In Kelsen's Pure Theory of Law, the Grundnorm is best described as:

A presupposed norm that the first historical constitution ought to be obeyed

The rule of recognition accepted by officials

The moral principle of justice underlying every legal order

The command of the sovereign backed by a sanction

Assertion (A): Article 141 of the Constitution makes the ratio decidendi of a Supreme Court judgment binding on all courts in India. Reason (R): The Supreme Court is bound by its own previous decisions under Article 141. Choose the correct option.

Both A and R are true, and R is the correct explanation of A

Both A and R are true, but R is not the correct explanation of A

Assertion (A): Hart argued that the Nazi statutes were law, though too evil to be obeyed. Reason (R): For a legal positivist, the legal validity of a rule does not depend on its moral merit. Choose the correct option.

Both A and R are true, and R is the correct explanation of A

Both A and R are true, but R is not the correct explanation of A

Which of the following are among Fuller's principles of the "inner morality of law"? Select all that apply.

Laws should be derived from the Volksgeist

Laws should maximise the greatest happiness of the greatest number

Which of the following are recognised tests of a valid custom? Select all that apply.

Reasonableness and conformity with public policy

Approval by a majority vote of the community

Reasonableness and conformity with public policy

Devlin's argument in "The Enforcement of Morals" was a response to which document?

The Universal Declaration of Human Rights (1948)

Jurisprudence I: Nature and Sources of Law, the Schools of Jurisprudence, and Law and Morality

Unit I of the Law syllabus is headed "Jurisprudence" and lists ten items. This chapter takes the first three: the nature and sources of law, the schools of jurisprudence, and law and morality. Together they answer the question every other unit takes for granted: what makes a rule a rule of law, where it comes from, and whether its validity depends on its moral content. The questions that test this unit are usually matching exercises (jurist to theory, jurist to book) and assertion-reason pairs on the positivist and natural-law positions, so the chapter keeps names, works and dates precise. The next chapter takes the unit's analytical concepts: rights and duties, personality, property, possession and liability.

1. The nature of law: definitions and what they emphasise

No single definition of law commands agreement, because each jurist defines it by the feature he thinks essential. Salmond called jurisprudence "the science of the first principles of the civil law" and defined law as the body of principles recognised and applied by the State in the administration of justice, which puts the courts at the centre. Austin put the sovereign at the centre: law is a command of the sovereign, backed by a sanction, addressed to persons habitually obedient to him. Kelsen removed both the sovereign and morality and treated law as a hierarchy of norms whose validity comes from a higher norm. Hart replaced commands with rules, and the realists replaced rules with what officials actually do.

Definitions of law, by what each makes central
Jurist	What law is	Key work
John Austin	Command of the sovereign backed by sanction; "positive law" as law properly so called	The Province of Jurisprudence Determined (1832)
Hans Kelsen	A hierarchy of norms resting on a presupposed basic norm (Grundnorm); a "pure" theory free of morality and sociology	Pure Theory of Law (1934)
H.L.A. Hart	A union of primary rules (duties) and secondary rules (recognition, change, adjudication)	The Concept of Law (1961)
Ronald Dworkin	Rules plus principles; law as integrity, interpreted by the ideal judge "Hercules"	Taking Rights Seriously (1977); Law's Empire (1986)
O.W. Holmes	Prophecies of what the courts will do in fact; the "bad man" view	The Path of the Law (1897)
Roscoe Pound	Social engineering: balancing individual, public and social interests	An Introduction to the Philosophy of Law (1922)

⚠️ Kelsen's basic norm is not a moral norm

The Grundnorm is a presupposition of legal thought, not a statement of justice. It says only that the historically first constitution ought to be obeyed. An option describing it as "the moral foundation of the legal order" is wrong; Kelsen's whole project was to keep morality out of the science of law.

🎯 Why Hart rejected Austin

Hart's criticism in The Concept of Law is threefold. The command model fits criminal law but not power-conferring rules (making a will or a contract). It cannot explain the continuity of law when one sovereign succeeds another, because habitual obedience to the new one has not yet formed. And it confuses "being obliged" (the gunman situation) with "having an obligation", which needs an internal point of view: officials accept the rule of recognition as a standard.

2. Sources of law: legislation, precedent and custom

Salmond divided sources into formal (the source from which a rule derives its force, the will of the State) and material (the source of its content), and subdivided material sources into legal (legislation, precedent, custom, agreement) and historical (writings, foreign law). In India the three principal legal sources are legislation, judicial precedent and custom, with personal law drawing on religious texts as a fourth.

The three principal legal sources
Source	How it binds	Points examined
Legislation	Enacted by a competent legislature; supreme or subordinate (delegated)	Subordinate legislation is valid only within the parent Act; it can be struck down as ultra vires
Precedent	The ratio decidendi binds lower courts (stare decisis); obiter dicta persuade	Article 141: law declared by the Supreme Court binds all courts in India; the Supreme Court itself is not bound by its own earlier decisions
Custom	A practice followed so long and uniformly that it has the force of law	Tests: antiquity, continuity, certainty, reasonableness, conformity with statute and public policy

The ratio decidendi is the principle necessary for the decision on the material facts; Goodhart's method finds it by identifying the facts the judge treated as material and the outcome on them. Precedent is displaced when a decision is per incuriam (given in ignorance of a binding statute or authority) or sub silentio (a point not argued). A statute prevails over custom, and Section 3(a) of the Hindu Marriage Act 1955 codifies the test: a custom must have been continuously and uniformly observed for a long time and be certain, not unreasonable and not opposed to public policy.

🧠 Ratio binds, obiter persuades

Remember the pair by function: the ratio is what the case decides, the obiter is what the judge says on the way. Obiter of the Supreme Court is still treated with great respect by High Courts, but a question asking what Article 141 makes binding is asking about the law declared, which is the ratio.

3. The schools of jurisprudence

The schools differ in what they take to be the essence of law and therefore in method. The analytical school studies law as it is, the natural-law school asks what it ought to be, the historical school traces it to the spirit of a people, the sociological school measures it by its effects on society, and the realists study the behaviour of courts.

The five schools at a glance
School	Central claim	Leading jurists
Analytical (positivist)	Law is to be separated from morality; study law as it is	Bentham, Austin, Kelsen, Hart, Raz
Natural law	A higher law discoverable by reason; an unjust law lacks full legal character	Aristotle, Cicero, Aquinas, Grotius, Locke; revived by Fuller and Finnis
Historical	Law grows from the Volksgeist, the common consciousness of a people, and is found rather than made	Savigny, Puchta, Henry Maine
Sociological	Law is a social institution to be judged by its working and its effect on interests	Ihering, Ehrlich (living law), Duguit (social solidarity), Pound
Realist	Law is what courts and officials do; rules are only one input	American: Holmes, Gray, Llewellyn, Jerome Frank; Scandinavian: Hägerström, Olivecrona, Alf Ross

Maine, Ancient Law (1861): the movement of progressive societies has been "from Status to Contract".
Aquinas's four kinds of law: eternal, natural, divine and human; human law that conflicts with natural law is "a perversion of law".
Fuller's eight principles of legality (The Morality of Law, 1964): generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy, and congruence between declared rule and official action.
Finnis, Natural Law and Natural Rights (1980): seven basic goods, including life, knowledge, play, aesthetic experience, sociability, practical reasonableness and religion.
Jerome Frank, Law and the Modern Mind (1930): a "fact sceptic", doubting that trial courts find facts reliably; Llewellyn is the leading "rule sceptic".

ℹ️ Pound's interests

Pound classified the interests law must secure as individual (personality, domestic relations, substance), public (interests of the State as a juristic person) and social (general security, security of social institutions, general morals, conservation of social resources, general progress, individual life). The judge and legislator are engineers who must secure as much of the scheme of interests as possible with the least friction and waste.

4. Law and morality

Two debates define this item. The Hart–Fuller debate (Harvard Law Review, 1958) asked whether the Nazi statutes were law: Hart held they were law but too evil to obey, preserving the separation thesis so that moral criticism of law stays clear; Fuller held that a system so lacking the inner morality of law was not law at all. The Hart–Devlin debate followed the Wolfenden Report (1957), which recommended decriminalising private homosexual conduct between consenting adults. Devlin argued in The Enforcement of Morals that society may use law to protect its shared morality because that morality holds it together; Hart replied in Law, Liberty and Morality (1963) with a version of Mill's harm principle (On Liberty, 1859): the only purpose for which power can rightfully be exercised over anyone against his will is to prevent harm to others.

Indian constitutional law has taken a position in this debate. In Navtej Singh Johar v Union of India (2018) the Supreme Court read down Section 377 of the Indian Penal Code 1860 so far as it criminalised consensual sexual conduct between adults, holding that "constitutional morality", not popular or public morality, is the standard for testing a law against fundamental rights. The same reasoning appears in Joseph Shine v Union of India (2018), which struck down the adultery offence. Neither offence appears in the Bharatiya Nyaya Sanhita, 2023, which replaced the Penal Code from 1 July 2024.

💡 Hart and Fuller in one picture

Think of a counterfeit coin. For Hart, a legally valid but wicked statute is a genuine coin spent on an evil purchase: it is money, and you may refuse to spend it. For Fuller, a regime of secret, retroactive and contradictory decrees is a counterfeit: it only looks like money. The disagreement is over what the word "law" should include, not over whether the Nazi decrees were wicked.

⚠️ Positivism does not say law and morality never overlap

The separation thesis is about validity, not content. Hart accepted a "minimum content of natural law" (rules protecting persons, property and promises) that any durable legal system will contain, given human vulnerability and limited resources. What he denied is that a rule's legal validity depends on its moral merit.

Key takeaways

Austin: law as command plus sanction; Kelsen: a norm hierarchy resting on the Grundnorm; Hart: primary and secondary rules with the rule of recognition; Dworkin: rules, principles and law as integrity.
Legislation, precedent and custom are the principal legal sources; Article 141 binds all courts to the law declared by the Supreme Court, which is its ratio decidendi.
A valid custom must be ancient, continuous, certain, reasonable and consistent with statute and public policy.
Historical school: Savigny's Volksgeist and Maine's "status to contract"; sociological: Pound's social engineering and Ehrlich's living law; realists: Holmes, Llewellyn, Frank and the Scandinavians.
Hart–Fuller (1958) is about whether wicked law is law; Hart–Devlin (after Wolfenden, 1957) is about enforcing morality; Navtej (2018) adopts constitutional morality over popular morality.

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

Who described the movement of progressive societies as one "from Status to Contract"?
1. Friedrich Carl von Savigny
2. Jeremy Bentham
3. Henry Maine
4. Roscoe Pound
Show answer
Answer: C — Henry Maine
Maine wrote this in Ancient Law (1861), a founding text of the historical school. Savigny belongs to the same school but his idea is the Volksgeist; Pound is sociological and Bentham analytical.
In Kelsen's Pure Theory of Law, the Grundnorm is best described as:
1. A presupposed norm that the first historical constitution ought to be obeyed
2. The rule of recognition accepted by officials
3. The moral principle of justice underlying every legal order
4. The command of the sovereign backed by a sanction
Show answer
Answer: A — A presupposed norm that the first historical constitution ought to be obeyed
The Grundnorm is a presupposition that gives validity to the chain of norms; it has no moral content. The sovereign's command is Austin, and the rule of recognition is Hart's social rule accepted by officials, which is a fact, not a presupposition.
Match the work with its author: "The Concept of Law" (1961).
1. Lon Fuller
2. H.L.A. Hart
3. Ronald Dworkin
4. John Finnis
Show answer
Answer: B — H.L.A. Hart
Hart's The Concept of Law (1961) introduced primary and secondary rules and the rule of recognition. Fuller wrote The Morality of Law (1964), Dworkin Taking Rights Seriously (1977) and Finnis Natural Law and Natural Rights (1980).
Assertion (A): Article 141 of the Constitution makes the ratio decidendi of a Supreme Court judgment binding on all courts in India. Reason (R): The Supreme Court is bound by its own previous decisions under Article 141. Choose the correct option.
1. Both A and R are true, and R is the correct explanation of A
2. Both A and R are true, but R is not the correct explanation of A
3. A is true, but R is false
4. A is false, but R is true
Show answer
Answer: C — A is true, but R is false
A is true: the "law declared" under Article 141 is the ratio. R is false: "all courts within the territory of India" does not include the Supreme Court itself, which can depart from its earlier decisions, usually through a larger bench.
Assertion (A): Hart argued that the Nazi statutes were law, though too evil to be obeyed. Reason (R): For a legal positivist, the legal validity of a rule does not depend on its moral merit. Choose the correct option.
1. Both A and R are true, and R is the correct explanation of A
2. Both A and R are true, but R is not the correct explanation of A
3. A is true, but R is false
4. A is false, but R is true
Show answer
Answer: A — Both A and R are true, and R is the correct explanation of A
Both are true and R explains A: because validity is separate from merit, Hart could call the statutes law while condemning them, which he thought kept moral criticism honest. Fuller, on the other side of the 1958 debate, denied they were law.
Which jurist is associated with the idea of "living law", the law that governs social life even if never enacted?
1. Léon Duguit
2. Georg Puchta
3. Karl Llewellyn
4. Eugen Ehrlich
Show answer
Answer: D — Eugen Ehrlich
Ehrlich, a sociological jurist, located the centre of legal development in society itself, not in legislation or decisions. Duguit is known for social solidarity, Llewellyn for rule scepticism, and Puchta for continuing Savigny's historical school.
Which of the following are among Fuller's principles of the "inner morality of law"? Select all that apply.
1. Laws should not be retroactive
2. Laws should be derived from the Volksgeist
3. Laws should be promulgated
4. Laws should maximise the greatest happiness of the greatest number
Show answer
Answer: A — Laws should not be retroactive; C — Laws should be promulgated
Promulgation and non-retroactivity are two of Fuller's eight principles in The Morality of Law (1964). The greatest-happiness test is Bentham's utilitarianism, and the Volksgeist is Savigny's historical school.
Which of the following are recognised tests of a valid custom? Select all that apply.
1. Approval by a majority vote of the community
2. Reasonableness and conformity with public policy
3. Antiquity and continuity
4. Certainty
Show answer
Answer: B — Reasonableness and conformity with public policy; C — Antiquity and continuity; D — Certainty
A custom must be ancient, continuous, certain, reasonable and not opposed to statute or public policy; Section 3(a) of the Hindu Marriage Act 1955 codifies these. Its force comes from long observance, not from a vote.
Devlin's argument in "The Enforcement of Morals" was a response to which document?
1. Mill's On Liberty (1859)
2. The Beveridge Report (1942)
3. The Wolfenden Report (1957)
4. The Universal Declaration of Human Rights (1948)
Show answer
Answer: C — The Wolfenden Report (1957)
The Wolfenden Report recommended decriminalising private homosexual acts between consenting adults; Devlin defended society's right to enforce shared morality, and Hart answered him with a harm-principle argument that draws on Mill.
In which year was Navtej Singh Johar v Union of India decided, adopting constitutional morality as the test? Type the year.
Numerical answer — type the value.
Show answer
Answer: 2018
Navtej Singh Johar was decided in 2018 by a five-judge bench, reading down Section 377 of the Indian Penal Code 1860 for consensual adult conduct; Joseph Shine, on adultery, came the same year.