COURSE MANUAL

Name of the Core Course:

Jurisprudence

Course Code:

Fall 2025
(AY 2025-26)

Course Convener:
Sandeep Kindo

Faculty Members:
Amit Bindal
Anujay Shrivastava
Arpan Acharya
Faraz Arif
Jibraan Mansoor
Shradha Prasad
 Jurisprudence

CONTENTS

PART I

General Information………………………………………………………………………… 3

PART II

a. Course Ideator…………………………………………………………………………….. 4

b. Course Description………………………………………………………………………. 4

c. Course Aims………………………………………………………………………………… 4

d. Intended Learning Outcomes……………………………………………………….. 4

e. Grading Student Achievement…………………………………………………....... 8

PART III

a. Keyword Syllabus………………………………………………………………………… 10
b. Course Policies……………………………………………………………………………… 10

PART IV

a. Weekly Course Outline …………………………………………………………............ 13

b. Readings……………………………………………………………………………………….. 13

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PART I

General Information

General Information on the Jurisprudence course offered by Jindal Global

Law School

in AY 2025-26

The information provided herein is by the Course Coordinator. The following

information contains the official record of the details of the course.

This information shall form part of the University database and may be
uploaded to the KOHA Library system and catalogued and may be distributed
amongst 1st year Law students for LL.B. courses if necessary.

Course
Title: Jurisprudence
Course
Code:
Course
Duration: One Semester
No. of Credit
Units: 4
Leve
l:
Medium of
Instruction: English

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Part II

a. Course Ideator

The present course convener, Professor (Dr.) Sandeep Kindo took over this course manual
from the previous convener, Professor (Dr.) Pritam Baruah, in 2021. It has undergone edits
and changes ever since. I thank the previous faculty conveners and members, including the
present, who conceptualized and contributed to it.

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

c. Course Aims

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

d. Intended Learning Outcomes

Course Intending Teaching and

Learning Learning Assessment
Outcomes Activities Tasks/Activities

By the end of the course

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 Jurisprudence

students
should be able to:

Reading of
Analytically and 50% philosophical End-of-course
texts other material,
critically describe, and examination (50% of
explain, and take weight
positions in the Research marks)
main
philosophical
debates
Students will
pertaining to the acquire
knowledge
of the Internals (50% of
topics to be covered philosophical marks
in the syllabus. for items such as
attendance, essay
debates their papers, group
motivations and Presentation, and
implications)
Participation)
pertaining to the
topics to be
covered
in the syllabus.
Lectures

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

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 Jurisprudence

their analytical
and
critical
capabilities
discuss important
issues of liability

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 Jurisprudence

pertaining to
topics covered in
the syllabus.

End-of-course
Analyse and 50 % Lectures examination
critically engage
with: Weight Students will be Students’ ability to
issues and introduced to take join issue in the
p h ilo so p h ical
concerns in positions on and d eb ates;
critically engage
reflected in the join issue in the with
jurisprudential debates introduced tne debate; and
debates in the class suggest (not in a
Preparation for
the relevance of tutorials comprehensive
the debates to manner, however)
live debates in Students will novel approaches to
law and politics: research issues the issues at hand
o in terms of outlined in the will be tested.
jurisprudential
the practical texts Internals:
and debates
implications
Tutorials Students will be
of the issues required to write
essays, make
identified in
Students will give presentations on
the deabte
presentations on problems / reading
o their
selected topics in materials allotted to
conceptual them and all
underpinnin which they will students
g
s scrutinise, analyse will be required

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 Jurisprudence

contribute to
and evaluate issues tutorial
o in relation to
and concerns discussions whether
the law in
they are making a
action
presentation or not.
Students’ ability to
research, analyze
and
resolve problems,
and
communicate
solutions orally will
be tested.

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

e. Grading Student Achievement

To pass this course, students must obtain a minimum of 40% in the cumulative aspects
of coursework, i.e., internal assessment (including moot, mid-term exam, internal
assignment) and end term examination. End of semester exam will carry 50 marks
out of which students have to obtain a minimum of 15 marks to fulfil the
requirement of passing the course.

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

PERCENTAGE GRADE
GRADE GRADE DESCRIPTION
OF MARKS VALUE
Outstanding – Exceptional knowledge
of the subject matter, thorough
understanding of issues; ability to
80 and above O 8 synthesize ideas, rules and principles and
extraordinary critical and analytical
ability
Excellent - Sound knowledge of the
subject matter, thorough understanding
75 – 79 A+ 7.5 of issues; ability to synthesize ideas, rules
and principles and critical and analytical
ability

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PERCENTAGE GRADE
GRADE GRADE DESCRIPTION
OF MARKS VALUE
Very Good - Sound knowledge of the
subject matter, excellent organizational
capacity, ability to synthesize ideas, rules
70 – 74 A 7
and principles, critically analyze existing
materials and originality in thinking and
presentation
Good - Good understanding of the
subject matter, ability to identify issues
65 – 69 A- 6 and provide balanced solutions to
problems and good critical and analytical
skills
Fair – Average understanding of the
subject matter, limited ability to identify
60 – 64 B+ 5 issues and provide solutions to problems
and reasonable critical and analytical
skills
Acceptable - Adequate knowledge of the
subject matter to go to the next level of
55 – 59 B 4 study and reasonable critical and
analytical skills.
Marginal - Limited knowledge of the
subject matter and irrelevant use of
50 – 54 B- 3 materials and, poor critical and analytical
skills
Pass 1 – Pass with basic understanding of
45 – 49 P1 2
the subject matter
Pass 2 – Pass with rudimentary
40 – 44 P2 1
understanding of the subject matter
Fail - Poor comprehension of the subject
matter; poor critical and analytical skills
Below 40 F 0 and marginal use of the relevant
materials. Will require repeating the
course
Absent - “Extenuating circumstances”
preventing the student from taking the
end- semester, or re-sit, examination as
the case may be; the Vice Dean
Absent Ab 0 (Examinations) at their discretion assign
the “Ab” grade. If an "Ab" grade is
assigned, the student would appear for the
end-semester, or re-sit examination, as
the case may be, as and when the

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PERCENTAGE GRADE
GRADE GRADE DESCRIPTION
OF MARKS VALUE
subsequent opportunity is provided by the
University.

PART III

a. Keyword Syllabus

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

b. Course/Class Policies

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

Office Hours

The course instructors will hold weekly two-hour office appointments for each section
they teach. The instructors will co-create the timings based on students’ overall class
timetable and email the respective class sections about their office hours.

Cell Phones, Laptops, and Similar Gadgets

The course instructors will allow students to use electronic devices such as phones,
laptops, and tablets for academic purposes only.

Academic Integrity and Plagiarism

Learning and knowledge production of any kind is a collaborative process. Collaboration

demands an ethical responsibility to acknowledge who we have learnt from, what we have
learned, and how reading and learning from others have helped us shape our own ideas.
Even our own ideas demand an acknowledgement of the sources and processes through

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which those ideas have emerged. Thus, all ideas must be supported by citations. All ideas
borrowed from articles, books, journals, magazines, case laws, statutes, photographs,
films, paintings, etc., in print or online, must be credited with the original source. If the
source or inspiration of your idea is a friend, a casual chat, something that you overheard,
or heard being discussed at a conference or in class, even they must be duly credited. If
you paraphrase or directly quote from a web source in the examination, presentation or
essays, the source must be acknowledged. The university has a framework to deal with
cases of plagiarism. All form of plagiarism will be taken seriously by the University and
prescribed sanctions will be imposed on those who commit plagiarism.

Disability Support and Accommodation Requirements

JGU endeavours to make all its courses inclusive and accessible to students with different
abilities. In accordance with the Rights of Persons with Disabilities Act (2016), the JGU
Disability Support Committee (DSC) has identified conditions that could hinder a
student’s overall well-being. These include physical and mobility related difficulties,
visual and hearing impairment, mental health conditions and intellectual/learning
difficulties e.g., dyslexia, dyscalculia. Students with any known disability needing
academic and other support are required to register with the Disability Support
Committee (DSC) by following the procedure specified at https://jgu.edu.in/disability-
support-committee/

Students who need support may register before the deadline for registration ends, as
communicated by the DSC via email each semester. Those students who wish to continue
receiving support from the previous semester, must re-register every semester prior to
the deadline for re-registration as communicated by the DSC via email. Last minute
registrations and support are discouraged and might not be possible as sufficient time is
required to make the arrangements for support.

The DSC maintains strict confidentiality about the identity of the student and the nature
of their disability and the same is requested from faculty members and staff as well. The
DSC takes a strong stance against in-class and out-of-class references made about a
student’s disability without their consent and disrespectful comments referring to a
student’s disability. With due respect for confidentiality, faculty and students are
encouraged to have honest conversations about the needs of students with disabilities and
to discuss how a course may be better tailored to cater to a student with disability.

All general queries are to be addressed to disabilitysupportcommittee@jgu.edu.in

Safe Space Pledge

This course may discuss a range of issues and events that might result in distress for some
students. Discussions in the course might also provoke strong emotional responses. To
make sure that all students collectively benefit from the course, and do not feel disturbed
due to either the content of the course or the conduct of the discussions. Therefore, it is
incumbent upon all within the classroom to pledge to maintain respect towards our peers.

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This does not mean that you need to feel restrained about what you feel and what you
want to say. Conversely, this is about creating a safe space where everyone can speak and
learn without inhibitions and fear. This responsibility lies not only with students, but also
with the instructor.

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

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PART IV

a. Weekly Course Outline

Week 1 Introduction

Week 2-3 Command Theories and their Predecessors (Historical School,

Voluntarism and Natural Law Theory)

Week 4 Legal Realism: American and Scandinavian

Week 5 Kelsen and the Purity of Law

Week 6-7 Hart’s sophisticated legal positivism: Law as a System of Rules

Week 7-8 Ronald Dworkin: The Noble Dream

Week 9 Justice

Weeks 10-11 Critical Approaches: Critical Legal Studies and Feminist

Jurisprudence

Week 12 Moral Limits of the Law

Week 13 – Fundamental Legal Concepts: Hohfeld’s Typology

Optional

Week 14 Revisions

b. Readings

WEEK 1

Introduction

Jurisprudence sometimes carries the tag of being an otherworldly, dense and

impenetrable subject. Before anything else, I want to dispel this wrong impression.
Jurisprudence is a subject that challenges intellectual lethargy and forces us to seek clarity
of thought and expression. No legal concept or cherished dogma is beyond the critical
gaze of the jurisprude. When simple legal answers run out, one must turn to
jurisprudential tools in seeking novel solutions. Jurisprudence will make you a better
corporate or tax or litigation lawyer; it will make you a better, disciplined thinker,

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generally. We will be encountering many live issues needing jurisprudential tools for their
resolution later in the course, but as an introduction, read the following debate from
Plato’s Republic to see some of the hardy perennials of jurisprudence which recur and
have figured prominently in the literature across ages. This reading is meant to give you
a flavor of the kind of issues which need jurisprudence for their understanding and
solution. Why Plato you may wonder? A lot of western philosophy (and jurisprudence)
has baked with the dough of the Greek classics. Visiting the source will give us a sense of
what lies ahead in the course.

Reading:

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

OR

Sophocles, Antigone (Dover Publications 1993)

Further Reading:

Wayne Morrison, Jurisprudence: From Greeks to Postmodernism (Routledge 1997) 19-

25 [Antigone] & 31-33 [Plato’s cave analogy].

Scott Shapiro, Legality (Harvard University Press), Chapter 1: What is Law (and Why
Should We Care)?

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WEEKS II-III

Command Theories and their Predecessors

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

Command Theories

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

According to these theories, something is law if it has been commanded by a Sovereign,

and is backed up by the threat of a sanction in case of non-compliance.

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

Questions to consider

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

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

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

If each law is posited by an act of the Sovereign way how does one explain the
phenomenon that legal systems seem to have a life of their own, distinct from the
lives of the Sovereigns? Which is to say, don’t legal systems remain in force even
when one Sovereign dies or one legislature dissolves and a new one ascends to the
throne or is reconvened?

Can you not think of law without sanctions? What about the power to make wills?
Or the many permissive laws that permit actions?

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Readings:

Suri Ratnapala Jurisprudence (Cambridge 2009) 36-47

Further readings:

John. D.Finch Introduction to Legal Theory Chapter 4

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

access)

John Austin The Providence of Jurisprudence Determined

Jeremy Bentham An Introduction to the Principles of Morals

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

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

Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble (ed.),

Cambridge: Cambridge University Press, 1995

The Predecessors: Voluntarism, Natural Law and the Historical School

The command theories have exercised a disproportionately large influence on legal

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

Readings:

Brian Bix, Jurisprudence: Theory and Context 275, 276

Christine Korsgaard Sources of Normativity (extracts) 20-28

Kenneth Himma Natural Law Internet Encyclopedia of Philosophy

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

Further readings:

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

Fuller, Lon L. (1964). The Morality of Law. New Haven : Yale University Press

Questions to consider

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

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

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WEEK IV

American Legal Realism

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

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

American Legal Realism

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

Readings:

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

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

Further Readings:

F. Cohen, ‘Transcendental Nonsense and the Functional Approach’, 35 Columbia LR

(1935) 809

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

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

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

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

Questions to consider

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

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

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

If all there is to obligation is a fear of sanction or threat, is there no difference

between the law and the gunman’s commands? Where does this leave the law? Is
the law then nothing more than a mere system of coercion?

Scandinavian Realism

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

Readings:

Alf Ross ‘Tu Tu’ 70 (1958) Harvard Law Review 812-825

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

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(reductionist) ambitions are revealed in Ross far greater clarity)

Further Readings:

Suri Ratnapala Jurisprudence (Cambridge 2009) 109-116

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

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

Karl Olivcrona, ‘Realism and Idealism’ 26(1951) N.Y.U. L. Rev. 120-131

Questions to consider:

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

Can an obligation be as closely intertwined with a feeling to be bound by the rule?

Can’t we acknowledge the existence of legal obligation without at the same time
being bound by it?

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

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WEEK V

Kelsen: The Purity Theorist

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

Readings:

Brian Bix, Jurisprudence: Theory and Context 57-67

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

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

Further Readings:

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

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

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

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

Jurisprudence,

Second Series (1973)

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

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

Rosenfeld Michel, ‘Confronting the Gulf Between Law and Solidarity: Kelsen Encounters
Freud’ A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in

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Times of Rising Populism and Illiberalism (Oxford University Press,2022) Part II

Questions to consider:

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

Kelsen’s protestations to the contrary?

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

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

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

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WEEK VI-VII

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

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

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

The Legal System as a System of Rules

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

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

Rules and Legal Obligation

As far as his account of legal obligation goes, Hart argues that a legal obligation is a
statement of what is required to comply with a rule. He seeks to walk a tight rope between
many pitfalls among them being extreme empiricism (like Bentham, Austin, American

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 Jurisprudence

Realists); metaphysical ambition, or profligacy, if you will ( like the natural lawyers); and
obscurity ( like Kelsen who struggled to tell exactly what the nature of the legal obligation
was).

Rules and Adjudication

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

Questions to consider:

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

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

Could there be valid law without courts?

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

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

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

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

Readings:

H.L.A. Hart The Concept of Law (2nd edition Indian reprint) Chapters 4-7 [excerpts to
be specified]

Suri Ratnapala Jurisprudence (Cambridge 2009) 48-56

Further Readings:

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 Jurisprudence

Wayne Morrison, Jurisprudence: From Greeks to Postmodernism (Routledge 1997).

H.L.A. Hart, Positivism and the Separation of Law and Morals (Harvard Law Review
1958)

Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart (Harvard Law
Review 1958)

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

H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), ch. 4 (‘American

Jurisprudence Through English Eyes: The Nightmare and the Noble Dream’)

P.M.S. Hacker, ‘Hart’s Philosophy of Law’ in Hacker & Raz (eds.), Law, Morality and
Society (Oxford 1977)

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

J. Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, American Journal of
Jurisprudence 52 (2007)

Schroder L. J, ‘His Masters Voice: HLA Hart and Lacanian Discourse Theory’ (2007)
Law & Critique
https://heinonline.org/HOL/LandingPage?handle=hein.journals/lwcrtq18&div=7&id=
&page=

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 Jurisprudence

WEEK VII-VIII

Ronald Dworkin: The Noble Dream

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

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

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

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

Questions to consider

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

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 Jurisprudence

Aren’t the principles Dworkin talks about best understood as laws made by
someone at some point? After all they do need a human agency to make them
explicit.

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

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

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

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

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

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

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

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

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

Readings:

Ronald Dworkin, Taking Rights Seriously (1978) Chapters 2 and 4 [excerpts to be

specified]

Ronald Dworkin, Law’s Empire (1986) Chapters 3 and 7 [excerpts to be specified]

Suri Ratnapala Jurisprudence (Cambridge 2009) 173-182

Further Reading:

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution
(1996) Harvard University Press

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 Jurisprudence

Ronald Dworkin, Law as Interpretation (1982) University of Chicago Press

https://www.jstor.org/stable/1343279 179-200

J. Raz, 'Legal Principles and the Limits of Law'; A. Woozley, 'No Right Answer'; J.
Mackie, 'The Third Theory of Law' all in Ronald Dworkin and Contemporary
Jurisprudence (1984):

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

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

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

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

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 Jurisprudence

WEEK IX

Justice

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

Readings:

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

Amartya Sen, The Idea of Justice (Harvard University Press 2009) [excerpts to be specified]

Further Readings:

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

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

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

B.R. Ambedkar, States and Minorities (1947) Writings and Speeches, Volume 1
https://baws.in/books/baws/EN/Volume_01/pdf/443 395-428

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

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

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

195 https://www.jstor.org/stable/10.13110/discourse.39.2.0195

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

Questions to consider

Ø Does Justice require complete equality between parties?

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

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

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 Jurisprudence

WEEK X

Critical Approaches to Law

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

Critical Legal Studies

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

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

Readings:

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

content/uploads/2011/12/Law-and-Ideology.pdf [excerpts]

Robert Cover, ‘Violence and the Word,’ (1986) 95 Yale Law Journal 1601-1629.

Further Readings:

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

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

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 Jurisprudence

WEEK XI

Feminist Jurisprudence

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

--Simone de Beauvoir, The Second Sex

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

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

Readings:

Catherine Mackinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence’, (1983) 8 Signs 635. [excerpts to be specified]

Martha Nussbaum, ‘Whether from Reason or Prejudice: Taking Money for Bodily
Services’, (1998) 27 Journal of Legal Studies 693. [excerpts to be specified]

Larissa Behrendt, ‘Aboriginal Women and the White Lies of the Feminist Movement’
(1993) Australian Feminist Law Journal 27. [excerpts to be specified]

Further Readings:

Rosemary Tong, Feminist Thought: A more comprehensive introduction (2013).

Narayan, Uma, The Project of Feminist Epistemology: Perspectives from a Non-western
Feminist. In McCann and Kim (Eds) Feminist Theory Reader. New York: Routledge
(2003).

Ann Scales ‘The Emergence of Feminist Jurisprudence: An Essay’ (1986) 95 Yale Law
Journal 1373-1403

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

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

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 Jurisprudence

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

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

Toward a FeministTheory of the State’ (1991) Yale Law Journal
<http://hdl.handle.net/20.500.13051/8628>

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

Theory Enough?’ (2003) 12 (3) Columbia Journal of Gender and Law 601
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/coljgl12&div=43&id
=&p>

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 Jurisprudence

WEEK XII

The Moral limits of law

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

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

— Lord
Devlin

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

– John Stuart
Mill

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

Readings:

[Excerpts from] Naz Foundation v Government of NCT 160 Delhi Law Times 277

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

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

[Excerpts from] H.L.A. Hart, Law, Liberty and Morality (1963)

Further Readings:

Suresh Kumar Koushal v Naz Foundation [2013]

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

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 Jurisprudence

Navtej Singh Johar v Union of India AIR 2018 SC 4321

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

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

(1985)

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

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

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 Jurisprudence

WEEK XIII

Fundamental Legal Concepts

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

Claim right
No right
Duty
Privilege
Power
Disability
Immunity
Liability

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

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 Jurisprudence

Optional Readings:

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

23 (1913) Yale Law Journal 16.

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

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

_____________________________________

36