Rethinking Indian Jurisprudence

An Introduction to the Philosophy of Law

Aakash Singh Rathore, Garima Goswamy

• Publisher: Routledge India
• Year: 2018
• ISBN:
  9781351106634
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

What is law? What is the source of law? What is the law for? How does law differ from other norms or codes of conduct? What is the difference between law and morality? Who is obligated to follow the law and why? What is the difference between moral and legal obligation?

This book addresses these foundational questions about the law in general, and seeks to reorient our thoughts to the specific nature of law in India, the India of today, and the possible India of the future.

This volume:

• 
  
  

• covers relevant foundational elements, concepts and questions of the discipline;
• brings the uniqueness of Indian Philosophy of Law to the fore;
• critically analyzes the major theories of jurisprudence;
• examines legal debates on secularism, rationality, religion, rights and caste politics; and
• presents useful cases and examples, including free speech, equality and reservation, queer law, rape and security, and the ethics of organ donation.

Lucid and accessible, the book will be indispensable to students, teachers and scholars of law, philosophy, politics as well as philosophy of law, sociology of law, legal theory and jurisprudence.

Part I

Elements of the Philosophy of Law

1 Law and morality

Natural law theory and its contribution to legal philosophy

As discussed earlier in the Introduction, legal philosophy is a branch of philosophy whose primary focus is on understanding the nature of law, its fundamental concepts and the criteria that distinguish it from other social phenomena.

Legal philosophy in the modern tradition draws upon a long-standing legacy whose origins can be traced back to the distinction between the natural law governing the natural order, and the laws of the polis, which govern the economy and the arrangement of commerce. The roots of a philosophical reflection on the essence and function of law can be identified in the works of Plato and Aristotle. However, the first systematic reflection on this subject is credited to Thomas Aquinas, who conceived of the law as part of the natural and rational order established by God which could be discovered by means of reason. Aquinas’s ‘Treatise on Law’ constitutes a significant portion of his important theological and philosophical work called the Summa Theologica.¹

From the Greek-Roman world perhaps the most important inheritance legal philosophy gained was the conception of natural law, which is still very much alive in contemporary legal philosophy. John Finnis, one of the most influential defenders of this tradition, argues that the criteria by which a law should be judged right or wrong ‘are prior to any human choices, whether individual or collective, and cannot be repealed, no matter how much they can be violated or ignored’ (Finnis, 2011: 91). In Natural Law and Natural Rights, Finnis claims that the essence of the law consists in the securing of the fulfilment of some basic goods grounded in human nature, and which persons value for their own sake. Among them, Finnis includes knowledge, play, aesthetic experience, sociability, reasonableness and even religion. These goods – along with the principles for their realization – provide the criteria of evaluation of the morality of the law. The history of contemporary legal philosophy can be identified with the first systematic attempt to define the essence of law in contrast to the natural law tradition. This attempt developed into the doctrine called legal positivism, to which we now turn.

The law as a command backed by a sanction: John Austin

In its most general understanding, legal positivism is the doctrine according to which there are no criteria which are prior to or dependent (at least to some extent) on moral or metaphysical conceptions. As Brian Bix puts it, legal validity is ‘disentangled from proposals and prescriptions for which laws should be passed or how legal practice should be maintained or reformed’ (Bix, 2005: 30). The law, according to legal positivists, is rather a social phenomenon whose criteria of validity rest either on the form and hierarchy of the law, or else on the general and stable obedience to social rules. What is valid according to the law is posited by law itself, and any regulatory function of norms does not need to refer to an established natural order. This, remember, is in opposition to the conception of law within the natural law tradition. In a related sense, many legal positivists claim also that the subject of law is the law as it is, not the law as it should be, meaning by this that the scientific study of law should concern the explanation of empirical legal facts, the observable tendency of persons to obey the laws, not the justification of their supposed morality. If there is a sense of ‘should’ or ‘ought’ with respect to the law, it is only in relation to making more cogent, rational and systematic legal regimes, and the supposed injections of morality are irrelevant to the task.

Legal Positivism in this form dates back to the 19th century works by John Austin, a student of the great utilitarian philosopher Jeremy Bentham. In The Province of Jurisprudence Determined (1832), Austin wrote that ‘[t]he existence of law is one thing; its merit or demerit is another… . A law, which actually exists, is a law, though we happen to dislike it’ (Austin, [1832] 1995: 157). On Austin’s general view, every law is a command, issued by a sovereign and backed by a sanction (Austin, [1832] 1995, Lecture I: 21), ‘to whom people have a habit of obedience’ [I: 28].

The law as a union of primary and secondary rules: H.L.A. Hart

Contemporary legal positivists in the Anglo-American tradition have criticized this view as oversimplified. In particular, H.L.A. Hart, in The Concept of Law ([1961] 1994²: 18–78), while recognizing the importance of Austin, has claimed that the command theory could not explain many aspects of even the actual legal system. Hart’s conception of law can be interpreted as an improvement on Austin’s theory. While Austin’s approach was reductive (all laws are commands backed by a sanction), Hart insisted that legal systems include ‘primary rules’, that is norms that impose duties on all citizens, and rules that confer powers, for instance on officials in executing procedures, but also on citizens for creating contracts and wills. These second kind of rules serve to identify, modify and apply the primary rules, and thus are not commands themselves. Hart called them ‘secondary rules’. A key element of Hart’s theory is what he calls the ‘Rule of Recognition’. The Rule of Recognition is a secondary rule whose specific function is to determine whether a primary rule is properly part of the legal system. For Hart, a legal system exists if, in addition to primary and secondary rules, there is a Rule of Recognition accepted by the public officials, and if the valid rules according to the system are also generally obeyed (Hart, [1961] 1994: 116).

Legal Formalism: Hans Kelsen

In addition to the development upon Austin made by H.L.A. Hart, a second strand of later legal positivism is that of Hans Kelsen (1967), perhaps the most important legal philosopher in 20th-century Continental Europe. Kelsen’s work has several points of contact with Hart’s theory, but his philosophical background lies in Immanuel Kant’s transcendental philosophy. Kelsen’s effort is to determine the nature of validity. He does so by exploring the logic of normative reasoning. According to Kelsen, normative inferences are those where a particular injunction or rule is derived from a more general normative premise. Normative premises of these inferential deductions can be of two forms: general propositions or imperatives dictated by an authority. It follows that the validity of a particular norm will depend on the validity of the more general or authoritative norm from which the particular norm can be derived. In this sense, Kelsen has a monothetic view of the law, meaning by this that for him the source of validity of the entire legal system is one fundamental and basic norm, an authorization to officials to impose sanctions. Such a norm does not necessarily need to be posited (perhaps it could not even be asserted), but must be necessarily presupposed in order to conceive of a legal practice as a normative system. Following Kant’s idea of ‘pure’ reason, Kelsen refers to his own position as a ‘pure’ theory of law.

The separation of law and morality

As mentioned earlier, the opposition between natural law theory and legal positivism rests on the role that moral considerations should play in the establishment of the law. Unsurprisingly, all legal positivists deny to a larger or lesser extent, that law and morality are necessarily connected. This claim is known as the thesis about the Separation of Law and Morals. For instance, Hart writes that ‘in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law’ (Hart, 1958: 55; see also Coleman 1982: 141). The importance of this thesis should not be underestimated. Most of the debate in contemporary legal philosophy focuses on whether such a statement should be read in a strict or loose sense. In particular, two views of legal positivism have emerged in relation to the Separation Thesis. One labelled ‘exclusive’ legal positivism claims that the legal validity of a norm can never depend on moral considerations, and therefore any overlap between moral and legal judgements is merely contingent or coincidental. This is the more classical and strict legal positivist position. The second, called ‘inclusive’ positivism, concedes that moral considerations can provide content to legislation, but that such overlap is always partial and does not define the content of the law as a whole.

There are numerous occasions throughout history where laws have been called into question from the point of view of morality. The holocaust during the Second World War offers a particularly striking example. The horrific events that took place during it led to a serious analysis of the concepts of ‘law’ and ‘morality’ and the relationship between the two. The holocaust raised many philosophical issues that became an integral part of a legendary debate in the history of the Philosophy of Law, regarding the separation of what is from what ought to be. Here, ‘what is’ was called law and ‘what ought to be’ was called morality. The school of legal positivism advocated separation. A law would be considered a legal rule if it was made in the manner recognized by the legislative power of the state; it would be valid irrespective of its content. Natural law, however, rejected this viewpoint. The validity of man-made laws depended upon their compatibility with a higher power, which may be God or a moral code.

Gustav Radbruch, who was of Jewish origin, and who was one of the most prominent German philosophers of law of the 20th century, ‘converted’ from being a legal positivist to adhering instead to natural law theory as a consequence of his experiences with the Nazi Regime and the holocaust. This switch, and the reasons behind it, were of decisive significance in the famous debates on the relationship/separation of law and morality called the Hart–Fuller debate.

The Hart–Fuller debate

H.L.A. Hart paved the way for a debate after one of his lectures was published in the Harvard Law Review in 1958. The paper was entitled ‘Positivism and the Separation of Law and Morals’, a position which Hart wished to defend by countering the criticisms of his predecessors. Lon L. Fuller then published ‘Positivism and Fidelity to Law – A reply to Professor Hart’ in the same publication. This led to a series of publications, with Hart’s reply in his book, The Concept of Law, to which Fuller then replied in his book The Morality of Law. Further replies appeared in another article in the Harvard Law Review and another reply was subsequently published in the second revised edition of Fuller’s Morality of Law.

In ‘Positivism and the Separation of Law and Morality’, Hart addresses critiques of Bentham and Austin who, like Hart himself, professed a distinction between law and morals. Hart demarcates the critiques into three categories: the first by those who disregard the distinction by pointing at the inadequacies of what is called the command theory. The command theory considers a command to be law. The second is voiced by those who present what is called the problem of penumbra. This problem refers to that fact that occasionally judges are confronted with the proposition to interpret some words where an established meaning seems obsolete in the given context, and thus they decide what the rule is from what it ought to be. This compromises the distinction that positivists seek to maintain. The third is an emotional appeal to morally bad laws like the ones formulated during the Nazi regime, the correction of which requires the intervention of morals into law.

Hart defends what he understands to be a ‘minimum content theory of natural law’. According to this position, there is space for some degree of morals in law. However, he says that not much should be read into this, for there are repressive laws as well as situations in which ‘what ought to be’ is not necessarily moral. For example, in the case of a poisoner’s decision to choose which poison to use in order to kill, the decision to choose ‘what ought to be used’ is anti-social. He reiterates this example elsewhere too. Hart also mentions that

critics say that this distinction blinds us to the true nature of law and its roots in social life. Some also say that this distinction is misleading and corrupt in practice as it breeds disrespect of the law and may imply weakened resistance to state tyranny or absolutism.

(1958: 594)

Indeed these criticisms and some more have been levied by Fuller.

In ‘Positivism and Fidelity to Law – A Reply to Professor Hart’, Fuller interprets Hart’s paper, critiques some arguments of positivists and some specific arguments of Hart. He appreciates that Hart’s account provides both intellectual clarity and moral integrity. However, to him, it is unclear whether for Hart, the distinction really is or ought to be, to preserve ‘a precious moral ideal’ (Fuller, 1958: 630–31). Fuller calls this ‘fidelity to law’ and he believes Hart too accepts it but denies its logical implications. Throughout the essay he reiterates the importance of attempting to realize the ideal of fidelity to law. According to Fuller, there is internal morality and external morality and law making requires conformity to principles of internal morality, which make laws competent and the legal system respectable. In Fuller’s words:

Law, considered merely as orders, contains, then, its own implicit morality. This morality of order must be respected if we are to create anything that can be called law, even bad law. Law by itself is powerless to bring this morality into existence.³

In ‘Positivism and Fidelity to Law – A Reply to Professor Hart’, he gives a thought provoking illustration to support his proposal.

He introduces a fictional absolutist, selfish and forgetful monarch who does not check if his orders are followed or not. On an odd day, when he does begin to pay attention to his own orders, he gets distracted while phrasing his orders to the effect that his orders are inaudible and ambiguous. So his subjects do not really know what he wants. According to Fuller, in order for his words to be meaningful, the monarch has a responsibility to 1. accept some self restraint so that there is a meaningful connection between his words and actions and 2. accept responsibility of his position instead of issuing another futile command.

Fuller (1958) believes Hart is aware of internal morality too, only he calls it ‘justice in the administration of laws’ (646).

Some arguments within the debate require special mention:

The problem of the core and the penumbra

Hart explained this problem by means of an example. Imagine that there is a law that vehicles are not permitted in a public park (the core of the law). What if a judge is faced with a situation where he or she must decide if a bicycle is permitted in the park – is a bicycle a vehicle within the purview of the law? (The penumbra.) By plain definition, it would seem to be the case. But it is pretty clear that it ought not to be the case. What is the nature of that ought; is it a moral ought? Not according to Hart. Hart believed that the intelligent decision which positivists oppose to mechanical or formal decision is not necessarily identical with decisions defensible on moral grounds. According to Fuller, on the other hand, resolution of the problem of penumbra requires putting oneself in the shoes of the drafters of laws to understand what the rule ought to be in a particular case. As Fuller cannot imagine formulation of law without a moral basis, he interprets some of Hart’s examples where he used ought in a non-moral sense as ‘immoral morality’.

The informer case

One particular case discussed was that of an informer wife who had been punished for having illegally deprived her husband of his freedom. The wife had informed the authorities of her husband’s disrespecting of Hitler, which had carried the death penalty during the Nazi regime. After the war, when the informer wife was tried, she claimed that she was simply adhering to the existent laws of the time. The court’s decision was that the statute under which the wife was claiming protection was contrary to sound conscience and all sense of justice for any decent human being. It was reasoned that she could not be given protection under the previously existent statute. Similar reasoning was followed in some other cases and seemed to hail triumph of the doctrine of natural law over positivi...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• Introduction
• Part I Elements of the Philosophy of Law
• Part II Towards an Indian Philosophy of Law
• Part III Applying legal philosophy to Indian cases
• Conclusion
• Bibliography
• Index