JURISPRUDENCE

25.07.2023

 Problem of circularity – The problem is that at the primary rule level, law is coming back
to violence/power – violence is what is ultimately creating law – consent here is lost at
the end.
 Such primary rules may be wholly customary in origin; there may be no centrally
organized system of punishment for breach of the rules; the social pressure may take
only the form of a general diffused hostile or critical reaction which may stop short
of physical sanctions.
 Berth Milton
 Pornographer by profession – Swedish National.
 Swedish SC and constitution – allow freedom of expression and interpreted by their
SC as to include pornography and child pornography also if child pornography is not
in the form of explicit images but in the form of cartoon images.
 Milton’s father and him both in pornography business – not child cartoon – hardcore.
 Many million-dollar worth – earned through this.
 Saeed Malekpour
 Software engineer from Iran. Job got in Canada and as a part of his job, he developed
a pornographic website.
 Iranian constitution – allows freedom of speech and expression – includes freedom of
press – but that is subject to certain restrictions – restriction includes, nothing in the
form of pornography or derogating Islam can be allowed. If you do anything in
restriction, your conduct is punishable, can go up to death penalty.
 His grandfather was seriously ill, and he had to come to Iran to meet his grandfather –
when he landed, he was arrested for violating above rule and was given death penalty.
Lot of international pressure on Iran to release him, Iran refused to release, his
sentence was converted to Life sentence.
 Take away from these two cases.
 To answer the question, is it a lawful outcome, it needs to be examined if the outcome
is in accordance with law or not. The relevant law is the domestic law of the
country/person.
 For Berth Milton – Swedish law is relevant, and for Saeed Malekpour – Iranian.
 So if their respective domestic laws give these outcomes, then it is lawful.
 But here it needs to be examined, if the laws on the basis of which the decision was
arrived at itself are valid in the first place.
 The laws would be valid if they are in conformity with the respective
constitutions.
 The laws which were used here are valid, because they are valid in accordance
with the rule of recognition. And since the outcomes were in accordance with the
laws, they are valid.
 Now the next question is, how is the rule of recognition valid?
 Should we go into morality, or whether society considers it valid ?
 Validity of the rule of recognition, is independent of the rule of recognition. The
constitution (rule of recognition) is independent of the content of the constitution.
  Hart says, no such question can arise as to the validity of the very rule of
recognition which provides the criteria ; it can neither be valid, nor invalid but is
simple accepted as appropriate for use in its way – Its existence is a matter of
fact.
 Hart’s rule of recognition is similar to Austin’s sovereign. It exists and
anything that draws validity from the rule of recognition is valid. Even if it
allows immorality, it is valid. Do not question why the rule of recognition is
valid.
 Constitution is the ultimate touchstone of laws in every society.
 Both Hart and Austin suggest that to check validity of the constitution, you
cannot use morality. Immoral constitutions are also valid constitutions.

 What will a judge do?

 Few lines missed.
 When you are appointed as a judge, you take an oath to protect the constitution – Now
when thre is no constitution that you were appointed under, then do you have the
moral right to even be a judge anymore ?
 When the political system itself fully changes ?
 Ian Douglas Smith
 Present day Zimbabwe – that time Rhodesia – Birtish colony.
 Indepdence that India got was consensual – bilateral – proof is IIA, 1947.
 In Rhodesia however, different – Ian was appointed by British as Deputy PM
initially and then PM of Rhodesia but remained a colony.
 11.11.1965 – Ian unilaterally declared independence (UDI) – constution made –
Starts with same language as Indian.
 Through the years – international community also recognized it as independent –
Zimbabwe.
 Immediately after this, somebody approached the SC – the new constitution is to
be declared as invalid.
 1968 – 3 years after UDI – case reg UDI – declare it as invalid – the court said
that it is too early to decide hwteher the new regime is valid or invalid – it is to be
noted that this judgement was irrespective of the nature of the change – the court
quoted Hans Kelsen with approval verbatim – the whole ledgal order has changed
and since the new one is in totality effective, it is legitimate. Did not enter into the
moral quality of the regime.
 You don’t have to enter into the qualitative analysis of the document.
 King Freddie being overthrown by Obote – Uganda
 1966
 Pakistan - Ayub Khan
 1958 2 Pakistan SCR 180
 IN both these cases SC based on kelsen’s model declared it valid – they did not look
into morality – despite it being military regime – it is valid.
 Since system is overall effective, it is valid. No where, kelsen is bothered about the
quality of the system.
 Loyal Judge vs. Legal Scientist Judge
  Loyal judge – remains loyal to the constitution under which he took oath.
 As soon as that constitution goes, you will have to resign and go somewhere else.
 If you say no no I will remain loyal, wont resign but will not accept new one –
then you will either be arrested or killed.
 Kelsen does not want you tot be a loyal judge. He wants you to be a legal
scientist.
 He wants you to not be loyal to any legal system or ideology – you have to
indifferent to the ideology of the system – the office of the judge should be like a
legal scientist. Like a scientist.
 Few lines missed.

22.08.2023 – Tuesday
 Starting point of Fuller – It is possible to bring law and morality together.
 Positvists – important to keep law and morality separate in order to evaluate law.
 Fuller – Morality is always a part.
 Recap
 Morality is related with law in two ways
 External – aim – what we want to achieve may be moral or immoral.
 Internal – laws maybe moral or immoral - irrespective of the aim.
 8 deciderata – rule of law conditions. If not complied – duty of legislator/state
has not been fulfilled. – Morality of duty. – Legislator should comply with the
conditions.
 How much compliance is needed?
 Total failure in one direction.
 Some failure – even this is failure of legislator.
 But again subjective question as to how much failure is failure?
 Complilance of these conditions also depends on nature of legislation, area
about with the legislation is made. Some can be retrospective, some can be
against these principles – so how much compliance will be there also
depends on area of lw. Eg : criminal law - very very high level of
compliance.
 Aspiraion of the society should be to have 100% compliance – but every
society is imperfect – not ideal – but if we know the ideal we will know where
each stands in respect of other – who is complying in what sense.
 Two questions
 Is there law on dowry in India?
 Does India have “rule of law”?
 To answer these two questions, in positivist theory (Kelsen),
 First question – if there is a norm, and the norm derives validity from a higher
norm, then it is a valid law.
 Look at whether there is some norm that talks about dowry. If the norm
exists, then yes, India has law on dowry.
 Second question – can we say because Kelsen says no morality, so no rule of
law?
  We have law, but violations are taking place, state is no enforcing it – so
should we conclude that there is no rule of law? As we are not ruled by the
law?
 You have to look at whether the normative structure is effective or not. If
we have an effective normative structure, there is a rule of law. But there is
a catch here. Suppose there is a society where there are not enough rules to
ensure equality of women – Such as Saudi Arabia – women on not equal
footing – if you start searching for legislations which provide for equality,
there will be nor norm indicating these things – but if you look at the
entirety of the structure, it will be effective. These societies do not protect
their women, marginalize communities but there is rule of law. There is
rule of law, but there is violation of rights of women, rights of minority. So
by Kelsen, there is rule of law, but no equal protection.
 Now answering the questions using Fuller.
 First question – simple answer – yes – to check if there is rule.
 Second question – don’t look at just norms, look at something inherent in the
norm.

 Fuller will look at the existence of certain prnciples in the normative structure.
 In societies like KSA, there is no 8 deciderata – there is law, but no rule of
law. Rule if law is not just the presence of legals tructure, the legal structure
must be in compliance with some standards which are the 8 deciderata.
 If the 8 conditions are fulfilled – it shows that citizens are treated by the state with respect
– citizens are rational enough to make decisions. If they violate the law, they will face the
condiitons. Rules are told to the citizens. They will ensure 8 deciderata. If the 8 deciderata
are present in the system, then the below conditions will be absent in the system.


 (right side conditions will be absent in the system).

 Less of left, more of right ; more of left, less of right.
 If the right conditions exist, the state is treating the citizens as lesser. If right side
conditions are not there, you are treated with respect. Does not mean that no death
penalty or no punishment, just means that these things will be regulated by law. So
morality condition is that state is treating citizens with respect – if ROL conditions are
there, then there is morality condition.


 Example of 3 - for criminal law, prospectivity is very important.

 4 – if you violate one, you tend to violate the other.
 5–
 6 – you are considered rational, you can make your choices – state will only tell
you the boundaries.
 If we violate rule of law conditions, then no laws.
 Midterm syllabus – whatever covered till today.