Jurisprudence I

2005

NLSIU II Year
Sudhir Krishnaswamy

NLS Course Objectives:

In Jurisprudence I we will confine ourselves to core themes in

general jurisprudence: by that we mean about the phenomenon of
law taken as a whole. Analysis of important jurisprudential topics in
particular areas of law including tort, contract, property and crime
are to be considered in Jurisprudence II. In this course, we will
primarily engage in a philosophical analysis of law. Arguably several
competing, or sometimes complementary, disciplinary approaches to
the study of legal phenomenon are viable. By engaging with the
philosophical analysis of law this course, will not adopt the view that
this is a superior, or the only valid, methodological view.

The course is structured around 10 teaching weeks, each of which will

explore distinct themes as outlined below:

Week 1 Doing Jurisprudence: Method and Discipline

Week 2 Concept of Law: Commands and Norms
Week 3 Concept of Law: Rules
Week 4 Concept of law: Principles and the Interpretive Method
Week 5 Concept of Law: Realism, CLS and Law and Economics
Week 6 Law and Morals: Natural Law Theories and the Limits of
Law
Week 7 Authority and Obligation
Week 8 Adjudication
Week 9 Rights
Week 10 Theories of Justice

During this course we will strive to develop the core skills of

philosophical analysis: close reading, careful reasoning backed by
precision and clarity of expression. We will develop these skills by
engaging with the core texts in the jurisprudential debates of the last
century. Moreover, we will critically examine these debates and their
relevance to our understanding of domestic law and politics.

Course Evaluation:

Term Paper: 25 marks

You will write a term paper not more than 3000 words [including
footnotes and references] on a topic you choose from the list
distributed at the start of this course. In the term paper you will make
philosophical arguments in support of your answer to the question you
respond to. You will need to cover the relevant readings on the topic
and write with precision and clarity.

Viva Voce: 10 marks

After submission of your term paper you will present yourself for a
viva voce examination. You will be given 15 minutes to defend the
central arguments in your term paper.

Exams:
Mid-term: 20 Marks (Answer 2 out of 5 Qns)
End-term exam: 30 Marks (Answer 3 out of 6 Qns)

You will write essay length answers choosing among the questions in
the paper. These answers must reflect your familiarity with the central
readings of the course and demonstrate your ability to make coherent
and careful arguments which make an adequate response to the
questions posed to you.

Class Participation: 10 Marks

Through the course, you will be called upon [at least twice] to make a
substantial contribution to the class discussion on the relevant topics
for the sessions. This will be by way of leading class discussion on the
topics for the week and making a short written submission developing
on the class discussion. Your ability to advance the understanding of
the class on the topic being studied, and covering parts of the court
not adequately discussed in class will ensure that you are marked
highly in this section.

Attendance: 5 Marks (as per the existing University Rules)

Useful Books:
J Harris Legal Philosophies (2nd ed OUP 2005)
Roger Cotterrell The Politics of Jurisprudence (Butterworths, 1989)
Howard Davies & David Holdcroft Jurisprudence: Texts and
Commentary (Butterworths, 1991)

UGC Course Description and Syllabus:

JURISPRUDENCE

Objectives of the course

At the heart of the legal enterprise is the concept of law. Without a
deep understanding of this concept neither legal education nor legal
practice can be a purposive activity oriented towards attainment of
justice in society. Moreover, without a comprehension of the cognitive
and teleological foundations of the discipline, pedagogy becomes a
mere teaching of the rules. It is unable to present various statutes,
cases, procedure, practices and customs as a systematic body of
knowledge, nor is it able to show the inter-connection between these
various branches of law, procedures and principles. The fact that the
basic nature and purpose of law should be clear to every student and
that it should be the very foundation of law teaching needs little
argument. A course in jurisprudence should, primarily, induct the
student into a realm of questions concerning law so that he is able to
live with their perplexity or complexity and is driven to seek out
answers for himself.

It may not be possible that a one year jurisprudence course can

impart knowledge of doctrines about law and justice, developed over
the years, in various nations and historical situations. At best an
undergraduate course should impart the analytical skill and equip the
student with the basic problems concerning law and the types of
solutions sought. Thus, the student not only will be able to use this
skill in practice but also is motivated to take up detailed historical
studies on his own after the course. Since a basic idea in the
designing of this course is to bring jurisprudence closer to our reality,
in the selection of cases and reading materials the teacher should try
to make use of the Indian material as far as possible.

The course will comprise of 84 units of one hour duration.

Syllabus

1. Introduction (units 10)

1.1. Meaning of the term 'jurisprudence'

1.2. Norms and the normative system.

1.2.1. Different types of normative systems, such as of games,

languages, religious orders,
unions, clubs and customary practice.
1.2.2. Legal system as a normative order: similarities and differences
of the legal system
with other normative systems.

1.3. Nature and definition of law.

2. Schools of Jurisprudence (units 15)

2.1. Analytical positivism

2.2. Natural law

2.3. Historical school

2.4. Sociological school

2.5. Economic interpretation of law

2.6. The Bharat jurisprudence

2.6.1. The Ancient: the concept of 'Dharma'

2.6.2. The Modern: PIL, social justice, compensatory jurisprudence

3. Purpose of Law

3.1. Justice

3.1.1. Meaning and kinds

3.1.2. Justice and law: approaches of different schools
3.1.3. Power of the Supreme Court of India to do complete justice in a
case: Article 142
3.1.4. Critical studies
3.1.5. Feminist jurisprudence

4. Sources of Law (units 20)

4.1. Legislation

4.2. Precedents: concept of stare decisis

4.3. Customs

4.4. Juristic writings

5. Legal Rights: the Concept (units 6)

5.1. Rights: kinds

5.2. Right duty correlation

6. Persons (units 3)

6.1. Nature of personality

6.2. Status of the unborn, minor, lunatic, drunken and dead persons]

6.3. Corporate personality

6.4. Dimensions of the modern legal personality: Legal personality of

non-human beings

7. Possession: the Concept (units 3)

7.1. Kinds of possession

8. Ownership :the Concept (units 3)

8.1. Kinds of ownership

8.2. Difference between possession and ownership

9. Title (units 2)

10. Property: the concept units 3

10.1. Kinds of property

11. Liability (units 15)

11.1. Conditions for imposing liability

11.1.1. Wrongful act
11.1.2. Damnum sine injuria
11.1.3. Causation
11.1.4. Mens rea
11.1.5. Intention
11.1.6. Malice
11.1.7. Negligence and recklessness
11.1.8. Strict liability
11.1.9. Vicarious liability

12. Obligation: Nature and kinds (units 2)

12.1. Sources of obligation

13. Procedure (units 2)

13.1. Substantive and procedural laws: difference
13.2. Evidence: Nature and kinds
Select bibliography
Bodenheimer JurisprudenceThe Philosophy and Method of Law
(1996), Universal , Delhi.
Fitzgerald,(ed.) Salmond on Jurisprudence (1999) Tripathi, Bombay
W. Friedmann, Legal Theory (1999) Universal, Delhi.
V.D. Mahajan, Jurisprudence and Legal Theory (1996 re-print) ,
Eastern, Lucknow
M.D.A Freeman (ed.), Lloyd's Introduction t Jurisprudence, (1994),
Sweet & Maxwell
Paton G.W., Jurisprudence (1972) Oxford, ELBS
H.L.A. Hart, The Concept of Law (1970) Oxford, ELBS
Roscoe Pond, Introduction to the Philosophy of Law (1998 Re-print)
Universal, Delhi.
Dias, Jurisprudence (1994 First Indian re-print), Adithya Books, New
Delhi.
Dhyani S.N., Jurisprudence: A study of Indian Legal Theory (1985),
Metropolitan, New Delhi.

Extract from Oxford University Handbook for Undergraduate

Jurisprudence Course

Jurisprudence

Jurisprudence is wisdom about law, which is what the Oxford

undergraduate law degree as a whole aims to impart.
Jurisprudence is also the name of a course that forms a
compulsory part of the degree, studied in year 2. In this course
we cultivate wisdom about law in general, especially (but not
only) philosophical wisdom concerning universal and timeless
questions. These questions include: What is law? Is law always
morally binding? What are the limits of legitimate law-making?
Must judges engage in moral reasoning?

The course helps you to achieve critical distance from the legal
materials you study elsewhere in your degree programme. It
also broadens your general intellectual and cultural horizons in
the way that a university education is supposed to. Finally, what
you learn as a jurisprudence student feeds back into your legal
studies by teaching you more about the art of argument. When
you study a legal problem you have cases and statutes to help
you put some matters beyond argument. But in the
jurisprudence course nothing is beyond argument. This makes
law students feel a little uneasy at first, but it also strengthens
their hand as lawyers.
Week 1 - Introduction
Doing Jurisprudence

Lon Fuller The Case of the Speluncean Explorers 62 Harv. L. Rev. 616-
45 (1949)
P Suber The case of the Speluncean Explorers: Nine New Opinions
Preface and Introduction (Routledge 1998)

H.L.A. Hart The Concept of Law (2nd ed, Oxford 1994) Preface, Ch 1,
and 239-244 of the Postscript
H.L.A. Hart, Definition and Theory in Jurisprudence in Hart, Essays
in Jurisprudence and Philosophy (Oxford 1983), ch 1, ss I-III.
J. Finnis, Natural Law and Natural Rights (Oxford 1980) ch 1
R Dworkin Taking Rights Seriously Ch 1
R. Dworkin, Laws Empire (London 1986), 31-48; 46-53; 65-72; 90-96;
114-117

B Being Philosophical

http://en.wikipedia.org/wiki/Philosophy
http://philosophy.hku.hk/think/project/

Simon Blackburn Think (OUP Oxford 2001)

T Nagel What Does It All Mean? (OUP Oxford 1987)

Suggested Reading:
Ted Honderich Encyclopaedia of Philosophy (OUP Oxford 1997): See
particularly Appendices on Maps of Philosophy and Chronology of
Philosophers
Stanford Encyclopaedia of Philosophy:
http://plato.stanford.edu/contents.html#l

Legal Philosophy
Internet Encyclopaedia of Law: http://www.iep.utm.edu/l/law-phil.htm
University of Oxford Legal Philosophy:
http://www.law.ox.ac.uk/jurisprudence/

C Is there an Indian Jurisprudence?

Sue Hamilton A Very Short Introduction to Indian Philosophy (OUP

Oxford 2001) Ch 1
AK Ramanujam, Is there an Indian Way of Thinking? in Marriot McKim
India Through Hindu Categories (Sage Chicago 1990) (on file)
SN Balgangadhara and V Dhareshwar - Orientalism and Revivalism
(on file)
N Mukherji Academic Philosophy in India (on file)
Week 2: Concept of Law Commands and Norms

A John Austin
Austin Province of Jurisprudence Determined ( Lectures 1, 5 and pp.
227-233; 254-268
R Cotterrell The Politics of Jurisprudence Ch. 3
J Harris Legal Philosophies Ch. 3

For criticisms:
Hart The Concept of Law Ch 4
Kelsen General Theory of Law and State (reprinted edn), pp. 30-37;
72-74
Raz The Concept of a Legal System

B Hans Kelsen

Kelsen General Theory of Law and State (reprinted edn), pp. 45-47
(legal norms as rules of law in a descriptive sense); 50-56 (sanctions
and duties); 58-62; 77-86 (rights); 110-123 (the legal order and
revolutions); 186-189 (the state)

Kelsen The Pure Theory of Law (1970 edn), pp. 1-15 (norms); 30-37
(the legal order: coercion); 44-50 (law and banditry); 54-58
(dependent norms); 114-119 (obligation; duty and sanction); 129-130;
134-137 (rights); 208-214 (revolutions) and 221-236.

For Criticisms:
Hart Kelsen Visited (1963) 10 Univ. of California Law Rev. 709
Kelsen (1965) 17 Stanford Law Rev. (vol. 2) 1128
Hart The Concept of Law pp. 33-41; 245-247
Raz The Concept of a Legal System Ch
Raz The Authority of Law Ch. 7

Further Reading:
Paulson Kelsen's Legal Theory: the Final Round (1992) 12 Oxford
Journal of Legal Studies 265
Harris Kelsens Pallid Normativity (1996) 9 Ratio Juris 94-117
N Barber (2000) 116 Law Quarterly Review 569

Week 3
Concept of Law Rules

A HLA Hart
Hart Concept of Law Chs 3, 4, 5.
Cotterrel The Politics of Jurisprudence (London Butterworths 1989)
Ch 3
MacCormick in (1994) 14 Oxford Journal of Legal Studies 1

Further Reading:
J. Rawls, Two Concepts of Rules Philosophical Review (January 1955),
64(1): 3-32
J. Raz, Reasoning with Rules
http://users.ox.ac.uk/~raz/H01/reasoning.doc

B Raz
Raz, On the Nature of Law (1996) 82 Archiv fur Rechts-und
Sozialphilosophie 1 OR Ethics in the Public Domain Ch 9
Raz Practical Reason & Norms (2nd edn., 1999); ch. 2 (criticizing the
practice theory and introducing the idea of law as exclusionary
reasons): pp. 123-148 and ch. 5
or
Raz The Authority of Law (1979), chs. 1 - 3, 5, 6 & 8

C Hard and Soft Positivism

Hart, Postscript to the Concept of Law, pp. 250-254
Coleman Incorporationism, Conventionality and the Practical
Difference Thesis in Coleman (ed) Harts Postscript ch. 5
OR
Himma, Inclusive Legal Positivism in Coleman and Shapiro (eds)
The Oxford Handbook of Jurisprudence Ch 4 (can be read later)

Shapiro, On Harts Way Out in Coleman (ed) Harts Postscript, ch. 5

(Shapiro takes a position very similar to Raz) (can be read later)
Marmor Exclusive Legal Positivism in Coleman and Shapiro (eds) The
Oxford Handbook of Jurisprudence Ch 3 (can be read later)

Week 4
Concept of Law Principles and the Interpretive Method

A On Principles
Dworkin Taking Rights Seriously (revised ed, London 1978) Chs.
Model of Rules I and II and Hard Cases

Responses:
Harts Postscript to Concept of Law
J Raz Legal Principles and the Limits of the Law in Cohen (ed) Ronald
Dworkin & Contemporary Jurisprudence (London 1984)
Dworkins Response: Harts Postscript and the Character of Political
Philosophy (2004) 24 Oxford Journal of Legal Studies 1

B Law as Integrity
Dworkin Laws Empire Ch 1-3, 6, 7.
Raz Ethics in the Public Domain Ch 10 pp. 220-226 [on coherence
theories]
John Finnis On Reason and Authority in Laws Empire 6 Law and
Philosophy 357-80(1987)

Further Reading
Eekelaar, Judges and Citizens: Two Conceptions of Law (2002) 22
Oxford Jo. Legal Studies 497

Week 5
Concept of Law Realism and Critical Legal Studies

A Realism
Oliver Wendell Holms, The Path of the Law in Collected Legal
Papers (Boston: Harcourt Brace, 1920), pp. 167-202 or Harvard Law
Review
Karl Llewellyn A Realistic JurisprudenceThe Next Step 30 Columbia
Law Review 431-65 (1930)
Karl Llewellyn The Bramble Bush (rev.ed. 1951) OR Some Realism
about Realism 44 Harvard Law Review 1222 (1931)
Roscoe Pound The Call for a Realist Jurisprudence 44 Harvard Law
Review 697 (1931)

W. Twining Talk About Realism (1985) 60 New York University Law

Review 329
R Cotterrel Politics of Jurisprudence Chs 6, 7

B Critical Legal Studies

D. Kennedy, Form and Substance in Private Law Adjudication (1976)
89 Harvard LR 1685
R. Unger, The Critical Legal Studies Movement (1983) 96 Harvard
LR 561
Alan Hunt The Theory of Critical Legal Studies (1986) Oxford Journal
of Legal Studies 1
Gordon Critical Legal Histories (1984) 36 Stanford Law Rev 57

Criticisms:
Finnis in Eekelaar & Bell, Oxford Essays in Jurisprudence (Third
Series), ch. 7
Krygier in (1987) Oxford Journal of Legal Studies 26
McCormick (1990) 10 Oxford Journal of Legal Studies 539
Harris (1989) 52 Modern Law Rev. 42

C Feminism
Robin West Jurisprudence and Gender 55 University of Chicago Law
Review 1 (1988).
F. Olsen, Feminism and Critical Legal Theory: an American
Perspective 18 International J of the Sociology of Law 199 (1990)
N. Lacey Feminist Legal Theory (1989) 9 OJLS 383
OR
Feminist Legal Theory Beyond Neutrality in Unspeakable Subjects:
Feminist Essays in Legal and Social Theory (1998)
Gavison 45 Stanford Law Review 1 (1992)

Further Reading:
Rajeev Dhavan The Supreme Court of India: Socio-Legal Critique of
its Juristic Techniques (N. M. Tripathi, Bombay, 1977) Ch 1

Week 6
Law and Morals: Natural Law Theories and the Limits of Law

A Natural Law
Finnis Natural Law and Natural Rights Chs 1 & 10, and read Chs 2-6
in passim
Lon Fuller The Morality of Law Chs 1 & 2

Responses:
Kramer in (1998) 18 Oxford Journal of Legal Studies 235 [to Fuller]
Neil MacCormick, Positivism and the Separation of Law and Morals in
Natural Law Theory: Contemporary Essays (ed) Robert P. George
(Oxford: Clarendon Press, 1992)
Nick Bamforth Natural Law Theory [on file]

Further Reading:
Foot (1995) 15 Oxford Journal Legal Studies 1
John Finnis On the Incoherence of Legal Positivism 75 Notre Dame
Law Review 1597-1612 (2000)
John Gardner Legal Positivism: 51/2 Myths 46 American Journal of
Jurisprudence 199 (2001)

B Hart-Fuller Debate
HLA Hart Positivism and the Separation of Law and Morals 71
Harvard Law Review 593-629 (1958)
Lon L. Fuller Positivism and Fidelity to LawA Response to Professor
Hart 71 Harvard Law Review 630-72 (1958)
Fuller Morality of Law Ch
H.L.A. Hart The Concept of Law Ch 9
Honore The Necessary Connection between Law and Morality (2002)
22 Oxford Journal of Legal Studies 489
Joseph Raz The Authority of Law Ch 11

C Limits of Law
J. S. Mill On Liberty (1859), chs 1, 4, 5 (Introduction by John Gray in
the Oxford Worlds Classics edition, 1998)
H.L.A. Hart Law, Liberty, and Morality (Oxford 1963)
P. Devlin The Enforcement of Morals (Oxford 1965) ch. 1 (chs 5 and 7
also recommended)
Dworkin Taking Rights Seriously Ch 10

Further Reading:
Raz The Morality of Freedom (Oxford 1986) chs 1, 14, 15 (especially
ss 15.3, 15.4)
A.P. Simester & A. von Hirsch Rethinking the Offence Principle , 8
Legal Theory 269 (2002)
J. Feinberg, Harm to Others (Oxford 1984) Chs 1-3

Naz Petition in New Delhi HC

Excerpts of State response
http://www.sacw.net/new/openletter15092003.html

Week 7 - Authority and the Obligation to Obey

A Authority of Law
J Raz Introduction and R.P. Wolff The Conflict between Authority and
Autonomy in Raz (ed) Authority (Oxford 1990) or Wolff, In Defense of
Anarchism, (New York 1970), ch 1.
J Raz, The Authority of Law, (Oxford 1979) Ch 1 (a critique of one
aspect of Wolffs view)
J Raz Government by Consent in his Ethics in the Public Domain
(Oxford 1994) Ch 16 (a critique of the rest of Wolffs view).

B Obligation to Obey
M.B.E. Smith Is There a Prima Facie Obligation to Obey the Law?
(1973) 82 Yale Law Journal 950
Raz Authority of Law Chap 12, 13, 14
Dworkin Taking Rights Seriously Chs 7, 8
Raz Ethics in the Public Domain Ch 15
J.M. Finnis, Natural Law and Natural Rights (Oxford 1980), ch 11

Further Reading:
P Suber Civil Disobedience in Christopher B. Gray (ed.) Philosophy of
Law: An Encyclopedia (Garland Pub Co 1999 II.110-113).
MK Gandhi Statement in the Great Trial of 1922 at
http://www.mkgandhi.org/speeches/speechMain.htm
Dworkin A Matter of Principle, (Oxford 1984), 104-116
Finnis and Raz compared: (1995) 15 Oxf. J'nl Legal Stud 153

Week 8 - Legal Reasoning and Adjudication

Neil MacCormick Legal Reasoning and Legal Theory (Clarendon Law

1994) Ch 1, 2 and 3.

Hart Concept of Law Ch 7

Dworkin Taking Rights Seriously Ch 4
Hart Concept of Law Harts Postscript
Dworkin No Right Answer either in Hacker & Raz (ed) Law, Morality
and Society Ch 3
or
Dworkin, A Matter of Principle. ch. 5;
Dworkins Laws Empire Chs 8, 9, 10.
Raz Authority of Law Ch 4 and 11
Raz Ethics in the Public Domain Ch 11

Criticisms:
R.M. Unger, What Should Legal Analysis Become? (London 1995), 83-
106
D. Kennedy, Ideology in Adjudication A Critique of Adjudication
(1998)

Further Readings:
Sunstein On Analogical Reasoning (1993) 106 Harv LR 741
Bijoe Emmanuel v State of Kerala 1986 (3) SCC 615

Week 9 - Rights: Legal and Moral

Waldron Theories of Rights (OUP 1984) Introduction pp 1-20.

C Singh The inadequacy of Hohfeld's Scheme 27 Journal of Indian
Law Institute (1985)

A The Concept of Rights

Hart Definition & Theory in Jurisprudence (1954) 70 LQR
MacCormick "Rights in Legislation" in Hacker & Raz (ed) Law,
Morality & Society Ch. 11
Raz The Morality of Freedom Ch 7
Dworkin, Taking Rights Seriously Ch 12, 13

Goodin & Gibson (1997) 17 OJLS 185

B Rights and other Interests

Dworkin Taking Rights Seriously Ch 7

Dworkin Rights as Trumps in Jeremy Waldron (ed), Theories of Rights
Ch 7
OR
Is there a Right to Pornography? (1981) Oxford Journal of Legal
Studies 177
OR
A Matter of Principle, Ch. 17
Hart Between Utility and Rights in Essays in Jurisprudence &
Philosophy Essay 9
Finnis Natural Law & Natural Rights ch. 8
Raz Ethics in the Public Domain Ch 3

Further Reading:
P Rathinam v Union of India (1994) 3 SCC 394-430
Gian Kaur v State of Punjab AIR 1996 SC 83
Dworkin Lifes Dominion Ch on Euthanasia

Week 10- Justice

Hart Concept of Law Ch 8

Rawls Theory of Justice Ch 1
Dworkin Taking Rights Seriously Ch 6
Finnis Natural Law and Natural Rights Ch 7

Further Reading:
T. Nagel Justice and Nature 17 Oxford Journal of Legal Studies 303
(1997).
Michael Sandel Liberalism and the Limits of Justice (Cambridge
University Press UK 1982)
Michael Walzer Spheres of Justice (Basic Books New York 1983)