FIRST SEMESTER 2015-16

LEGAL THEORY AND METHODS

Queries to dhandamethods@gmail.com

 Tensions between law and legitimacy.

1) What system a law operates in?

2) The course provides frames of reference to work and think through.

Reading the Law by Peter Goodrich (Blackwell, Oxford 1986) pp. 3-13:

To define the law Various sources of Law

 Culture  God
 Magic  Nature, eg. Self defense
 Vendetta  Monarch/ Sovereignty, i.e.
 Song Contests- Inuits in Canada, “The King can do no wrong.”
divided into bands (sub-tribes)  Spirit of the people
songs hurl insults at each other.  Customs
Goal of exercise is to reach social
harmony and not to social sanction
(the latter happens in Western legal
tradition)
 Trial by Ordeal- (has a religious
notion) eg. Agni Parkisha.
 Trial by combat-eg. Dueling, Wild
West

Rather than defining law, legal research is now more interested in:
1) traditionally established texts and,
2) similarly established practices for the interpretation of these texts

Law is different from other social phenomena as in what law does that the
religion does not.

1. Institutional sources: Legislature, Executive, Judiciary, Bureaucracy.

Constitution (as a medium of creating institutions) 9whatever comes out
from these institutions, becomes a law)

PHASES OF MAKING A LAW: eg. Legislation…from Parliament to Gazette of

India

2. Ideational (concept-based) sources: Constitution, (Preamble-democracy,

republic, equality, federalism and so on) (these are the ideas behind the
laws)
 Constituent Assembly’s inclusion as an institutional source is subject to
criticism.

What is law and what is not? We get it through adjudging the

institutions/ideations the case may be.

No categorization is absolute.

Law has played various roles eg. Social, economic etc, but it has remained its
distinct. Law plays these roles, but it is not just these, it is something different
from these mere roles.

What is the need to define law, or the sources of law?

TASK: Find in the world examples of sources of law as explained in the first para.

Institutional sources tell us whether something is a law or not, but the ideational
sources tells us whether we want an idea that inspires the said “law” or we have
moved away from the basic core aspects of that particular idea.

Two ways to study law”

1. Law is a specific body of information, and if I know the information, I
know the law.
2. Though you are aware of the information, as a student, as a citizen, what
kind of weightage to a particular ideology, school of thought, and make a
critical analysis, and other interpretations; it is ideal to become a scholar
with an agency.

Unity- the identity of law as a distinct

Separation- different from other forms of social control

1. Variable in content- that the source of law can change from time to time
2. Constant in its form- that one will always find a source of law, it has
always been there.
And these (1 and 2) make it a distinct from other social phenomena.

Is it law or not? Yes,. Why? Because it comes from so and so institution/ideation.

So, the source cannot be challenged, which provides a case for law not to be
challenged.

The constancy of the source is there, but the variability of the source has also been
there.

If it is coming from an authoritative source, then there is an “absolute”

justification.
Core idea of Goodrich: to explain the source of law being the reason for a law
being considered legitimate, associating it with the psychological consequences
of not obeying the law.

The implicit sources are not openly referred to, i.e. to talk about these:
1. Parliament- explicit
2. Will of the people- implicit.
So, the ideation behind the institution is not referred or preferred as much as the
legal tradition does so to the latter. We no longer refer /evoke the concepts
expressly. The significance of this is: that ideation is more complex and nuanced.
Thus it can be said, to facilitate day-to-day functioning/ conversations.
Therefore, the ideation is more open to debate and thought than the institution
that the particular idea intends to create.
That is why the explanations in terms of ideas are “increasingly infrequently
utilized” as the explicit sources of law.

Ideational source is usually the unwritten, unspoken of , it is only referred to

when is becomes a subject of dispute/ controversy.

In everyday usage, we presume the ideational sources of law when we talk about
the institutional source.. It is a distinction between the implicit and the express.

Ending of the reading: ”rather than defining law”, and we stated by defining the
law.

We only refer to the ideas when the institutions established by these run into the
disputed waters.

George P Fletcher, Basic Concepts of Legal Thought (OUP, NY 1996) 23-38

(Addressing some of the hot controversies surrounding the tensions between
various perspectives of looking t law)

Developing a reasoning by analogy

Relationship between law and science

- Necessity- to follow;
- Inevitability-in terms of how to deal with the laws.

How divergence between the laws and facts causes in the domain of humans and
science?
I you call something to be a law, then, facts must be in consonance, and if it is not,
then, the law is changed. The case is not the same in case of humans. In science,
you cannot change the facts, but in human laws, we can change the pattern of
human conduct. In the idea of the human law, a certain non-negotiability enters
into the law. The moment you call something a law, you put into it the concept of
obedience or compliance. The only merit of his comparison is that when you use
the term law, there is a minuteness of inevitability in it.

Law and Economics (how much should be enforced and how much should be
observed)
1. Full compliance- not just an economic disadvantage, but also has a
rights-based dimension of questions regarding freedom and liberty
associated with. We don’t have any choice.
2. Optimal compliance- to solve the issue, it has to be a universal kind of a
thing- and not a whimsical basis on which some people suffer and others
do not.

Marketing full compliance and enforcing optimal compliance is what most

people do.

Checkerboard solution is an output of a pragmatic approach to bring together

the legality and the opportunity principles. It holds that something is better than
nothing. It happens only when NO compromise can be reached. It is arbitrary in
nature and the conclusion reached. In this case, when we speak of universality
and generality as necessary components of law, a checkerboard solution is more
of a policy apparatus rather than a law.
Eg. NALSAR’s transition in 2012 to CBES.

Example: Affirmative action (eg. Reservations) is not a checkerboard, because it

conforms to the principle of universality…because it treats equal people equally
as a class of people unequal in the overall domains of society. The notion of
unequal nature of reservation policy advances the overall final goal of bringing
out equality amongst all. It is not checkerboard because it applies universally to
all people belonging to a particular “class.”

Example: Comparative analysis of the RTI and the RTE: In this case, RTE is
principled, no doubt: but as to the checkerboard involved in the RTI, it can be
argued with enough logic that the exemptions involved in the reach of RTIA2005
are brought in, eg. Defence and internal functioning of the judiciary—which are
in purview of the Article 19 (2) of the constitution, eg. Security of the state,
public order etc. are principled enough to be not to called arbitrary or in other
words a checkerboard.
Appreciating the distinction between, checkerboard and universality/generality
is to come to the yardstick of “principle” involved in the question. If it is there,
then, it’s the universal, but it’s checkerboard if it’s unprincipled.

Neil Bohr, a quantum physicist once said-“It is not necessary that the opposite of
truth should be falsehood.” So, if you deal with a two-truth situation, then ho to go
about it. This statement captures the essence of appreciating a very valuable
facet of legal study.

Implications of the above stated ways of thinking about law and punishment
1. Legality Principle;
2. Opportunity Principle.
- Laws must be universal and general

Keep one thought in mind: there is a principle behind the “law.”

Positivism and Nauralism highlight the ideational sources of law.

Legislation exemplifies the institutional sources of law.

Why is ideational source of law much more being looked at when

interpreting and applying the law, the positivists say that validation goes
into the institutional source-based law gives the law the identity of being
called a law. This commonality with scientific positivism is that legal study
requires some level of certainty which is validated: for example: Is it law?
Answers is that “Yes, because it has been assented to and notified into the
gazette.” In positivism, we say that anything which comes from a DFA is
law. It can be said that this validation is mutually agreed upon and it is
verifiable by all or any of the persons. Positivism stresses/lay more
emphasis only upon the institutional sources of law. Eg. The wool-mark
example of testifying the quality of woolen items. How positivist thinking
looks to customary law: take into account the restricitions imposed on
culture in terms of criterion laid down so as to recognize the custom as a
“law.” The ending statement in this case should be “ All customs fulfilling
the eligibility requirements as laid down time to time, is a law, examples of
these restrictions is like compliance to public policy, constitutionalism etc.”
Example: All grass is green. Distinguish between grass and hay in this case.
Everything which is not green, is not grass.
Sometimes, custom itself becomes a law in the enactment, and is not contingent
on deciding as per the laid criterion. On its own, custom is nothing. Example: The
custom of “Satapadi” enshrined into the Hindu Marriage Act, 1956.

Positivism (lit.) means that you posit something and prove the same.
Empirical evidence: The evidence we collect in the field i.e. 1) tangible and 2)
verifiable.

Difference between: Positivism and Natural Law: Positivism stresses the entire
systematic course of validating and verifying only to the extent of the
institutional source of law. Whereas, in natural law, even according to positivist
thinking something can be a law, in natural law, it might not be a law by its virtue
of not being in accord with certain values and principles, eg. Fairness, morality
and justice—it will NOT be called a law. Thus, natural law, principles have
evolved and changed over different periods of time in history.

Positivists are he “is” people, whereas the natural lawyers are the “ought to be”
people.

Natural law is different from naturalism.

Tension between positivism and natural law is resolved.

 Legislature is the primary law-making institution.
Tension between legislature and judiciary—Indian example of the Right to
Property, (basically the concept of judicial review) and a contemporary one will
be on the debate on the Judicial Appoints Commission Act, 2014.
What is the role of the courts in “making” law?

“The Basic Structure is not within the constitution, but something that informs
the constitution.
The pure division/ separation of powers within the different domains of the
government (legislature, executive and judiciary)
Legislature also adjudicates—by administering its own rules as to its
contempt, brach of privelege.
Executive also makes laws—most of the bills introduced are government/
minister’s bills.
Judiciary also makes laws—by writing judgeemnts, case laws, for
example—the guidelines laid down in Vishakha.

Should constitution be seen in the present context, or as having its roots in the
past? Present? Who amends? Only the legislature? Or even the judiciary.

Adjudication can also take a positivist side—example: During the Emergency

(1975-77) the right to approach the courts (habeas corpus) Article 21, as not
provided. They told that article 21 is the sole repository of the said writ, whereas
HR Khanna took a dissent in this case. They gave the emergency enactment
totally literal kind of a treatment and did not give it any side of natural
law—whereas the dissent of Khanna tried to do that—this brought a bad name
to the judiciary.

Legislation can also take a natural law side.

Positivists do not care about values in the law—the absence of values doesn’t
invalidate, but its presence is also immaterial. Thus, they only look
shortsightedly—only till the institution.

Ronald Dworkin, The Model of Rules, Excerpts related to Positivism, Rules,

principles & Policy, and Concepts of Law

1.) Law as a command (Austin)—What you shall do and what you shall not
allowed to do? That is, prohibitions and permissions. What does this
definition captures and what does it misses out on? This definition fails to
capture the intricacies like adjudication—what is it that I am required to
do? This adjudication Is not the substantive part of the “command” but a
tool to enforce the substantive part. For a sanction to be imposed, there is
a need to prove that the breach of the command took place. Thus, this
definition is very watertight and narrow, as it does not include the
implementation and determination part of the facts of the case. In the
next point, you’ll understand how point 1 is a primary law, and how and
why do we need a secondary rule to put into action the primary rule.
 Another drawback is that it does not include the way we change the law,
i.e. Rules of Change. If we had only this system, then how did this become
functional in its nature, another limitation of this definition, it fails to
justify the “Rule of Recognition,” i.e. whether or not this is a legally valid
rule—justifying this through its source. Command by putting gun on your
head: “Give me the money.” –Do I have an obligation or I’m obliged to do
this. Paying tax is an obligation, and you are obliged by the law of physical
force—, but is NOT a command of law. This is a very popular and
dominant notion of what law is? This definition is NOT irrelevant but
incomplete.
2.) Primary and Secondary Rules—(H.L.A. Hart) Primary laws provide an
incomplete understanding of the laws. He says that Austin failed to
capture the “secondary rules.” Force can come from various sources—but
that does not account for it to be legal. In some laws, one may be both,
obligated and obliged to obey the law. Hart told that point 1 definition is
incomplete.
3.) Rules, Principles standards—Riggs versus Palmer (In civil law, it was not
assumed that a heir would go and kill his/her ancestor to get the will
executed. Using this Dworkin highlights the distinction between rules and
principles—that no person can be allowed to take advantage of the wrong
committed by him—is the person coming to the court without clean
hands—sometimes there occurs a conflict between the rules and principles)
So, when here, there was no law, you went back to the principles (of basic
human existence) to deal with a situation regarding which no law exists.
Principles are more open-texted, whereas rules are much more specific. If
your legal architecture would consist only of the rules—with specific
bounds, you realize with Riggs (it hurts all our consciences—that just
because there’s no rule to it, it should be done) what do you miss on.
Rules are non-negotiable sort of directions. Dworkin moves a step ahead
of Hart insofar as moving beyond the scope of rules—he includes
standards, principles, and policies as well.
 Distinction between a rule and a principle—read pg. 24 top 2 pts.
 Distinction between a rule and a standard

The point of either including principles in rules or treating principles as

extra-rules, then we in fact, are dealing either the discretion element
involved in terms of adjudication—the interest in treating these as extra-
legal, we stress upon the fact hat each and every case is different.

Why principles should not be included into the rules?

Because a principle is NOT a narrow tight function—the application of
principle will vary on a case-by-case basis. The murderer was disqualified
on the basis of a principle—the act outrages our sense of “justice.” The
point from wherein we move beyond the law, there it is that the principle
comes into action. As the law evolves, the principle could also take the
shape of a rule. The principle should and usually is, NOT in conflict with
the rule in force. So, in effect, H.L.A. Hart says that Dworkin misses on
principles and standards
 Why do we depart from the rules to the principle?
We make rules in advance, i.e. in prospective, so that people could shape
their behavior to act in accordance with the law, because, if you don’t
know the rule, how would you comply with the rule? Because, we can’t
anticipate what kind of a situation could emerge—which might require
the bringing in the principles. Example: how a man entered into a contract
with another who offered himself to be eaten (cannablism is not covered
under the IPC), but the principles of human existence do not allow for
such a phenomenon to take place.

There is a constant intersection between rules and principles.

4.) Tension on the question of legality and validity;

Read: Riggs versus Palmer (Using this Dworkin highlights the distinction between
rules and principles—that no person can be allowed to take advantage of the
wrong committed by him; Had principle not been invoked in the case, then, the
sanctitiy of life, and “will not kill” and the kind of domino effect it will have on the
society—and how the social contract is breached—which is at the bedrock of what
a “law” is. There is logic behind the principle—which is a “deeper” thing—which
goes against the positivist stance of all law is enacted law. We operate it as a “rule
of law” society.)

If the “rule of law” is only about the rules, then what is it that we are
permitting?

Here we talk about what the judge should do, how the society views
adjudication, not the lawyer for the murderer heir would do?

“Legislation is prospective, Adjudication is always retrospective.”

Analogy between sole heir murderer case and “R” policy of NALSAR regarding
submission of projects—“coming with clean hands.”

Rules Principles Standards

General norms Back-up/ contingent Open-textured part of a
rule
Determinate In-determinate Socially embedded
Well-defined Contextual
An “is” concept An “ought” concept

Text of the rule is not the only factor—the judge will look into the principle
behind it to interpret the said rule. The content of the standard is often rule-
based, i.e. you do this and that, and comply with these requirements—you will be
awarded BIS mark.

Differentiate between principle and standard: Principle can kick into any
situation, but a standard is placed into a particular rule. Principles are stand-
alone concepts…and standards evolve throughout the history of adjudication.
Whereas, a principle in itself, always exists there in the system, it has a temporal
and spacial universality component involved which cannot change overnight.
You more and more advise being given to you.

Moving from intrinsic to the instrumental dimensions of life—is/was it a

principle-based change? For example—collectivism paved the way for
individualism—increase in competitiveness—this will not be seen as a dramatic
principled change. You can say that self-seeking is permissible, competition is
desirable, but to take advantage of friendships is still wrongful.

L.L. Fuller, The Morality of Law (1969)

The most important thing one should return to after reading the text n parts is:
YOU MUST HAVE A LAW.
Starts with a fable-writing by Fuller

How not to make laws?

Failure to bring out clarity
Failure to ensure constancy
Usually not retrospective

In “How not to make laws?” Fuller talks about certain pit falls to be avoided
while making a “good law. ” But in terms of making a good law, he says that
merely guarding against these pit falls will not result into a good law. The
morality of duty and morality of aspiration aspects are crucial to this.

1) Morality of duty—is to Publicize (it is not an aspiration—you just have

to do it.)
2) Morality of aspiration—all other 7 pointers—even if the lawmaker fails
to achieve these goals, the outcome will be called a “law,” –pragmatism
requires these open-ended processes to function as they do—and people
can follow these.

The first problem committed by Rex: To repeal the existing laws—to start on
a clean slate. Thereon, Fuller argues how even a bad law is better than no law. Go
back to Dworkin’s stress on the need to have principles and standards apart
from rules.

1) Inner morality—the rules as to how to make rules—should be an

aspiration and not a duty—this is internal to the craftsmen, i.e. the
makers of the laws or to the system;
2) External morality—the “substantive” part of the laws, i.e. it is explicit to
the lay-people, i.e. what you’ll ask other people to do.
3) If the inner morality is perfect, then only can the external morality reach
out to the people in the best manner possible.

Morality of Duty Morality of Aspiration

What you must/ have to do? What you try/aim to do?
Relatively easier Relatively more difficult

Why the distinction between duty and aspiration?

In the light of pragmatism and the most important point being made in the text,
i.e. you must have a law. For instance, if we make all aspirations as duties, the
law-making process would be too cumbersome and that would result in too high
a benchmark for something to be called a law—leading to lawlessness—which is
horrible—and in this way—Fuller reiterates the most important
requirement in a society—a LAW.

The most important thing about making laws is to make a law, any kind
whatsoever, i.e. to do away with lawlessness. In case of absence of law, the
people won’t be able to ‘conform’ to it. If there will be no rules, there would be a
license for “arbitrariness in adjudication.”

Rules

Seeing the
Existenceof Not
Publication Understandable possible/ Prospectivity
rules contradictory
impossible

What does publicity mean?

Getting into the gazette. It can be retrospective (retroactivity goes against an
aspiration but not a duty, thus the law is good) and there can be no question that
it wasn’t published on the retro date from whereon it comes into effect. Most of
retrospective legislation comes in cases of tax-avoidance (not tax evasion; tax
avoidance is when in a grey area situation, a prospective tax payer takes
advantage of). This was the main reason as to why:
1) Publicity is a duty,
2) Retroactivity is an aspiration, and
3) How retroactivity doesn’t violates the duty of publicity.

The most challenging problem to be countered in terms of internal morality: Is

when, the presence/ nature/ scope or any other aspect of law is uncertain-it
changes so often that compliance becomes difficult. Such a society cannot be
based on “Rule of Law”. Rex’s subjects did not disobey him—they did not
followed the law because there was no “law” (as defined through inner morality
by Fuller.)

Neil MacCormick, Institutions of Law (OUP 2007), Pp. 1-20

Legal Rules Social Rules

Formulation Mutual understanding of what is
“right”
Authority General psychology/ practice
Mostly written Universality and hierarchy
Need not be written

What does he say here?

THAT the process of rule-making is not just a monopoly of the state, kingdom or
government—but still certain norms and practices would still arrive to bring in
social ethos and peace. Contrast is what should be appreciated. In the case of
absence of laws, people will sub-consciously start “norming” their behavior in a
non-institutional manner.

When he says that there are exceptions to queue behavior, he wants to stress
that in the absence of rules, there is not just construction of rules, but also come
up with exceptions to the “norm.” Example: Crossing the road as a pedestrian as
well as motorists—the very process through which implementation of rules
occurs. People have their own interpretation of such rules, which will further
lead to evolution of these rules. Example: Norms of ragging amongst
batches—wherein every batch decides on the dynamics of ragging.

At the very core level, we are trying to understand how people have the genius
capacity and anticipatory behavior.

Other points made:

1) How these norms precede rules;
2) How these norms and customs should be taken into account while people
engage in making of the rules.
3) Complementarity to the legal structure.
4) Law in books vs. Law in action—The subject of RealismThus, as law
people, we need to
5) Social interaction generates norms
6) There is a practice, and there is a further expectation that the said
practice shall be followed (this is how it has to be done) for a due course
of time—it is then, that the normative becomes the “normative order.”
7) If you keep getting people do on a continuous base, then it is made a part
of your practice. If we want something to happen, we don’t necessarily
needs to be in a so-called manner “legislated”.

Relation between social norms and institutional norms

Eg. Affirmative Action Inclusion in terms of informal rule system—how this

cannot happen in the formal system.
The general notion in elite institution like ‘ours’: Is affirmative action anti-merit?
Is it iniquitous?

Eg. Distinction between the formal and the informalScindias and Nawab of
Pataudis—their status in their areas goes against the democratic spirit and
rejection of monarchy in India.
THE LEADING QUESTION:
What kind of informal system of rules (eg. inclusion of categories) is required to
work in consonance with the formal system of rules (eg. reservation)?

Realism (Holmes, The Path of Law, HLR)

This school of thought will usher in a critical temper in the reader towards all
other schools.

The schools we’ve gone through as of now, dealt majorly with “what’s in the
book.” What realism asks to do is that you can’t just ask –“what’s in the book, but
what’s there in the book.”

In Mac Cormick, you saw, through practice, people can create law, here, we
would focus on “law in action.” Since, it deals with more with the action part,
therefore, it tends to shift from legislature to the judiciary. In Realism, law is
much more logical, pragmatic and practical than other schools have to say about
the law.

Example: That particular understanding of what is law, is in fact, reinforcing the

morality. Somebody borrowed money from you. He doesn’t returns despite
repeated requests. You go to the court for the causation of action. If you don’t go
the court within a particular period of time, then you have lost the law.

Good people don’t follow the law only because the law requires them to do—but
for their own satisfaction—from ethics, soul, sprit, morality and the sense of
justice. Whereas, the bad man will do what the law requires to do.

You need to look at what the courts actually know. Legality of court is based on
the premise that the people will go to the court.
The realists say that the way laws are implemented is the only law—rest is all
morality. While, he wants morality to be thrown out of the law but he also wants
sciences, social mores and economics to enter the law—that would make for a
more coherent body of laws.

The purpose of this reading was to shift from understanding what judges say they
do to the point of knowing what judges do with what they say.

ASKING THE LAW QUESTION:

 What are the rules of NALSAR University, eg curfew timings?
Answers:
1) Positivist: Pick up the NALSAR Act, and bye rules as framed by the
University Administration
2) Realist: Observe the environment at the university—what students do
and what the administration accepts, are the rules governing the
university. They say do not look at what judges say they do, but look at
what they do with what they say. Look at the doing, not the saying, and let
the doing do the saying-that makes more reason.
 SOME REALISM ABOUT REALISM, K. Lelewellyn (1931)

The first thing they said was that the laws aren’t being governed by the
mechanical robots—but by human beings.
In effect, when the entire thing is a biased game, it is about

They say the objectivity is the myth of positivists. It is a kind of story. Realists say
that it’s not just the law, but it is the people who frame the laws, implement the
law, and interpret the law and on the other hand, observe and obey the laws, and
that is what realists say is also a very important aspect of the study of laws.

What realists say is that even if we have objective phenomenon, we still have to
bear with the subjective interpretation of these objective aspects. A law is a law
because of the fact it is happening, not the other side—that is, happening
because it is a law. The reality makes the law, law doesn’t makes the reality.

You can’t just read the law by reading the law book, you also have to engage in
other process vis-à-vis how people behave in consideration of law.

When you say “I am a realist” and when you say that “I look upon you as a
realist”? The moment I say I am a realist, I do acknowledge that I do have a bias-
in a reflective manner—I say that I put myself also on observation.

We must tell judges, legislators, and people including ourselves that we have
biases.

Illustration:

/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/

See the above two lines

Consider the situation wherein the law is required to be a straight line. If you call
the crooked line as law—you seem to be a realist. If you say a wavy line to be wavy
and trying to be straight—is a positivist thinking. In realism, see what is, don’t see
what ought to be. If we come from these pre-conceived notions, then whatever
decisions we make, will be influenced by the same. We should describe the lines
(rules) as they are in practice (you describe it as whatever it is), not as how it
should be. I fI look at the Constitution as a positivist-I take it at face value, whereas
in realist, I shall have to acknowledge the propositions in relation to the process of
making the Constitution—indirect election, landed peoples’ representation so on
and so forth.

In the history of legal tradition, realism came up as an aftermath of positivism. It

is not that positivist aren’t biased, they are—but they do not consciously
acknowledge the proposition—realists on the other hand do accept in full spirit
their biasness towards their approach towards the study of laws. For positivists,
rules and laws have an identity of their own—they attribute uniformity,
generality so on—i.e. the way the positivist world view operates—they do not
take into account that there is a minor, a women, an old-aged person being the
subject of the law—they don’t understand that how and why the experience of
the subjects of law and their experiences are important, Realists do not create
new rules—they are just adding more to it—they focus also on the people who
obey/or not obey the laws are in as much way influencing the law as is the law
trying to influence their behavior. Don’t look at what they say they do, but see
what they do with what they do.

Distinction between the precept and the practice in the light of positivism
versus realism:

Rationalization: You have done the act, and thereafter you try to reason it and
thereby justify it. It is a post-facto justification offered.

So, in essence, what realists are aiming to do—is to call for a much more
responsible decision-making. For instance, when you say no to a request for a
favor, there can be two ways:
1) As per the rules, you cannot do;
2) As per the rules, and so and so reasons,, you cannot do.
In the second one, the recipient of the decision making, seems convinced
regarding the “responsibility” undertaken and portrayed by the decision-
maker—wherein a probable and possible opportunity of counter argumentation
is also provided which adds to the legitimacy of the decisions taken.

For positivist, law is omnipresent. For natural lawyers, it is about fairness,

morality and notion of justice. For realists, there is something more than just a
precept.

In your lived reality, the rule will come to your rescue regardless of the fact
situation, nobody takes note of a practice insofar as the enforcing agency is
concerned.

One sentence to describe:

1) Realism: Law in action/ practice than precept
2) CLS: System is not neutral
3) Feminism

Margaret Davies
Paragraph-wise analysis

1) Men have made the legal world: Men have written the law and theories
about the law…Austin’s jurisprudence is dominated by men. Because it is
men writing and theorizing, that is why the laws will be patriarchal.
Further, law has been particularly made by educated white men.
2) Law reflects male values: Cultural influence as to inherently male values
vis-à-vis reasonableness, objectivity, independence, autonomy and
neutrality and so on. In Tort Law, does changing the terminology alone
from ‘reasonable man’ to ‘reasonable person’ suffice the demands of
 feminist legal perspective? Reasonableness is essentially a middle path of
sorts, not at all of being most punctilious. Are the requirements of
reasonability exactly the same you expect from both men and women? Or,
is it gender-neutral? Constitution Article 15, how the word “only” has been
read into practice—how sex plus discrimination has been declared
permissible under the law. J S Mill’s dedication of his book ‘On Liberty’ to
his wife-do read it. We deal with generalizations, and merely give a
mention to ‘exceptions.’ Here, we should appreciate that how we can have
a theory that applies or makes invisible differently to different people on
the basis of their race, sexual orientation and so on. If society is saying
one thing, and law is saying another thing, then you have a tool in your
hand. If we se what happens at the workplace, take for instance maternity
benefits—men are not provided (if yes, much less) this portrays the
assumption that someone else is/will be there to carry out the said duties.
And, so women came to a gendered workplace. The words are gender-
neutral, but the context is not such. The debate around ‘text’ vs. ‘context’
analysis of feminism vis-à-vis positivism and realism. It doesn’t matters
what the text is, but more so, who reads the text, and from what particular
standpoint?
3) Generalization of male perspectives and their universal application:
It is basically, how ‘different’ and divergent people view themselves as
going contrary to the law. How feminism became ‘feminisms’ as in an
inter-disciplinary. The literary tool of alliteration being put to use when
the author talks about “mainstream malestream.”

Carol Smart, Feminism and the Power of Law (1989)

Law sees itself above other forms of knowledge.

Law sets itself apart from social order.

Smart says that—the law was made feminist because of feminist activists and
leaders, but what she does by quoting Denning is to show how he calls the new
system of laws to be doing everything itself, i.e. Law made itself feminist. If you
want to recognize that this kind of change was brought due to feminist
movements, then it creates trouble. If you say that only the law did it, then we
disregard the other sources and informal processes involved in law-making, esp.
the factors making possible for a law to come in existence. If we see this as only a
law-prompted exercise, then the understanding will come only from the law
itself, whereas if we see the context, then the chances of reading the law in a
more situation-specific way are more. Smart says that it is not just important for
the law to change, but the underpinings of the law to change. So, Smart refers to
law vis-à-vis feminism ignores the efforts put in by feminists prior to the coming
into force of that law. Denning appropriating the entire effort of the law is like
the law turning a blind eye to the factors that made a ground for change into the
law—if you have to interpret a legal text, when you believe that the entire
process of making a legal text is law itself—then a whole range of specific
characteristics of the law shall be left in the process. The soundproof rule of legal
interpretation under the British says that no extrinsic aids should be used to
interpret the statute, that is, those which come from outside the law—for
example parliamentary debates let alone movements to get it enacted. This
system of recognizing how law moulds itself will have long-term systemic
consequences.

FACT: Between positivism and natural law, there is morality that strikes a
balance.

Lastly in the text, Smart says how Denning has accorded a legal status to
something that definitely cannot be considered a law. You pretend it to be a
reality—though it might not be reality. Anything that happens in law, the legal
fraternity appropriates the credit it ought not do, because

The horrible thing is that they don’t just limit it to legal things.