RONALD DWORKIN’S THE MODEL OF RULES.

In his work on "The Model of Rules," Ronald Dworkin addresses complexities in legal rights
and obligations, often puzzling concepts in law. Lawyers commonly reference these terms to
claim or defend positions; however, Dworkin argues that our understanding of them is often
superficial. When legal professionals encounter disagreements, the core of the issue might not
be the law’s literal meaning but rather its moral implications, especially when moral and legal
standards blur. This overlap becomes evident in scenarios where judges are forced to interpret
laws in the absence of explicit statutes, such as privacy cases, challenging the stability of the
legal system.

Some legal theorists, known as nominalists, suggest that legal rights and obligations are mere
constructs that could be discarded in favor of focusing on practical social outcomes. They
critique “mechanical jurisprudence,” the idea of law as a rigid set of rules, which they see as
overly simplistic. However, Dworkin critiques nominalism, arguing that before discarding
these concepts, we need a comprehensive understanding of their role in legal discourse, given
society’s reliance on them to justify actions like punishment and enforcement.

Dworkin explores legal positivism, which posits that law consists of specific rules identified
by their origin rather than their moral content. According to positivism, law should be distinct
from other social norms, and legal obligations only arise when a valid rule exists. In cases
where a clear rule does not exist, judges are expected to use discretion, drawing on standards
beyond the established law to make decisions. Positivism values a rule’s origin over its
fairness, meaning the law’s validity lies in its procedural foundation.

John Austin, a proponent of early positivism, developed the command theory, which
considers laws as commands from a sovereign backed by threats of punishment. According to
Austin, legal obligations are simply responses to these commands. Dworkin critiques this by
noting that in modern pluralistic societies, power is not centralized in one sovereign but is
dispersed, and thus, Austin’s approach is too limited. Additionally, Austin’s theory fails to
explain why legal commands differ from those of, say, a gangster, who also issues commands
backed by threats. Dworkin argues that legal obligations are more deeply rooted in societal
values, distinguishing them from coercion alone.

H.L.A. Hart expanded on positivism by distinguishing between primary rules, which govern
behavior, and secondary rules, which set the procedures for creating, enforcing, and changing
primary rules. Hart introduced the concept of the “rule of recognition,” the foundational rule
within any legal system, which determines what counts as law based on social acceptance.
Unlike Austin’s command-based system, Hart’s approach views laws as normative, binding
people through shared social recognition rather than mere coercive commands.

Dworkin also differentiates between rules and principles, noting that legal rules operate on an
all-or-nothing basis: if the conditions of a rule are met, it applies without exception.
Principles, however, provide direction without dictating a strict outcome, allowing judges to
weigh and balance principles in complex cases.
Principles, Dworkin argues, hold weight and are sometimes binding on judges, guiding them
even when no specific rule applies. Positivists believe that without a rule, judges exercise
discretion, effectively creating new law. In contrast, Dworkin contends that judges, even in
hard cases, are not creating law freely but are instead guided by binding principles, as
demonstrated in cases like Riggs v. Palmer and Henningsen v. Bloomfield Motors. This view
underscores Dworkin’s belief in the fundamental role of principles within the legal system,
shaping legal obligations and limiting judicial discretion.

The Politics of Law and Society

The text examines the interplay between law, society, and power, arguing that law is not an
isolated system of abstract principles but a reflection of social values, political power, and
economic interests. Law functions as a societal tool that shapes behavior and often serves the
interests of dominant social classes. Through the creation and enforcement of laws, those in
power can maintain control, suppress opposition, and reinforce their own agendas. This
challenges the notion of legal neutrality, as laws are created and interpreted by individuals
with their own biases, influenced by the social and political contexts in which they operate.

Lawyers and legal institutions also significantly shape the law. Lawyers actively interpret and
influence legal norms, which reinforces societal standards. Courts, in turn, are not isolated
from political pressures, and their decisions often reflect the prevailing political climate. The
legal realist perspective argues that judges’ decisions are shaped by personal biases and
external pressures rather than an impartial application of the law, challenging traditional
views of legal objectivity.

While law often reinforces the status quo, it can also be a force for social change. Social
movements, such as those for civil, labor, and women’s rights, have leveraged legal strategies
to advocate for reform. However, legal reforms frequently face resistance from established
institutions, and even when successful, they often fail to significantly alter underlying social
inequalities. Legal reforms may address surface issues but do not always address the root
causes of social problems like systemic racism or economic disparity.

The text discusses how class, race, and gender biases manifest within the legal system.
Wealthy individuals often benefit disproportionately from the legal system due to greater
access to resources like high-quality legal representation. Racial minorities face
discrimination through practices like racial profiling and unequal sentencing, which
perpetuates cycles of inequality. Gender biases have also historically shaped legal norms,
enforcing patriarchal structures in areas such as property rights and reproductive laws.
Feminist critiques of the legal system highlight how these laws continue to reinforce gender-
based disparities.

Legal formalism, the belief that laws are applied objectively without influence from external
factors, is critiqued as unrealistic. Legal realism, on the other hand, views the law as
influenced by societal and political factors, and judges’ decisions as shaped by personal
beliefs and broader political climates. This shift has encouraged more critical examination of
the law, emphasizing its connections to society and power.

The role of law in supporting capitalism is also examined. Property and labor laws are
structured to favor capitalist interests and reinforce economic inequality by protecting private
property rights and limiting workers’ power. Property laws often favor the wealthy,
consolidating resources and dispossessing marginalized communities. This is seen in
historical examples like colonial land seizures and modern issues like gentrification, where
laws have served to concentrate wealth and control in fewer hands.

Traditional legal education is often conservative, reinforcing established legal structures

rather than challenging them. By focusing on technical skills over critical analysis, legal
training often limits students’ engagement with social justice issues. The Critical Legal
Studies (CLS) movement pushes back against this approach, arguing that law is deeply
intertwined with political and social dynamics, and advocates for an educational approach
that encourages questioning the legal system’s role in perpetuating inequality.

The text concludes by presenting law as a space of political struggle, where competing social
forces and ideologies battle to shape society. Social activists and reformers use the law to
challenge hierarchies, while conservative forces resist such changes to maintain existing
structures. Activism is essential in pushing for legal reform, though changes are often slow
and met with resistance. The text calls for a shift in legal education and practice, urging a
more critical approach that promotes social justice and recognizes law as a dynamic arena for
pursuing equality and democracy.

ASKING THE LAW QUESTION

Margaret Davies’ Asking the Law Question introduces legal theory by examining different
approaches to law, known as legal theory, jurisprudence, and legal philosophy. The book’s
primary goal is to uncover not only the explicit ideas in legal theories but also the hidden
assumptions that reflect broader social views. Davies employs a critical approach to uncover
these assumptions and reveal how they shape both law and society.
Core Concepts in Legal Theory

The book explores legal theory through unique lenses. For instance, Davies argues that the
perceived "boring" nature of jurisprudence might actually reveal profound truths, drawing on
Kierkegaard’s view of boredom. She uses metaphors like “the earth is flat” to illustrate how
law organizes our perception of the world, even though this perception may not fully reflect
reality. Legal theories also evolve, with some approaches viewing law as dynamic rather than
static, countering traditional rigid frameworks. Critical movements like Critical Legal Studies
(CLS) challenge conventional legal theories, highlighting how legal structures often benefit
those in power while excluding marginalized voices.

Philosophical Influences and Frameworks

Davies draws on existential and feminist ideas to enrich her critique. For example, Sartre’s
belief in creating meaning through actions parallels how laws are crafted and can change.
Feminist philosopher Hélène Cixous argues that theories often oversimplify life’s complexity
but can still offer insight if we avoid treating them as ultimate truths. Davies also applies
Kant’s theory of perception to explain how legal structures influence society, just as our
mental frameworks shape our understanding of reality.

Critical Perspectives and Legal Pluralism

Davies critiques the boundary between law and society, promoting a view known as legal
pluralism. This perspective holds that multiple legal systems—such as state and religious
laws—can coexist, reflecting the influence of social and cultural norms. Davies also
highlights that legal theory impacts real life, influencing how laws are interpreted and how
people understand justice and fairness.

Feminist and Critical Legal Theory

Feminist legal theories examine how traditional legal systems have marginalized women and
other gender minorities. Liberal feminists advocate for equal rights within existing
frameworks, while radical feminists believe the law is inherently patriarchal and argue for a
complete transformation of society to achieve true gender equality. Intersectional feminism
highlights that gender, race, and class intersect to shape unique experiences of discrimination,
arguing that laws must consider these intersecting identities for justice to be achieved.

Race, Colonialism, and Legal Theory

Davies explores the impact of race and colonialism on law, showing how legal systems have
historically used race to categorize and control, especially in colonial settings. For instance,
doctrines like terra nullius justified land seizure from indigenous populations by declaring it
“empty.” Critical Race Theory (CRT) argues that racism is not simply individual prejudice
but is embedded in legal systems, perpetuating inequality through policies like mass
incarceration. Postcolonial thinkers advocate for either reforming or replacing legal systems
to reflect local values and serve marginalized communities better.

Environmental Legal Theory in the Anthropocene

In discussing environmental law, Davies addresses the Anthropocene, the era in which human
activities significantly impact the planet. Traditional anthropocentric legal systems prioritize
human needs, often leading to environmental harm. Ecocentric legal approaches, however,
recognize the intrinsic value of ecosystems, granting legal rights to nature itself. Concepts
like “Earth Jurisprudence” emphasize living in harmony with nature, advocating for legal
systems that align with ecological principles, while “Wild Law” argues against the
exploitation of nature and supports recognizing the agency of non-human life in shaping legal
outcomes.

Davies’ work provides a comprehensive, critical view of how legal theory interacts with
societal structures, reflecting a call to adapt law to address complexities in gender, race,
environmental ethics, and power dynamics.

CIVIL LAW AND COMMON LAW AND ROMAN LAW

Roman law, which reached its peak during the rule of Emperor Justinian in the 6th century,
laid the foundation for modern civil law systems. Justinian's codification of Roman law,
known as the Corpus Juris Civilis (Body of Civil Law), was a significant effort to
consolidate, organize, and make Roman law accessible and authoritative. This codification
included four parts: the Institutes, Digest, Codex, and Novels. Together, they formed an
organized system that governed legal practices and became a central reference for students
and jurists in the Roman Empire and beyond. The Institutes specifically served as an
educational text, introducing the fundamental concepts of Roman law and giving students a
structured overview.

One of the hallmark features of Roman law, especially as presented in Justinian’s Institutes,
was the division of law into public and private spheres. Public law dealt with matters
concerning the state, such as administration and criminal law, which protected society’s order
and welfare. Private law, however, focused on the relationships between individuals,
including property rights, contracts, and inheritance. This distinction allowed Roman law to
effectively address both individual needs and societal concerns, creating a flexible yet
comprehensive framework that has had a lasting impact on civil law systems globally.

Within private law, Roman law was further divided into three major categories: persons,
things, and actions. The persons category covered the legal status of individuals, including
citizenship, family relationships, and personal rights and obligations. This classification was
vital in defining who could legally engage in contracts, own property, or exercise specific
rights. The category of things encompassed laws on property and possessions, setting clear
guidelines for ownership, transfer, and the handling of both movable and immovable assets.
Lastly, actions were the procedural laws that enabled people to seek justice and enforce
rights, covering how disputes could be addressed within the legal system. This systematic
approach ensured that each area of law was logically organized, distinguishing between the
objects of legal regulation (persons and things) and the methods for resolving disputes
(actions).

Roman law’s structure, particularly its emphasis on logical organization, was influenced by
Greek philosophy, which prized systematic thinking and clarity in knowledge. By adopting
this intellectual approach, the Romans developed a legal system that was not only functional
but also coherent, making it easier for students, jurists, and citizens to understand and
navigate. The logical flow from concept to application made Roman law both a practical and
intellectual pursuit, and this scientific foundation remains one of its most lasting
contributions to legal thought.

Roman law also made important distinctions in its treatment of property and obligations,
further structuring the field of private law. Property in Roman law was divided into corporeal
(tangible, physical assets) and incorporeal (intangible assets, such as rights and obligations).
Corporeal assets included physical property, such as land, buildings, and goods, while
incorporeal assets encompassed rights like inheritance and intellectual property. Furthermore,
Roman law distinguished between real property (immovable assets like land) and personal
property (movable assets like goods), a distinction that continues to be relevant in
contemporary legal systems.

In terms of obligations, Roman law classified them into four main types: contracts, quasi-
contracts, delicts, and quasi-delicts. Contracts represented mutual agreements made willingly
between parties, creating obligations that both were bound to fulfill. Quasi-contracts, by
contrast, covered obligations that arose without explicit agreement, such as when one party
received an unintended benefit from another’s actions. Delicts were wrongful acts that caused
harm, akin to modern torts, while quasi-delicts covered actions that did not fit neatly into
either contracts or standard wrongs but still required restitution. This categorization of
obligations established a robust structure for handling various types of liabilities and
agreements, providing the foundation for civil obligations that remain in use today.

Roman law’s approach to actions allowed for a further distinction between in rem (real
actions) and in personam (personal actions). Real actions asserted rights over tangible or
intangible things, such as property or claims to ownership. Personal actions, in contrast,
involved claims against individuals, often related to fulfilling an obligation. This distinction
facilitated clarity in legal proceedings, helping to define the scope and focus of claims. Some
cases involved mixed actions, where claims included both property rights and personal
obligations, such as in disputes over shared property or dividing common assets. These
divisions in Roman law, especially regarding property, obligations, and actions, have
profoundly influenced civil law and serve as fundamental categories in contemporary legal
systems worldwide.

In contrast to Roman law’s structured approach, English common law developed from a
highly procedural system that emerged after the Norman Conquest in 1066. This legal
framework was initially focused on resolving feudal disputes, especially those involving land,
as land ownership was central to wealth and power in medieval England. The common law
system grew primarily from the writ system, which involved formal orders issued by the king
to courts to address specific disputes. Each writ addressed a particular type of legal issue, and
choosing the correct writ was crucial for a successful legal claim. This procedural focus
emphasized remedies and actions over rights, leading common law to evolve as a system of
forms rather than rights. Unlike the Roman emphasis on systematic classification, English
common law focused on practical solutions, creating detailed rules for each type of action
based on precedent.

By the 13th century, the common law system had become firmly procedural, with
standardized writs limiting the creation of new types of actions. Any new writ required
parliamentary approval, which further solidified the procedural emphasis in English law. The
approach contrasts with Roman law, where substantive rights took precedence over
procedure, leading to a civil law tradition centered on rights and obligations rather than
procedural forms.

Henry de Bracton’s 13th-century treatise, De Legibus et Consuetudinibus Angliae, represents

one of the earliest attempts to systematize English law using Roman principles as a model.
Bracton sought to categorize English law within the Roman structure of persons, things, and
actions. While he managed to introduce some Roman concepts into English law, he struggled
to align English legal procedures with Roman classifications fully. For instance, English law
permitted personal actions for claiming movable property, blurring the lines between property
and obligations that Roman law kept distinct. Bracton’s categorization of “mixed actions,”
which dealt with disputes involving both property and personal claims, illustrated the
complexities in English legal practice, which often did not align with Roman legal theory.

Following Bracton, the influence of Roman law on English common law began to decline.
The legal education of English lawyers in the Inns of Court emphasized practical skills over
theoretical classifications, with practitioners becoming more focused on the procedural
aspects of the law. The late medieval period witnessed the evolution of actions like trespass
and assumpsit, the latter of which became the main action for enforcing informal contracts.
Originally a tortious action, assumpsit evolved into a flexible remedy for contract
enforcement, reflecting common law's adaptability to practical needs. This procedural
evolution highlighted the distinctiveness of common law, which prioritized remedies through
specific actions rather than substantive rights, as seen in the Roman system.

In conclusion, Roman law established a systematic, rights-focused framework that

emphasized logical classification and substantive law. This approach influenced modern civil
law systems, especially in continental Europe, where the division into persons, things, and
actions continues to shape legal practice. English common law, however, developed as a
procedural system with a focus on actions rather than rights. Attempts by early English
jurists, such as Bracton, to incorporate Roman concepts faced limitations due to the practical
nature of common law, which prioritized procedural forms and flexible remedies over
theoretical consistency. Consequently, common law evolved along a separate path from the
civil law tradition, with each system reflecting its distinct historical and cultural roots. Today,
both legal traditions retain elements of their origins, with civil law systems preserving Roman
classifications and common law systems maintaining their focus on procedural remedies,
creating a rich and varied legal landscape.

THE INDIAN CONSTITUION OXFORD HANDBOOK

Justice Ruma Pal’s analysis in The Indian Constitution Oxford Handbook emphasizes the
enduring importance of the separation of powers in modern governance, especially in judicial
appointments, maintaining judicial independence, and preventing executive overreach. She
contends that power should be a means for effective governance rather than an entitlement.
The Constitution’s division of power prevents authoritarianism by assigning tasks to
institutions best suited for them. The classic theory of the separation of powers from
Montesquieu warned against tyranny by concentrating government power in a single body.
His advocacy for legislative, executive, and judicial specialization inspired many
democracies, including India, to adopt a similar framework aimed at balance and oversight.

Theories of Separation
In Montesquieu’s rigid model, as in the United States, each government branch acts
independently but with checks on each other’s authority to prevent domination. For example,
the U.S. Congress can override executive decisions, the President can veto bills, and the
judiciary can review legislative or executive actions for constitutionality, ensuring mutual
accountability.

The Westminster model, in contrast, has a less strict separation of powers, as in the UK,
where Parliament is supreme. The British Parliament’s laws typically aren’t subject to judicial
review. India uses a flexible version of this model, limiting parliamentary supremacy within
the boundaries of a written Constitution.

Separation of Powers in India

The Indian Constitution follows a more flexible separation of powers to allow cooperation
between branches. The executive, being part of the legislature, requires ministers to be
members of Parliament. However, the judiciary holds significant authority in maintaining
balance through judicial review, allowing it to nullify unconstitutional laws or executive
actions under Article 13 of the Constitution.

Indian governance shows functional overlaps, such as the Election Commission and
Comptroller and Auditor General (CAG), which, while executive bodies, operate
independently of the government. The judiciary’s power often intersects with the legislature
and executive, as it interprets statutes, enforces laws, and reviews executive actions for
constitutional validity. However, this approach has led to inconsistent interpretations by
Indian courts regarding the boundaries of each branch’s powers.
Emergence of the Regulatory State

TV Somanathan discusses the regulatory state's development, which now forms a fourth
pillar of governance in addition to the classical executive, legislative, and judicial branches.
Traditional government departments, or the administrative state, primarily implement policies
within legislative frameworks. In contrast, independent regulatory bodies, or the regulatory
state, oversee specific technical and economic matters, such as finance or
telecommunications, and operate independently to ensure efficiency and specialized
governance. Examples include SEBI (Securities and Exchange Board of India) and TRAI
(Telecom Regulatory Authority of India), which require expertise beyond traditional
government functions.

Administrative Structure

In the Union Government, ministries are led by Cabinet Ministers, supported by State
Ministers and Deputies. Each ministry comprises departments led by a Secretary, often from
the IAS, as the top bureaucrat. The Prime Minister’s Office (PMO) is central to the
government’s administrative coordination, bridging the Prime Minister and various
ministries.
State administrations mirror this structure, with Chief Ministers heading the executive branch
and the Chief Secretary managing the state’s bureaucracy, akin to the Cabinet Secretary’s role
at the Union level.

Regulatory Structure

Independent regulatory bodies were created to address complex issues needing impartial,
sector-specific expertise. These bodies make decisions on issues like telecommunications and
finance autonomously, beyond day-to-day government interventions. They include regulatory
tribunals that serve quasi-judicial roles, allowing businesses and individuals to contest
regulatory rulings. While intended to operate independently, some regulatory bodies still face
ministry influence, though their core purpose remains autonomous decision-making.

Constitutional Foundation for Regulatory Bodies

Articles 53 and 154 enable the delegation of executive powers, providing constitutional
grounding for regulatory bodies’ creation. Executive power, broadly defined, includes any
non-legislative or non-judicial authority. Regulatory bodies’ powers often include delegated
legislation, allowing them to set sector-specific rules independently, though this raises
concerns about maintaining the separation of powers.
Conceptual Overview of the Regulatory State

The need for sector-specific knowledge to govern increasingly complex areas led to
independent regulatory bodies. These entities bring technical expertise, as traditional
executive and judicial branches may lack specialized knowledge in sectors like finance and
telecom. Their independence also shields them from political pressures, allowing decisions
based on technical needs rather than political agendas.

Concerns with the Regulatory State

Despite these advantages, the regulatory state faces challenges, including legal ambiguity and
accountability issues arising from the blend of executive, judicial, and legislative functions
within regulatory bodies. The judiciary plays a critical role in overseeing these bodies, adding
accountability through the ability to review regulatory decisions.

One prominent risk is regulatory capture, where regulators prioritize industry interests over
public welfare. This issue has surfaced in sectors like telecommunications, where industry
influence may undermine impartial regulation. Additionally, regulatory processes often lack
transparency, with influential interest groups disproportionately affecting decisions. To ensure
regulatory bodies serve the public interest, increased transparency and public involvement are
necessary.

In summary, while the Indian Constitution embraces a balanced and flexible separation of
powers, the emergence of independent regulatory bodies represents a shift from traditional
structures. These bodies aim to bring technical expertise and independence to governance but
face challenges related to accountability, transparency, and potential industry influence.
THE STRUCTURE OF AN ACT

1. Evolution of the Structure of Acts

1.1 Historical Context
Early Acts: Originally, Acts of Parliament were drafted as long, continuous blocks of text, with
no divisions, sections, or subsections. This style made it difficult for readers to follow or
reference specific parts of the law.
Transition to Structured Acts: Over time, the need for clarity led to the division of Acts into
sections. The French legal system, which used a structured format from its inception,
influenced this shift. Other European countries, including the UK, later adopted similar
practices.

1.2 Jeremy Bentham's Critique:

Resistance to Division: The idea of breaking up an Act into sections was controversial. Jeremy
Bentham, a noted legal philosopher, commented satirically on this resistance. His critique of
the opposition described it as akin to a "Jacobean plot," emphasizing that many people felt that
dividing the text into sections and headings undermined the elegance of the English language.

1.3 Impact of the Structured Acts:

Improved Clarity: The adoption of sections and articles allowed for easier navigation through
legal texts. Readers could refer to specific sections of an Act without having to sift through
pages of uninterrupted text.
International Influence: This development had global significance, influencing the drafting
styles of legislatures worldwide, including former British colonies like India, which adopted
similar structured formats for their laws.

2. Components of an Act
According to Symonds, an Act consists of several critical components, each serving a distinct
function:
2.1 Title:
Purpose of the Title: The title of an Act must clearly express the Act’s subject matter and its
scope. It acts as a summary, helping readers understand the law's intent at a glance. For
example, the Indian Penal Code, 1860, is straightforward, indicating that the Act deals with the
country's penal laws.
Clarity and Unity: The title must reflect the Act’s internal consistency and the unity of its
provisions. If an Act covers multiple subjects, its title should be broad enough to encompass
all aspects.
2.2 Expression of Enacting Power:
Formal Authority: This component refers to the language used to signify that the legislative
body has the authority to enact the law. It is a crucial part of the Act because it establishes the
legal basis upon which the statute is enforced.
Example in Indian Law: The phrase “Be it enacted by Parliament in the ... year of the Republic
of India” is a standard expression used in Indian laws, indicating that the law derives its
authority from the Indian Parliament.
2.3 Body of the Enactment:
Substantive Provisions: This is the core of the Act, containing the actual legal rules, obligations,
and rights that the Act aims to establish. Each section of the body addresses a specific point or
regulation within the overall scope of the law.
Logical Arrangement: The body of an Act should be arranged logically, starting with general
provisions and moving towards more specific clauses. This structure ensures ease of
understanding and interpretation.
2.4 Adjuncts:
Preamble: The preamble provides the reasons for enacting the law. It often includes a statement
of the objectives and the circumstances that led to the creation of the Act. However, preambles
are not always included and are typically used only for laws of significant constitutional or
policy importance.
Example: The Constitution of India begins with a preamble that outlines the founding
principles of justice, liberty, equality, and fraternity.
Provisos: These are clauses within the Act that introduce exceptions, conditions, or
qualifications to the main provisions. Provisos limit the general applicability of certain
sections.
Example: A taxation law may include a proviso that exempts certain income brackets from
taxes.
Schedules: These are appendices or additional sections at the end of the Act that provide
detailed lists, forms, or procedural rules necessary for the enforcement of the Act. They are
used when the law requires further explanation or elaboration.
Example: The Indian Constitution contains several schedules detailing forms of oaths, powers
of the President, and other essential matters.

3. Citation and Preamble

3.1 Citation of Acts
Symonds' Criticism: In earlier times, laws were cited using the regnal year of the monarch in
power, meaning each law was referred to by the year of the reign of the monarch when it was
passed. For example, the law might be referred to as 8 & 9 William III c.20. This system was
cumbersome because it was challenging to track laws across different reigns.
Blackstone’s Commentary: William Blackstone, a famous British jurist, mentioned that even
older statutes were cited by the place where they were enacted. For instance, the Statutes of
Merton or Statutes of Marlberge were named after locations, adding further complexity to
citations. Modern Citations: Over time, short titles became standard practice. These titles, like
The Companies Act, 1956, allow easier reference to statutes.
3.2 Purpose of the Preamble
Montesquieu’s View: The French philosopher Montesquieu advocated that legislators should
provide clear reasons for enacting laws, believing that legal changes should always be justified.
However, he noted that preambles often fail to provide full or truthful explanations.
Modern Perspective on Preambles: In contemporary legal drafting, preambles are generally
used sparingly. While they were once common in Indian statutes, they are now mostly reserved
for laws of significant importance. For example, constitutional amendments or laws affecting
fundamental rights may still include preambles to clarify the legislature's intent.
3.3 Surplus Preambles:
Redundancy and Confusion: Preambles that merely repeat the long title or provide vague
justifications can introduce confusion or unnecessary repetition in an Act. This has led to the
minimization of preambles in most modern statutes.
Example: Many early Indian laws included preambles that were effectively redundant, serving
no practical legal purpose. In contrast, modern laws tend to exclude preambles unless they
provide essential context.

4. Enacting Formula
4.1 The Enacting Formula in Various Jurisdictions
UK Formula: The traditional British enacting formula includes a formal invocation of the
monarch and Parliament, such as: “Be it enacted by the King’s (or Queen’s) Most Excellent
Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled...”.
Indian Enacting Formula: In India, the equivalent formula is simpler: “Be it enacted by
Parliament in the ... year of the Republic of India as follows”. This reflects India's status as a
republic and establishes that the law derives its authority from Parliament.
4.2 Simplification Debate:
Some legal scholars argue that the enacting formula could be further simplified to “It is hereby
enacted”. However, this change has not been widely accepted because the current formula is
considered to have a solemn, formal tone appropriate for legislative texts.

5. Structure and Arrangement of Acts

5.1 Short Title:
Definition: The short title is the brief, easily recognizable name of the Act used for citation
purposes.
Example: The Indian Penal Code, 1860, or The Banking Regulation Act, 1949.
5.2 Long Title:
Explanation: The long title provides more detail about the scope and purpose of the Act. It
should accurately summarize the Act’s content but should not delve into unnecessary specifics.
Example: The Transfer of Property Act, 1882, which describes the rules governing property
transfers in India.
5.3 First Section:
This section typically includes three elements:
Short Title: The brief name of the Act.
Extent of Operation: Specifies the geographical reach of the law. For example, some laws may
apply only to certain states or regions, while others have national applicability.
Commencement Date: States when the Act will come into force. Some laws come into effect
immediately, while others may have a delayed or staggered commencement.
5.4 Application Section:
Purpose: Specifies to whom or to what the law applies. This may include individuals,
businesses, or entities within certain jurisdictions.
Example: The Merchant Shipping Act, 1958, may apply to all vessels registered under Indian
law, regardless of where the ship is physically located.
5.5 Definition Section:
Importance: Definitions clarify the meaning of specific terms used throughout the Act, ensuring
consistency and avoiding misinterpretation. These terms are often words or phrases that could
have multiple meanings in different contexts.
Example: In the Companies Act, 2013, terms like "Director," "Company," and "Auditor" are
defined in the first few sections to standardize their meaning.

6. Practical Aspects of Drafting an Act

6.1 Recommendations for Drafting by Symonds:
Focus on One Subject: Each Act should be focused on one topic or area of law. This ensures
that the Act remains coherent and avoids confusion. If necessary, related topics should be
covered in separate Acts.
Marginal Notes: These notes are brief explanations of the content of each section, placed in the
margin or at the beginning of each section. They help readers understand the subject matter
quickly.
Example: A marginal note might read "Powers of arrest" for a section in a criminal law statute
that explains when and how a police officer can make an arrest.
6.2 Schedules:
Use of Schedules: When an Act requires additional details that would otherwise clutter the
main body, schedules are used to present them. Schedules may include forms, procedural rules,
or lists, such as the rates of duties under a customs law or the types of documents required for
registration.
6.3 Logical Arrangement:
Progression of Clauses: Clauses within an Act must be arranged logically, starting with the
general provisions and moving towards more specific regulations. This ensures that the Act is
easy to follow and interpret.
Avoiding Over-Subdivision: Too many subsections can cause confusion. It is better to keep the
main points in the body of the section and use schedules for further elaboration when necessary.

7. Modern Practice: Usage of Preambles and Titles

7.1 Countries Minimizing Preambles:
India and the UK: In countries like India and the UK, preambles are used less frequently in
modern legislative drafting. Most of the time, the long title is sufficient to convey the scope
and purpose of the Act.
Exceptions: Preambles are still used in rare cases involving constitutional amendments or
fundamental policy changes, such as the Right to Information Act, 2005 in India.
7.2 Fundamental Rights Exception:
Constitutional Clarity: In some cases, laws dealing with fundamental rights may require
preambles to clarify their purpose and prevent challenges based on constitutional rights. For
example, laws affecting free speech or religious freedom may include preambles to outline the
government’s intent and prevent judicial challenges.
Conclusion: Simplification of Legislative Drafting
Simplified Legislative Drafting:
Reduction of Redundancy: Modern drafting practices focus on reducing redundancy in
legislative texts, such as eliminating unnecessary preambles and long-winded clauses.
Focus on Clarity: The goal of contemporary legislative drafting is to make laws more accessible
and understandable for both legal professionals and the public.
Better Structure: The structure of an Act is now more logical, with clearly defined sections,
simplified language, and supporting schedules where necessary.

udicial Indiscipline in the Supreme Court's Handling of OBC Reservations

The Supreme Court of India has faced criticism for its management of reservation cases,
particularly following the Mandal Commission judgment, which was a pivotal moment in
establishing the legal framework for reservations for Other Backward Classes (OBCs). This
judgment sought to clarify the criteria and principles governing OBC reservations, yet
subsequent rulings have led to a perceived erosion of judicial discipline. Critics argue that
smaller benches within the Supreme Court have revisited settled matters, thereby undermining
the established judicial framework.
Ashoka Kumar Thakur vs. Union of India: A Controversial Judgment
The judgment in Ashoka Kumar Thakur vs. Union of India was delivered by a five-judge bench
and quickly became a focal point of contention. The main grievance is that the ruling effectively
increased seats available for upper-caste candidates while intending to reserve 27% of seats
specifically for OBCs in central educational institutions.
Unnecessary Reference to a Constitution Bench
A two-judge bench comprising Justices Arijit Pasayat and Lokeshwar Singh Panta referred 31
questions to a larger bench seeking clarifications regarding OBC reservations. The majority of
these questions had already been settled by the earlier Mandal Commission ruling (Indira
Sawhney vs. Union of India, 1992), wherein a nine-judge bench upheld the 27% reservation for
OBCs.
The reference was seen as unwarranted, as the only potentially novel question pertained to
whether Parliament could mandate private educational institutions to reserve seats for OBCs.
However, this particular question was left unanswered in the Ashoka Kumar Thakur judgment
since private institutions did not challenge the reservation policy. This indicates that the
reference not only lacked necessity but also reflected an aspect of judicial overreach, diverting
from established legal precedents.
Judicial Discipline and the Reinterpretation of Mandal Commission Judgment
The Mandal Commission judgment was intended to serve as a conclusive framework regarding
reservations for OBCs. The nine-judge bench clearly delineated principles such as the "creamy
layer" concept, the stipulation of a 50% cap on total reservations, and guidelines for judicial
oversight.
Despite these clearly defined parameters, the smaller bench in Ashoka Kumar Thakur reopened
several issues under the pretense of reinterpretation. Critics label this tendency as judicial
indiscipline, noting that established norms dictate that only a larger bench possesses the
authority to overturn the findings of a previous larger bench. The actions of the smaller bench
suggest a deviation from the law, indicative of ideological inclinations driving judicial
decisions rather than strict adherence to legal principles.
The Creamy Layer Doctrine: A Conceptual Shift
A significant point of reinterpretation in Ashoka Kumar Thakur was the creamy layer concept.
Originally introduced in the Mandal Commission judgment, the creamy layer doctrine aimed
to exclude the most affluent members of OBC communities from benefiting from reservations,
thus ensuring that the benefits were directed towards the genuinely disadvantaged members.
However, in the Ashoka Kumar Thakur ruling, this interpretation evolved into a more stringent
criterion. Rather than serving as a mechanism for internal differentiation within OBC
communities, it became a prerequisite for identifying a caste as eligible for reservations.
Consequently, a caste must exclude its creamy layer before it could be deemed backward and
eligible for reservations. This represents a significant conceptual departure, imposing
additional hurdles on backward classes seeking to access reservation benefits.
Economic Criterion: A Shift in Focus
Another critical area of concern is the introduction of economic criteria into the evaluation of
backwardness in the Ashoka Kumar Thakur judgment.
The Mandal Commission ruling recognized caste as a social category, allowing its use as the
primary basis for identifying backward classes while leaving room for additional factors. The
judicial acceptance of this position meant that if a caste as a whole was deemed socially and
educationally backward, it could qualify for reservations.
In contrast, the Ashoka Kumar Thakur judgment revisited this issue, even though it had been
settled in the Mandal case. Justices Pasayat and others expressed concern over poverty's impact
on social mobility, suggesting that economic factors should play a more prominent role in
defining backwardness. This reintroduction marks a shift towards prioritizing economic criteria
over caste-based considerations, potentially diluting the focus on caste-based discrimination in
future legal challenges.
Relaxing Criteria for OBC Candidates
The Court's involvement in determining the qualifying marks for OBC candidates in
educational institutions has also drawn criticism.
Need for Relaxation of Marks
Historically, when reservations are introduced for a specific group, it is common for many
individuals from that group to struggle to meet qualifying standards due to a lack of previous
educational opportunities. Thus, governments typically relax qualifying marks to facilitate
access for these students.
In the Ashoka Kumar Thakur case, the five-judge bench acknowledged the necessity of relaxing
qualifying marks for OBC students to enable them to fill their reserved quota. However, the
extent of this relaxation became contentious.
Supreme Court's Overreach on Cut-Off Marks
Critics argue that the Supreme Court overstepped its boundaries by imposing its guidelines on
the permissible degree of relaxation in cut-off marks.
The government had issued an Office Memorandum (OM) in April 2008, allowing individual
educational institutions to determine how much to relax cut-off marks for OBC candidates
while maintaining educational standards. This approach allowed flexibility and recognized that
elite institutions might resist significant relaxation.
However, the Supreme Court intervened, ruling that cut-off marks could only be relaxed by
10%. Any unfilled OBC seats would revert to the general category. This decision effectively
overruled the government's policy, limiting the opportunities available to OBC students. The
Court failed to justify its intervention or acknowledge the government's policy, instead
imposing its standards for how relaxation should occur.
Consequences of the Supreme Court’s Decision
The practical implications of the Court's decision have been significant.
The restrictions on how much the cut-off marks could be relaxed resulted in many OBC
candidates being unable to meet the required qualifications. Consequently, many central
educational institutions saw their 27% OBC quota remain largely unfilled, with the unclaimed
seats allocated to general category students. This outcome reflects the Court's failure to grasp
the challenges faced by OBC students and illustrates how its judicial overreach has undermined
the intent of the reservation policy.
Moreover, this decision points to a broader bias within the judiciary, which remains
predominantly upper-caste and skeptical of reservations. The actions of the Court seem aimed
at safeguarding the interests of upper-caste students, who ended up with more seats than they
would have under a proper implementation of the OBC reservation policy.
Conclusion
The handling of OBC reservations by the Supreme Court, particularly in the Ashoka Kumar
Thakur case, has raised critical questions about judicial discipline and the interpretation of
established legal precedents. The perceived judicial indiscipline, unnecessary references to
larger benches, and shifts in foundational concepts such as the creamy layer and the
introduction of economic criteria indicate a departure from the original intent behind the
Mandal Commission judgment. Furthermore, the Court's overreach concerning qualifying
marks has profound implications for OBC access to educational opportunities, ultimately
reflecting a bias that undermines the reservation system's objectives.

Judges operate with a form of relative sovereignty, being influenced by both institutional
juridical imperatives and ideological forces.

Judicial decisions are contingent, meaning that with sufficient legal interpretation, a different
conclusion could be reached.
Legal norms reflect the outcomes of political struggles and are snapshots of power dynamics.
Thus, court judgments can be seen as momentary hegemonic resolutions.
Role of Ideology in Adjudication:

Legal interpretation is never free from ideology; every decision is influenced by the dominant
ideological frameworks.

Judges are ideological actors, and their decisions enforce normative values of the time.

Ideological critiques help expose the unconscious biases that shape judicial reasoning, even
when judges perceive themselves as neutral.

Methodology for Critiquing Judicial Decisions:

The critique involves evaluating alternative legal interpretations and assessing their outcomes
in light of the conflicting interests at stake.

Agonistic theory requires examining judgments as interventions in societal conflicts, not just
as technical legal decisions.

Critical scholarship should aim to destabilize legal hegemonies and advocate for more just
outcomes.

Detailed Points:

Introduction:

Traditional theories of judicial decision-making (Kennedy, Douzinas, etc.) focus on either the
judge’s subjectivity or their ethical duties. However, this paper adopts a different theoretical
path, using the concept of the political to explore the judge’s role in adjudicating conflicts.

Judicial Decisions as Juridico-Political Acts:

Every judicial decision is a juridico-political act, resolving conflicts between groups with
opposing interests (e.g., workers vs. employers, minorities vs. majorities).

Judges are not fully sovereign; they are bound by legal texts and precedents but still exercise
discretion within the terrain of indeterminacy.

The Agonistic Framework:

Antagonism vs. Agonism: Drawing from Schmitt, Mouffe posits that political conflicts should
be managed but not eradicated. In this light, adjudication is a key site where such conflicts
continue.

Judges must balance conflicting interests in an agonistic process, acknowledging that political
struggles don’t end with the enactment of legislation but continue in the courtroom.

Role of Hegemony and Ideology:

Legal norms, judgments, and interpretations are deeply influenced by hegemonic ideologies
that reflect the dominant power structures of society.
Critical legal theory seeks to uncover and challenge these ideological influences, especially
when they manifest in judicial decisions.

The Task of Critical Legal Scholars:

Critical scholars should examine judicial decisions in terms of the possible alternatives that
were available, exploring what other legal interpretations could have been chosen.

The aim is to destabilize hegemonic practices in favor of more just interpretations.

Judicial Decision-Making in Context:

Judicial decisions are not standalone events; they are influenced by previous interpretations
and broader social-political contexts.

Critical legal analysis must consider the socio-political and ideological ramifications of
decisions, especially how they affect collective conflicts within society.

Conclusion:

The agonistic theory of adjudication challenges the liberal belief in legal neutrality by showing
that adjudication is always a political act embedded in societal struggles.

The critical legal scholar’s role is to destabilize existing legal interpretations by emphasizing
alternative possibilities and promoting justice-focused decision-making.
JUDICIAL DECISION-MAKING, IDEOLOGY, AND THE POLITICAL: TOWARDS
AN AGONISTIC THEORY OF ADJUDICATION

Author: Rafał Mańko

Published: 2021 in Law and Critique

Summary

This paper extends Chantal Mouffe's agonistic theory of democracy to the realm of judicial
decision-making, positing that judicial rulings are intrinsically both legal and political. These
decisions engage with ongoing societal conflicts—such as those between workers and
employers or tenants and landlords—and reflect the power dynamics between competing
social groups, challenging the notion of judicial neutrality.

Key Themes

1. Judicial Decision-Making as Political:

Judicial decisions are not merely legal determinations; they are rooted in collective
conflicts encompassing economic, ideological, and socio-political dimensions. Judges
play a crucial role in temporarily resolving these conflicts, which often reflect existing
power relations among various social groups.

2. Mouffe’s Agonistic Democracy:

The political landscape is characterized by inherent conflict rather than a quest for
consensus. Judges engage with these ongoing societal conflicts, acting more like
arbitrators in a pluralistic context rather than simply applying the law. This agonistic
model diverges from deliberative democratic theories (such as those proposed by
Rawls and Habermas), which prioritize rational consensus over the acknowledgment
of conflict.

3. Relative Sovereignty of Judges:

Judges possess a form of relative sovereignty, navigating between institutional legal
mandates and ideological influences. Their decisions are contingent, meaning
different interpretations could yield alternative conclusions. Legal norms encapsulate
the results of political struggles, representing fleeting hegemonic resolutions.

4. Role of Ideology in Adjudication:

Legal interpretation is invariably influenced by ideology, with judges acting as
ideological agents who enforce the dominant normative values of their time.
Ideological critiques are essential for revealing the unconscious biases that inform
judicial reasoning, even when judges perceive their decisions as neutral.

5. Methodology for Critiquing Judicial Decisions:

The critique of judicial decisions should involve evaluating alternative legal
interpretations and considering the outcomes based on conflicting interests. The
agonistic theory emphasizes the need to view judgments as interventions in social
conflicts rather than mere technical legal rulings. Critical scholarship should strive to
challenge legal hegemonies and advocate for more equitable outcomes.
Detailed Points

Introduction:
Traditional theories surrounding judicial decision-making often focus on the judge's
subjectivity or ethical responsibilities. In contrast, this paper explores the political aspects of
a judge's role in resolving conflicts.

Judicial Decisions as Juridico-Political Acts:

Each judicial ruling serves as a juridico-political act that seeks to resolve conflicts between
groups with opposing interests (for instance, between workers and employers or minorities
and majorities). Although judges are bound by legal texts and precedents, they maintain
discretion within areas of indeterminacy.

The Agonistic Framework:

Mouffe distinguishes between antagonism and agonism, arguing that political conflicts
should be managed rather than eliminated. In this context, adjudication is a significant venue
where these conflicts continue to manifest. Judges must navigate competing interests in an
agonistic process, acknowledging that political struggles persist even after legislation is
enacted.

Role of Hegemony and Ideology:

Judicial norms and interpretations are significantly shaped by hegemonic ideologies that
mirror the dominant power structures within society. Critical legal theory aims to unveil and
contest these ideological influences, particularly when they manifest in judicial rulings.

The Task of Critical Legal Scholars:

Critical scholars should scrutinize judicial decisions by considering the alternative legal
interpretations available and exploring what different outcomes could have been realized.
Their goal is to destabilize hegemonic practices in favor of interpretations that promote
justice.
Judicial Decision-Making in Context:
Judicial rulings do not exist in isolation; they are shaped by prior interpretations and broader
socio-political contexts. Critical legal analysis must assess the socio-political and ideological
impacts of judicial decisions, particularly regarding their effects on collective societal
conflicts.

Conclusion
The agonistic theory of adjudication challenges the liberal view of legal neutrality by
asserting that adjudication is inherently political, intertwined with societal struggles. The
critical legal scholar's role is to undermine established legal interpretations by emphasizing
alternative possibilities and advocating for decision-making that prioritizes justice.

T.N GODAVARMAN CASE

The T.N. Godavarman Thirumulkpad v. Union of India & Others case is a landmark
environmental case in India that was first heard in the Supreme Court in 1996. The case was
filed by T.N. Godavarman Thirumulkpad, a member of the Nilambur Kovilakam family in
Kerala, in response to the destruction of wooded areas in Gudalur, Tamil Nadu. The case
addressed a number of issues, including:
• Whether the Forest Conservation Act, 1980 (FCA) was being violated by illegal timber
operations in the Sandalwood Forest
• Whether sandalwood could be declared an endangered species
• Whether forests in India could be diverted for non-forest purposes, and if so, under
what conditions
The Supreme Court's ruling in the case included:
• Giving the term "forest" a broad meaning to preserve green expanses, regardless of their
nature, classification, or ownership
• Aligning with the intent of the Forest Conservation Act, 1980
• Directing governments to follow the broad and all-encompassing definition of forest
until a consolidated record of all kinds of forests across the country is prepared