accurately quantifying pleasure and pain. Nonetheless, it remains an important tool for judges
and policymakers in weighing the potential consequences of different legal decisions.

Legal realism: The realist school is also known as legal realism, and it emphasizes the
role of social context and empirical observation in understanding the law.

Legal realists argue that the law is not just a set of abstract principles, but is also
shaped by the social, economic, and political context in which it operates. They
believe that judges do not always apply the law in a neutral and objective manner,
but are influenced by their own biases and by the social and political pressures of the
time.

Legal realists also argue that the law is constantly evolving and changing, as social
and economic conditions change. Therefore, legal rules and principles cannot be
understood in isolation from their context, and must be analyzed in light of their
social and historical context.

 John Austin-Naive Empiricist?

 John Austin (1790-1859) was an influential legal philosopher who
developed a positivist theory of law in the 19th century. His ideas about
the nature of law and the role of legal institutions had a significant
impact on the development of legal positivism, which is still an
important school of thought in jurisprudence today.
 Austin's main contribution to legal philosophy was his theory of the
"command theory of law." According to this theory, law is a command
issued by a sovereign, which is backed up by a threat of punishment. In
 other words, the law is not based on natural law or moral principles,
but rather on the authority of a person or institution that has the power
to enforce it.
 Austin argued that the concept of legal obligation is central to
understanding the nature of law. Legal obligation arises when a
command is issued by a sovereign and a subject is obligated to comply
with that command, on pain of punishment. This means that the law is
not based on consent or agreement, but rather on the coercive power
of the sovereign.
 Austin's theory of law was criticized by many legal philosophers, who
argued that it was too narrow and failed to account for the many
different sources of law that exist in society. For example, natural law
theorists argued that the law should be based on moral principles,
rather than the arbitrary commands of a sovereign
 Imperatives

 Imperatives are commands that impose an obligation or duty on the person

to whom they are directed. According to Austin, all laws can be reduced to
imperatives.
 Imperatives can be divided into two types: positive and negative. Positive
imperatives require a person to do something, while negative imperatives
require a person to refrain from doing something.
 Imperatives are issued by a "sovereign" or "lawgiver" who has the power to
enforce them. In the context of legal systems, the sovereign is usually the
government or the state.
 Imperatives are enforced through the threat of punishment. If a person
disobeys an imperative, they may be subject to sanctions such as fines,
imprisonment, or even death.
 Austin believed that the validity of a law depends on its source. A law is valid if
it is issued by a sovereign who has the power to enforce it. However, Austin
did not believe that the moral content of a law was relevant to its validity.
 Austin's theory of imperatives has been criticized for its narrow focus on the
coercive aspect of law. Critics argue that law is not only about commands and
punishment, but also about justice, fairness, and the protection of human
rights.

 Laws Properly so called & Laws Improperly so called

Laws properly so called

LAWS PROPERLY SO CALLED LAWS IMPROPERLY SO CALLED

5. They are commands issued by a 4. Laws of Honor: These are the
sovereign authority. unwritten rules of conduct that are
enforced by social pressure and
reputation rather than by the state.
 They are not enforceable by the
courts.
6. They are backed by the threat of 5. Laws of God: These are the rules
punishment if they are not obeyed. that are believed to have been given
by God and are enforced by
religious authorities. They are not
enforceable by the state.
7. They are general in nature, applying 6. Laws of Fashion: These are the rules
to all individuals in a given that are followed by individuals to
jurisdiction conform to the prevailing norms of
society. They are not enforceable by
the state.
8. They are enforceable by the courts.

 Law and Power

According to Austin, the law is not concerned with morality or justice, but rather with
power and obedience. He believed that the only way to establish a legal system was
through the use of force, and that the law could only be enforced by a sovereign
who had a monopoly on the use of force.

Austin's theory of law and power was based on his understanding of the nature of
human behavior. He believed that humans are motivated by self-interest, and that
the desire to avoid punishment is a powerful incentive for obedience to the law. He
argued that the law should be enforced in a strict and impartial manner, and that the
punishments for breaking the law should be severe enough to deter others from
doing so.

Austin's theory of law and power has been criticized by many legal scholars, who
argue that it fails to take into account the complexities of human behavior and the
role that morality and justice play in the legal system. Nonetheless, his work has been
influential in the development of legal positivism, and his ideas continue to be
debated and discussed by legal scholars today.

 Commands

 One of Austin's key contributions to legal theory is his analysis of the

concept of a command. According to Austin, a command is a
communication from a person or entity with the power to impose
sanctions, directing a particular behavior or action. He believed that
commands are the fundamental building blocks of law, and that the
relationship between commands and obedience is what distinguishes
law from other forms of social control.
 Austin argued that commands are distinct from other forms of
communication, such as requests, advice, or suggestions, because they
carry the threat of punishment for noncompliance. He also
distinguished between positive commands, which direct a particular
action, and negative commands, which prohibit a particular action.
 In addition to his analysis of commands, Austin also made significant
contributions to the theory of sovereignty. He argued that the
sovereign is the ultimate source of all law, and that the sovereign's
commands are always legally binding.

 Sovereign

 Austin argued that the only source of law is the sovereign, who is a
person or group that has the power to command and enforce
obedience. He believed that the sovereign's commands are the
ultimate source of legal authority and that they must be obeyed,
regardless of their content or morality.
 Austin also believed that law consists of a set of rules that prescribe
certain conduct and impose sanctions for noncompliance. These rules
are enforced by the sovereign through a system of courts and
punishments.
 According to Austin, the sovereign has three attributes: absolute power,
indivisibility, and inalienability. Absolute power means that the
sovereign's commands are final and cannot be questioned or overruled
by any other authority. Indivisibility means that the sovereign's power
cannot be shared or divided with any other person or group.
Inalienability means that the sovereign cannot give away or transfer its
power to anyone else.
 Sanctions

 According to Austin, a legal system is a set of rules that are enforced by

the threat of sanctions. Sanctions, in this context, refer to the
punishments or consequences that are imposed on individuals who
break the law. In Austin's view, the key function of law is to provide a
framework for the imposition of sanctions.
 Austin identified three types of sanctions: positive, negative, and mixed.
Positive sanctions are rewards or incentives that are given to individuals
who comply with the law. Negative sanctions are punishments that are
imposed on individuals who break the law. Mixed sanctions are a
combination of both positive and negative sanctions.
 Austin believed that the key to maintaining a stable legal system is the
consistent and predictable application of sanctions. In his view, the
 threat of sanctions must be sufficient to deter individuals from breaking
the law, but the actual imposition of sanctions must also be fair and
consistent in order to maintain the legitimacy of the legal system.

Karl Llewellyn

He defined law as a complex institution. this institution not only has a body of rules based on a large
number of principals but it also uses precedents and ideology its contains many practices,

Jerome frank. Is a legal skeptic

RXf=d

r= rule

f=facts

d= decision

According to Jeremy bantham

The state has to work toward

 Security
 Subsistence
 Equality
 Abundance

HLA Hart

HLA Hart was a prominent legal philosopher who is best known for his work, "The
Concept of Law". Hart's jurisprudential theory is a blend of positivism and natural
law. His theories have significantly contributed to the development of legal
philosophy.

Some of Hart's key ideas include:

1. Separation of Law and Morality: Hart argued that the law and morality are two
separate things, and that the validity of law does not depend on its moral
content. According to Hart, the law is a system of rules that regulate behavior,
and it is possible for a law to be valid even if it is immoral.
2. Rule of Recognition: Hart believed that the rule of recognition is the ultimate
source of validity for the law. This is a social rule that specifies the criteria for
 identifying the primary rules of a legal system, such as the constitution and
legislation. Hart maintained that the rule of recognition is not a legal rule, but
a meta-legal rule that establishes the criteria for legal validity.
3. Primary and Secondary Rules: According to Hart, the law consists of two types
of rules: primary rules and secondary rules. Primary rules are the rules that
regulate behavior, such as criminal laws and property laws. Secondary rules
are the rules that regulate the primary rules, such as rules of interpretation
and rules of change.
4. Legal Positivism: Hart's theory is often described as a form of legal positivism,
which holds that the law is a social construct and that its validity is determined
by social facts. Hart argued that the validity of law depends on its acceptance
by the legal community, and that the law can change over time.

Law as System of Rules:

 H.L.A. Hart was a legal philosopher who argued that law is a system of rules.
According to Hart, legal rules are a type of social rule, and they differ from
other social rules in that they are enforced by the state.
 Hart's theory is known as the "rule of recognition" theory. According to this
theory, a legal system is defined by a "rule of recognition," which is a social
rule that specifies the criteria for identifying valid legal rules.
 Hart argued that legal rules are not necessarily moral rules. While some legal
rules may be based on moral principles, such as the prohibition on murder,
other legal rules may be based on social or political considerations, such as
the requirement to pay taxes.

Social Rules : social rules are a type of conventional rule that governs behavior in
society. These rules are not laws but are still considered obligatory and carry with
them a sense of social pressure. Hart identified two types of social rules: primary
rules and secondary rules. Hart believed that social rules were an essential aspect of
human society and that they provided a framework for social cooperation and
coordination. He also believed that the legitimacy of legal systems depended on
their adherence to these social rules and that legal systems that failed to follow these
rules could not claim to be legitimate.

Secondary Rules:
Hart also distinguished between primary and secondary rules. Primary rules are the basic
rules of conduct, such as the prohibition on murder or theft. Secondary rules are rules that
specify how primary rules are to be created, changed, or enforced. For example, the rule of
recognition is a secondary rule that specifies how legal rules are to be identified.
The Rule of Recognition: Rules of recognition specify the criteria that must be met
for a rule to be considered a valid law. These criteria might include being passed by a
certain legislative body or being recognized by a certain court. The Rule of
Recognition is not a single rule but a complex set of rules, customs, and practices
that are accepted by the legal community as authoritative in identifying and creating
legal norms. It is the ultimate rule that determines the validity of all other rules in a
legal system. The Rule of Recognition is a social practice that evolves over time and is
subject to change. It is created and maintained by legal officials, such as judges,
lawyers, and legislators, who have the authority to make and interpret legal norms.
The Rule of Recognition is not a moral or ethical principle but a practical rule that
serves the needs of a legal system.

Hart distinguishes between two types of rules in a legal system: primary rules and
secondary rules.

Primary rules are the substantive rules that regulate conduct, such as criminal and
civil laws.

Secondary rules are the rules that provide a framework for the creation, modification,
and enforcement of primary rules. The Rule of Recognition is a secondary rule that
provides the framework for the identification and creation of primary rules.

The Existence of Legal System:

 Hart believed that the existence of a legal system is not simply a matter of the
existence of legal rules, but rather the presence of a specific type of social rule.
He called these rules "primary rules" and "secondary rules".
 Primary rules are the basic rules of conduct that govern behavior, such as "do
not steal" or "do not murder". These rules create legal obligations and are
enforced through sanctions or punishments.
 Secondary rules, on the other hand, are rules that govern the creation,
modification, and application of primary rules. They include rules that
establish who has the authority to create and enforce laws, and how legal
disputes should be resolved.
 According to Hart, the existence of a legal system requires not only the
presence of primary rules but also a system of secondary rules that gives
those primary rules their legal force.
 Hart argued that legal systems are not only made up of formal laws and
institutions, but also informal practices and conventions that are recognized as
legally significant by members of the community.
 He also believed that legal systems have an internal morality, meaning that
the rules and practices of the legal system are based on shared values and
principles that are recognized by the community.
  Hart rejected the idea that the existence of a legal system can be reduced to
the commands of a sovereign authority. Instead, he believed that legal
systems are the product of a complex interplay between social practices,
shared values, and institutional arrangements.

The “Internal Point of View” :

 One of Hart's most influential concepts is the "internal point of view," which
he developed in his book "The Concept of Law" (1961).
 According to Hart, the internal point of view is the perspective of a participant
in a social practice who accepts the rules of that practice as binding.
 In the context of law, the internal point of view is the perspective of someone
who accepts the legal system and its rules as legitimate and authoritative.
 Hart argued that the internal point of view is necessary for understanding the
nature of law and legal systems.
 The internal point of view is different from an external point of view, which is
the perspective of an outsider who does not accept the rules of the practice or
system in question.
 For Hart, the internal point of view is not just a psychological or subjective
state, but a normative or objective standard for evaluating the legitimacy of
legal systems.
 Hart believed that the internal point of view provides a basis for legal
obligation and moral responsibility, since it involves a commitment to follow
the rules of the legal system even when they conflict with one's personal
preferences or interests.
 Some critics of Hart's theory have argued that the internal point of view is not
a sufficient basis for legal obligation or moral responsibility, since it does not
address issues of power, coercion, or injustice in the legal system.

The Judicial Function:

 Hart's view of the judicial function emphasizes the importance of judicial discretion and
moral reasoning in interpreting and applying the law. He believed that judges must strike
a balance between respecting the values and principles underlying the legal system and
adapting the law to changing circumstances and social values.
 According to Hart, the judicial function involves the interpretation and
application of legal rules to specific cases. The judge's role is to determine the
meaning of the law and apply it to the facts of the case at hand.
 Hart believed that judges should interpret the law in a way that is consistent
with the values and principles underlying the legal system. This requires
judges to engage in a process of moral reasoning to determine the best
interpretation of the law.
 However, Hart also recognized that the law is often unclear or ambiguous, and
that judges must use their own discretion in applying the law to specific cases.
 This discretion is necessary to ensure that the law is flexible enough to adapt
to changing circumstances.
 Hart rejected the idea that judges should simply apply the law mechanically or
follow the literal meaning of the words in the law. Instead, he argued that
judges must take into account the social and political context in which the law
is being applied, as well as the overall purpose of the legal system.
 Hart also believed that judges must be guided by a set of moral principles,
such as fairness and justice, in their interpretation and application of the law.
These principles are not fixed or absolute, but rather depend on the specific
circumstances of each case.


The minimum content of NL (natural law): it is decided on the basis of facts and cirumanstances

According to Hart, the minimum content of natural law is the requirement that any
legal system must have rules that regulate the use of coercive force by those in
power. In other words, legal systems must have rules that prohibit the use of force
against individuals except in certain circumstances, such as in self-defense or in the
defense of others.

Hart believed that this minimum content of natural law was necessary for any legal
system to be considered legitimate. Without such rules, a legal system would be
arbitrary and unjust, as those in power could use force against individuals without
any justification.

However, Hart did not believe that there were any other moral principles that were
necessary for a legal system to be legitimate. He argued that the content of a legal
system was ultimately determined by the social practices and conventions of a
particular community, rather than by any objective moral principles.

Human vulnerability: to protect the vulnerable people of society.

According to Hart, human vulnerability is a fundamental aspect of our human condition. It

refers to our susceptibility to physical and emotional harm, and our dependence on others
for support and care.

legal and moral systems should be designed to protect and enhance our capacity to live
fulfilling lives, despite our vulnerability. Legal and moral systems should provide healthcare,
social welfare, and other forms of support to help us cope with illness, injury, and death. He
believes that we should consider how our decisions will affect the vulnerable members of
society and take steps to protect their interests. This requires empathy, compassion, and a
willingness to put the needs of others before our own.

Limited alltrusims :
  Hart argued that while the existence and content of the law can be
determined by reference to social facts, there are limits to what legal rules can
achieve. Some legal rules may be so morally abhorrent or offensive that they
cannot be considered valid laws, even if they are formally recognized as such.
 Hart also introduced the concept of "all-things-considered" judgments, which
he argued were necessary for judges to make in cases where the law is
uncertain or ambiguous. These judgments involve weighing various factors,
including moral considerations, to arrive at a decision that is not only legally
correct but also morally justifiable.
 According to Hart, all-things-considered judgments require judges to exercise
discretion and interpret legal rules in light of their underlying moral principles.
This means that judges cannot simply apply the law mechanically but must
engage in a process of interpretation and evaluation to determine what the
law requires in a particular case.
 Hart's theory of limited legal positivism has been influential in contemporary
legal philosophy, as it seeks to reconcile the objectivity and predictability of
legal rules with the need for moral considerations in the law.

Mention how sir was interning in the HC of karnatka and then a boy came says he commited the
crime but it wasn’t him and the judge let him off.

Limited resources :

Hart believes that law plays an essential role in managing this competition for resources. Law
is a system of rules and principles that society uses to allocate resources fairly and efficiently.
Without law, resources would be allocated arbitrarily or through violence, which would be
detrimental to social and economic stability. legal rules must be crafted with the
understanding that resources are scarce and that choices must be made about how they are
distributed. For example, laws may establish property rights to ensure that resources are
allocated to those who can use them most efficiently.

THE CHALLENGE OF managing limited resources is that people often have conflicting
interests and goals. This can create tension and conflict within society. Hart suggests that law
can help to mediate these conflicts by providing a neutral framework for resolving disputes.
When disputes arise over the allocation of resources, the legal system can provide a fair and
transparent process for resolving them.

 In Hart's view, the legal system must also be flexible enough to adapt to
changes in resource availability and social conditions. As technology advances
and new resources become available, the legal system must evolve to ensure
that these resources are allocated fairly and efficiently. This means that legal
rules must be subject to ongoing review and reform to ensure that they
remain relevant and effective.
Hussinara Khatoon

Art 38 39 39 A

Hans Kelsen 1881-1973

 Kelsen rejected the natural law tradition, which holds that law is based on
morality or a higher authority. He argued that law is a human creation and
that there is no necessary connection between law and morality.
 Kelsen's theory of law is based on the concept of the "basic norm" or
"Grundnorm," which is the fundamental principle that underlies a legal system.
The basic norm is not itself a legal rule, but rather a presupposition that all
legal rules derive their authority from it.
 Kelsen's "pure theory of law" is concerned with the formal structure of legal
systems, rather than their content. He believed that the content of law is
irrelevant to its validity, and that the only important question is whether a
legal rule has been properly created and applied according to the procedures
established by the legal system.
 According to Kelsen, the law can only be understood as a hierarchical system
of norms. The basic norm is at the top of the hierarchy, followed by the
constitution, then statutory law, and finally individual cases. Each norm in the
hierarchy is derived from and dependent upon the norm above it.

Unadulterated Law :

According to Kelsen, the law is a pure, abstract, and self-contained system of norms that are
not influenced by any external factors.

1. Law is a self-contained system: According to Kelsen, the law is a self-contained

system of norms that is not influenced by any external factors. The law is a
closed system that is independent of any social or political considerations.
2. Law is a hierarchy of norms: The legal system is made up of a hierarchy of
norms, with each norm deriving its validity from a higher norm. The highest
norm in the legal system is the Basic Norm, which provides the foundation for
all other norms.
3. Law is pure: Kelsen believed that the law is a pure concept that is not
influenced by any external factors. The law is an abstract concept that exists
independently of any particular legal system or society.
4. Law is unadulterated: Kelsen's theory of Unadulterated Law argues that the
law must be free from any external influence, such as moral or political
considerations. The law is a self-contained system that is not influenced by
any external factors.
 5. Law is normative: Kelsen believed that the law is a normative concept,
meaning that it prescribes what people ought to do. The law is not a
descriptive concept that describes what people actually do.

▪ A Hierarchy of Norms : covered above

▪ The Grundnorm

▪ Validity, Efficacy and Revolution

▪ Democracy and the Rule of Law

Historical school:

Historical school of jurisprudence is a legal theory that emphasizes the importance of

understanding the historical and cultural context of legal systems. This school of
thought developed in the 19th century in Germany and was primarily associated with
the works of Friedrich Carl von Savigny.

According to the historical school, the law is not an abstract set of rules that exist
independent of human society. Rather, it is shaped by historical and cultural factors,
including the values, customs, and traditions of a particular society. Therefore, legal
systems must be studied in their historical context to be fully understood and
properly applied.

The historical school also emphasized the importance of a "volksgeist," or the spirit
of the people, in shaping legal systems. This concept holds that the unique
characteristics of a particular people, including their language, culture, and history,
influence the development of their legal system.

FKV Savigny:
Law of national character

 According to Savigny, a nation's law is not simply a set of rules that are
created and enforced by the state. Instead, it is an expression of the people's
collective will and reflects their values, customs, and traditions.
 The Law of National Character is based on the idea that law evolves over time
as a result of social, cultural, and historical factors. It is not something that can
be created artificially or imposed from the outside.
  Savigny believed that the legal system of a nation should be studied in its own
context, without reference to other legal systems. He argued that each legal
system is unique and cannot be fully understood without taking into account
its historical and cultural background.
 The Law of National Character has had a significant impact on legal
philosophy and jurisprudence. It has been used to explain the differences
between legal systems and to argue against attempts to create a universal
system of law.

Peoples spirit

 According to Savigny, the People's Spirit is the collective consciousness and

culture of a community, which includes its language, customs, traditions, and
history. The People's Spirit shapes the legal system of that community and
gives it its unique character.
 Savigny believed that law is not a product of individual reason or will, but
rather an expression of the People's Spirit. The law, therefore, is not
something that can be created or changed by individual legislators or judges,
but rather evolves organically over time in response to the changing needs
and values of the community.
 Savigny argued that the People's Spirit is reflected in the legal system of a
community through its customary law (Gewohnheitsrecht), which is the
unwritten law that emerges from the practices and traditions of the
community.

Internal silently operating

 The law, according to Savigny, is an "internal silently operating" force that is

constantly shaping and reshaping society. This means that the law is not
something that is consciously created by individuals or imposed on society by
an external authority, but rather something that emerges naturally from the
customs, traditions, and values of the society itself.
 Savigny believed that the law was a reflection of the collective will of the
people, and that it was constantly evolving and adapting to meet the needs of
society. He believed that the law was not static, but rather dynamic and fluid,
and that it was constantly being shaped and reshaped by the society that it
governed.
 Savigny's concept of "internal silently operating" law was in contrast to the
view of law as a set of rules imposed by an external authority. He believed that
the law was not something that could be created or changed by an individual
or group, but rather something that emerged naturally from the society as a
whole.
 Legislation of susidariiy importance

 According to Savigny, the principle of subsidiarity is an important aspect of

legal systems. This principle holds that decisions should be made at the lowest
level possible, and that higher levels of authority should only intervene when
necessary.
 Savigny believed that the principle of subsidiarity was particularly important
for the development of legal systems. By allowing decisions to be made at the
local level, legal systems can be more responsive to the needs of the people
they serve.
 In Savigny's view, the principle of subsidiarity should also be applied to the
development of legal codes. He argued that legal codes should be based on
the customs and traditions of the people they serve, rather than being
imposed from above.
 According to Savigny, the legislation of subsidiarity importance involves
recognizing the autonomy of local communities and allowing them to make
decisions for themselves. This can help to create a more responsive and
democratic legal system.

Law shall reflect need of the people

Savigny's theory of the Volksgeist, or "spirit of the people," is central to his approach to law. He
believed that the law should be based on the unique historical and cultural traditions of a
particular society, and that it should reflect the shared values and beliefs of the people.

Savigny's approach to law has had a significant impact on legal theory and practice, both in
Germany and around the world. His emphasis on the importance of historical and cultural context
in the development of law has helped to shape the way that legal scholars and practitioners think
about the law.

In summary, FKV Savigny believed that law should reflect the needs of the people and that it
should be based on their historical and cultural traditions. His theory of the Volksgeist has had a
lasting impact on legal theory and practice, emphasizing the importance of context in the
development of law.

 Sir Henry Maine

 Maine's ideas about the evolution of law were influenced by his study
of ancient Roman law and his observations of the legal systems of
India, where he had spent much of his childhood.
 Maine believed that the development of law was closely linked to the
development of civilization. He argued that as societies became more
complex, their legal systems became more formalized and
professionalized.
  Maine was a critic of legal formalism, the idea that law is a self-
contained system of rules and principles that can be applied in a
neutral and objective manner. He believed that law was deeply rooted
in social and cultural norms and that legal rules could not be
understood in isolation from their social context.
 Maine's work had a profound impact on the development of legal
anthropology, the study of law in its cultural context. His ideas about
the evolution of law helped to shift the focus of legal scholarship from
a narrow study of legal rules to a broader consideration of the social
and historical context in which those rules developed.

Stationary society : he gave 6 statges

Stage of commands:

Stage of customs: they were started a long time ago and they contd it making it a custom.

Stage of codes: no change in this, but everthing is written as writing was just invented. The society
which stops here is called a stanggant state or society.

Stage of leal fictions: we presumen and assume there is such a thing.needed for convince.

Stage of equity : not following the law through justice equality and good conscious.

Stage of legislation:

Prospective society

Movement from status to contract

There are certain customs that are followed by the mandate of religion. There are some reilgous
mandates that people follow. Between these two lie the laws. People do not want to change these
laws.

SOCIOLOGICAL SCHOOL

Roscoc Pund

 Law as social engineering : Sociological school is called the right wing of functional school.
American realism is the left wing of the functional school American realism tells that the
intrpreation by the court is the final law. The legislature executor judge and jurist are the
ones who will balance the intrests of the people.

 Theory of social interests : law should work on the diff interests. These interests should be
balanced. he legislature executor judge and jurist are the ones who will balance the intrests
of the people. You must know what is a
 o rule : which is given to be applied to a particular a situation with a consequence
o principal : a fundamental truth is called on the princiapal. Rules are based on the
pronciapls.
o concept and: ideas we get from different jurist. They look at all types of laws and
come up with a good idea to manage the interests of the people. Jurists aree
important for him. He believes the other three are all influenced by the jurists.
Jurists can shape the thinking of the people and their future.
o Standard : plays an important role in balcing intrest. The standard lays the yardstic
that helps ppl balcne their specific intrests.
 What Is an interest ? : defined as an aspiration, expectation, want and demand of individual
or grp.
 Classification if interests :
o individual : as individual there are lot of intrests some are
 personal freedom of speech and expression, right to prvt defense for safety,
property if a personal intrests.
 domestic and : as a family what aspirations you have.
 Substance: property for an indivusal. Movable and immovable property.
o public and : this si broader like individual is concering just a sate of india or a family
in a society in india. But public is like the whle national intrests. Like economy, food,
safety
o social: subsect of public intrest. Smaller thn public intrest, concerns a particular
community
 Conflict of interests : sec 144 crpc doesn’t balnce the intrest of people. But the mandate of
peaceful protest is good.
 Balancing of interests : legislature executor judge and jurist work to manage the intrests of
the individual intrest public intrest and the social intrest. They reconcile their differences for
the work they have to perform the work in such a way that there is less friction and more
efficacy.
 Jural Postulates ( recognition of new intrest) : when we see an intrsts that is in conflict with
other intrest then we take away the others intrests. Eg politician.

Anuradha Bhashina 2020 on sec 144 read again

Sociological school is called the right wing of functional school

REALISM

Legal realism is a theory or movement in legal philosophy that emerged in the United States in
the early 20th century. It holds that law is not simply a set of rules that are deduced from abstract
legal principles, but is instead shaped by a variety of social, economic, and political factors. Legal
realists argue that judges and other legal decision-makers cannot make purely objective
decisions, but are influenced by their own values and experiences, as well as by the social and
political context in which they operate.

Legal realism emphasizes the importance of understanding the practical effects of legal decisions
on society, rather than focusing solely on abstract legal principles or rules. Legal realists also
believe that law should be viewed as a dynamic and evolving system, shaped by changing social
and economic conditions and subject to constant reinterpretation.
Legal realism has been influential in many areas of legal scholarship, including constitutional law,
contract law, and tort law. However, it has also been criticized by some who argue that it
undermines the authority and predictability of the legal system.

What is American Realism?

• American realism is made up of analytical positivism and sociological approaches. It is

broken down as:

• Considering the law as it is, and

• The law is the result of several elements

• Not a school of thought. But a movement.

• According to Friedman:

• “Realist school prefers to evaluate any part of the law in terms of its effects.”

• According to Roscoe Pound:

• “Realism is the accurate recording of things as they are, as contrasted with things as
they are imagined to be or wished to be or as one feels they ought to be.”

Characteristics

• The law must be in flux and should be judicially created.

• Law is a means to meet social relations. There should be a thorough analysis of the reason;
its impact and it must be judged from both perspectives.

• Societal changes are rapid as compared to the law. Therefore, there is a continuous
requirement of examination of law to meet existing social issues.

• Law is uncertain, and the predictability feature depends on the facts laid before the court to
make decisions.

• The formal and conceptual approaches to the law are not considered at all. This is because
the court should decide a case based only on logical grounds and not on an emotive basis.

• The realism movement has more emphasis on the psychological approach of law. It is
connected with human behavior.

• Realism states that legal terms affect the uncertainty of law and opposes it. So, it does not
support legal terminology.

• The legal case studies were analyzed from the judge’s justification to the decision already
made and the motivation behind every decision.

• The different outcomes of the courts within a similar framework are studied under the
realism movement. These results are studied as per the facts of a case.
“The Law”

• "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I
mean by the law.”

• The law is nothing more than its practical effects, and those are affected on others by the
courts.

• Holmes argues for this position on an empirical basis rather than on conceptual grounds, as
Hart, Austin, and the Natural Lawyers defended their positions.

• He sought to understand both how law shows up in the experience of those who it affects
and how judges actually arrived at their decisions.