Jurisprudence I Parvathi Bakshi

B.A. LL.B. 2015-2020

Jurisprudence Notes

Natural Law:
• Natural law is different from law of nature.
• Law of nature is a scientific theory about the physical universe and how it
functions. Eg:- Law of Gravity
• Natural Right – Every person is endowed with certain natural rights and
liberties simply by virtue of being born.
• Certain rights and duties exist even in absence of a positive law and these are
what constitute natural law.
• Natural law is not limited to natural rights and certain theories of natural law
aim at broader propositions such as establishing religious law over human law
• There is some sense of a higher standard

Thomas Aquinas – Summa Theologica

• Aquinas came around the time when the power of the church was declining
and concept of secular state was gaining momentum.
o Aquinas intended to counter this secularism wave through a rational
argument.
• He argued that political state is based on the natural needs of man.

Reason & Will in Law The Object of the law is Who has the right to
Common good promulgate law
- Will requires validity - Man is a part of society - It is the task of either the
- Will must be in and therefore law should whole community or some
accordance with reason be for the community as a representative
and validity is essential whole - “The one who decrees the end
- Common political action also decrees the means.”
is to preserve the well- - Law must have a compulsion
being of a community. – through community or
representative
- Subordinate laws must be in
consonace with the laws made
for the well-being of the
entire community

Aquinas then divided law into further four categories:-

1. Eternal
2. Divine
3. Natural
4. Human
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Eternal law
• Aquinas believed that universe is the creation of God.
• He argued that since God is rational by nature, the universe cannot be random.
• It is the rational guidance of created things on the part of God.
• Eternal law is divided into two more categories:-
o Laws that are subject of physical, biological and social sciences and
according to which universe functions
o laws of behaviour that distinguishes right and wrong conduct
• Eternal law is not knowable as to know eternal law is to know God’s mind and
that is not humanly possible.
o It is enaction of God’s plan for the universe
• Eternal law also consists of
o Divine providence – God’s intervention in the world
o Divine reason – aka Logos – logic behind an argument – way or
ordering
• Since every person is subject to eternal law why there exist wrongdoers.
Aquinas gives two reasons:-
o human beings have imperfect knowledge of the eternal law and
therefore are prone to error
o the eternal law rewards good people with happiness and punishes the
bad ones

Divine law
• It consists of the Ten Commandments and other authoritative Scriptures.
• It is important because:-
o Natural law only helps in survival to aspire to a higher supernatural
end directions are needed which are given in divine laws.
o Human understanding to interpret natural rule is flawed and may lead
to wrong interpretation. Hence, moral rules need to be prescribed.
o Human laws cannot punish evil all evil without hurting common good.
Eg – Cannot ban virtues like lust, selfishness, impatience etc.

Natural Law
• Laws forming part of the eternal law that are followed despite not knowing
them.
• It is the participation of rational beings in the divine law
• Here humans have the capacity for reasoning where they are working in view
of the eternal law
• It is an understanding of God’s law by man
• Natural law is that part of the moral eternal law that rational human beings
understand by their God given reason, which is denied to physical objects and
other animals.
o Rational creatures as subject to divine providence

Human law
• It is the laws which Human’s actually participate in making
• It should conform to the natural law (though questions of validity tend to
arise)
• These are the particular dispositions arrived at by reason.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

• It consists of law established by custom or by the legislative acts of the state.

• Aquinas held that the moral authority for human law making is found in that
part of the eternal law which reason reveals to man in the form of natural law.
• There are two ways in which human law is derived from the natural law:-
o By deriving logical consequences from the self-evident premises of
natural law
o By determining the way natural law applies to particular types of cases
• There exists three pre-conditions for the recognition of an enactment as a law
at all:-
o Law is made for the common good
o Law is made by the whole people or by God’s vice regent for the
whole people, who is the monarch ruling by divine right
o Law is promulgated

Human law

Reason Natural
law

Normative Character of Law

• Human laws for example are not statements of facts but rather norms, prescriptive
standards which prescribe a course of conduct.
• Sanctions are imposed to show consequences of non-compliance
• Normative rules are subject to – validity – and they are not subject to the test or
truth or falsity
• Normative rules merely preach what “ought” to be

IS-OUGHT PROBLEM

Factual Should be

It is a logical relation between ‘is’ and ‘ought’. But the problem is in applying
values/philosophies/ideologies to a facutal statement. This problem derives from an
attempt to base positive law on natural law through attempting to link normative
rules/theories with factual scenarios. It is an attempt to define moral norms as
something which can be ascertained by fact.
When a statement as to why something ‘ought’ to be done is not to prescribe a factual
description but to subscribe a means of conduct based on reason and also on the
existence of standards and criteria.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

For Example:
Humans live in society, (IS)
Humans should live in society, (OUGHT)

Read together you see a conflict, because humans need not live in society. You can
have general principles and from there you can have particular exceptions.

Speculative reason is applied for necessary truths, which cannot be disputed and said
truths are found in the particular conclusions just as much as in the general principle.
Practical reason is based on contingency and human action. The more you move away
from the general principles the more exceptions are found.
E.g. a poor starving man steals a loaf of bread – is it just, unfair…?

Criteria of validity

Two aspects to consider:

Ø Criterion for validity of law – in context of a particular legal system
Ø General sceheme for the criterion of validity of any legal system whatever –
search for a general criterion w.r.t any legal system

However legal systems being inherently riddled with empirical characteristics are not
able to be confined by the particular criterion adopted. Valid laws are those which are
used as guides to action and are normative.
Approaches:
• Behavioural approach – effectiveness – it is only a sufficiency criteria since it
doesn’t determine validity in it’s entirety
• Socio-psychological – reasons why officials and citizens obey the law
• Deontic – law which is bingin on members of society. It is irrelevant whether
they guide action or not.

CLASICAL LEGAL POSITIVISM

• Legal positivism is the thesis that the existence and content of law depends on
social facts and not on its merits.
• Positive Law – Law strictly so called – Laws made by sovereign and delegates
• The whole or a portion of the laws set by God to men is frequently styled the law
of nature.
• The question is not to determine whether laws or legal systems exist. Whether
a society has a legal system depends on the presence of certain structures of
governance, not on the extent to which it satisfies ideals of justice, democracy,
or the rule of law.
• Legal positivism in John Austin’s prose, considered law to be law (as opposed to
morality and custom) if it was a command from a sovereign authority that was
coercive.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

AUSTIN

How does command theory fit into this picture of legal positivism?

Positive law, according to Austin, is produced by a sovereign’s command. A

command is not a request but an imperative that creates a duty by the presence of a
sanction. 3 key elements:
1. Political sovereign
2. Command
3. Sanction

A command can’t be separated from duty and sanction. Non-imperative laws are:
• Declaratory laws – which merely clarify the existing legal systems. They do
not create new rights.
• Laws to repeal are not imperative, though some of them may create new rights
and obligations
• Imperfect obligation laws are laws without sanctions.

BENTHAM

Bentham and Austin have been studied together as they are considered jointly
responsible for the “Imperative theory” and it’s role of “commands” in it issued by a
“sovereign”.
 Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Positive Law and morality

• There are occasions when a rule of positive law is so obnoxious to the moral
sense of the society that its enforcement is successfully resisted. In such
instances the rule remains legally valid but is without practical effect
• The sovereign is bound to obey the divine law. This, though, is a moral duty
and if the sovereign legislates against divine law it will nevertheless be law.
• Positive morality – opinions – metaphors –analogy (Intl. law – constitution)
o No sanctions per se – opinionated – derivation – established
o Constitutional law – doesn’t really fit into the definition of law as per
austi i.e. comm/sanc/sov. “If it’s not law, it’s positive morality”
• Positive law – authority – scriptures –sovereign (human law)

Merit & Demerit Law & Sovereignty Law & Sanctions

- Positivism proposes that - Bentham’s assertion is that - Bentham – law - the notion
the nature of law is found law is made up of orders of a sanction being attached
in relation to human action issued by the sovereign as a result of behaviour
- Imperative theory – - He describes political contrary to law is not more
emphasizes on the role of society as a situation where than an addition to the basic
human creative element in a number of persons are definition of law.
law. paying obedeince to a - Austin gives more
- Creation of law is crucial to particular person. importantce to sanctions as a
this theory as the very - This particular person is a vital part of law in connection
name positivism relates to sovereign if his will is that with his command thoery –
“law as it is laid down” which an entire political duties and sanctions are all
- The importance is given to society must pay obedience connected terms.
the social fact of law and too. - Sanction – an evil which will
not to the merit/demerits of - Austin insists that a be incurred for disobedience.
its content. sovereign needs to be - Most laws are however
determinate with necessary substantive and not related to
limitations. This insistence sanctions. The most closely
maybe a result of the related laws to Austin’s
proposition by Austin that theory of sanctions is
“the indeterminate cannot Criminal Law.
command.” - By looking at theory and
- Austin sovereign: practice, Austin’s theory of
o Determinable sanctions is broken down –
o Indivisible seeing as laws are often laid
o illimitable down to perform a multidue
of social functions and not
only provide sanction.
(Substantive v. procedural)
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Critique:

• This notion of command becomes even more rarefied in the writings of H.L.A.
Hart who, for all his differences with Austin’s theory (which he considered
incorrect in many aspects), compared the command of the sovereign to be
analogous to the threat of a gun.
• This command theory of legal positivism was subject to criticism by Ronald
Dworkin in “The Model of Rules I,” in which he argued that laws must have an
essential moral content and cannot simply be an formal expression of coercion
and command.
o Laws according to Dworkin were not simply rules but also imply
standards.
o Standards consisted of princples – what is justice and;
o Policies – achieving socio-economic goals

HLA Hart – Positivism

• Hart primarily deals with the following:-
o Law and coercion
o Law and morality
o Nature of rules (Primary & Secondary)
• He criticizes Austin’s command theory for being an external viewed
imperative model of law disregarding the internal element of obedience
• He also criticizes Austin’s theory for limiting laws to be consisted of
commands backed by sanction. He talks about power conferring laws such as
laws of contract which do not fit in Austin’s theory.
• He makes a case that people do not obey law because of threat of sanction but
because of people’s acceptance of it being binding in nature. Eg:- A gunman
who robs a banker by giving him threat of shooting in case of noncompliance
is not making law despite it being a command backed by sanction. It is in such
situation the Austin’s theory fails.

Rules and Obligations

• Hart’s theory is different from that of Austin as it distinguishes the different
kind of obligations.
• He uses linguistic phrases ‘under an obligation’ and being obliged to explain
the difference. In the gunman example, when the gunman ask banker to give
away the money to the gunman, the banker is not under an obligation to give
the money but is being obliged to do so.
• Similarly, if one jumps red light even if knowing the fact that he won’t be
fined the obligation to stop won’t go away despite the absence of sanction and
the person will remain under an obligation to follow traffic rules. (The
obligation to follow rules persists even in absence of sanction)
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

• Thus, in Hart’s model rules are followed not because of a sanction but because
of society’s acceptance of the rule being binding.
• The idea of a rule implies an obligation.
• Hart distinguished rules of law other miscellaneous rules such as rules of
grammar and rules of social etiquette. Eg: People attending church on Sunday
is a habit and cannot be considered as a law.
• He considers rules which generate pressure but short fall of physical sanctions
as moral obligations but if they do exert physical sanctions, they can be
considered primitive or rudimentary kind of law imposing legal obligations.

External and internal aspects

• External Aspect of a rule is statement of observed fact.
• Internal Aspect of a rule is a sense of obligation to follow the rule.
• For example, an alien on earth might simply stop at red light without having a
sense of obligation to follow the rules but a person who follows traffic rule in
his country follows them because he understand the need of traffic safety and
thus has an obligation to follow the same.

PRIMARY RULES SECONDARY RULES

- Things you do or don’t do - Enforcement of subject of primary
(behavioural) rules – conferring power/authority
- Primary rules are those rules of law - Secondary rules are those rules of law
which impose basic duty on which governing the creation and
individuals. They determine what operation of the primary rules.
people ought and ought not to do and - Secondary rules are power conferring
thereby create obligations which rules in a way that they check the
people of a society need to follow. validity of primary rules. These rules
Eg:- Penal Code, Family Code lead to establishment of judiciary,
executive and legislature.

• As per Hart, a developed legal system must have both primary and secondary
rules.
• In absence of secondary rules, legal system will be a primitive one and suffer
from the following:-
o Absence of authoritative means to remove ambiguity in meaning and
application of laws
o Primary rules of obligation are relatively static
o No authority for dispute resolution

Rule of Recognition
• Rule of recognition is the ultimate criterion for verifying the validity of both
primary and secondary rules.
• In most of the countries’ constitution is the ultimate rule of recognition.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

• Hart’s theory of a developed legal system demands the following:-

o primary rules that are considered valid by the rule of recognition are
generally obeyed by citizens
o rule of recognition is accepted by officials as the standard of official
behaviour
• Rule of recognition can change through peaceful or violent means.
• Change in rule of recognition need not necessarily affect primary rules. Eg:-
When India gained independence from Britain, British laws found to be
consistent with constitution remained in power.
• E.g. in India Gazetted notifications/precedence/statute/ordinance

Hart on International Law

• Despite absence of authoritative rule of recognition in international law Hart
considers it to be law properly so called.
• Hart justifies this claim on his belief that law can exist without a legal system.
• He also asserts this claim on the grounds that International law rules resemble
the primary rules of obligation in a primitive society. They are law because
sovereign states consider them as obligatory and use them to press their claims
and to evaluate and criticise the conduct of other states.
 Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Hart Fuller Debate

Background Facts:
A woman in order to avenge her personal grudge against her husband informed of his
disliking of Nazis to the Nazi authorities. After the Nazi government was overthrown

HART FULLER
- Hart being a positivist criticized the - Fuller stated that law must possess certain
judgment for disregarding the written law. characteristics if it is to be classified
- Hart argued that the law remains law even if correctly as ‘law’ and one of most important
it does not meet the demands of external of such characteristic is ‘inner morality’.
moral criteria. - For Fuller if law contains no morality it is
- Hart said ‘Law is not morality; do not let it not law.
supplant morality’. - He also criticized Hart for ignoring the
- Hart said that a law being inherently evil inherent inability of Nazis to be considered
and how one ought to react to the law are as a legal system.
two separate issues and merely because a - He then criticizes positivism itself and states
law‘s foundation is on evil it cannot be said that the fundamental positivism that law
to be law. must be separate from morality. He
- Hart also stated that if wicked/immoral laws considers this postulate incorrect as it denies
are considered valid that does not create any the possibility of any bridge between the
problem when a choice between two evils obligation to obey law and other moral
has to be made in extreme circumstances. obligations.
- Hart said that a legal system might show - Fuller considered law to be a collaborative
some conformity with justice or morality effort to aid in the satisfying of mankind’s
but does that does not follow that a rule of common needs with each rule of law having
recognition a criterion of legal validity a purpose related to the realisation of a value
ought to include morality in it. of the legal order.
- Law and morality are not interchangeable - Since, purpose and values are closely related
terms and law cannot be strike down merely a purpose may be considered as a fact and a
if it’s devoid of any moral content. standard for judging facts and thereby,
- As long as the officers have internalized the removing the dualism between ‘is’ and
laws, then the absence of citizens ‘ought’.
acknowledgment of the laws would not be a - Fuller considered that any regime that assists
bar to the existence of the legal system in the spread of, injustice has forfeited its
- It may be a bad legal system, but we don’t right to expect allegiance from its citizens.
sit in judgement over the legal system but - Retroactive laws and absolute administrative
rather separate the law from morality. discretion – violate the inner morality of law.
- The existence of the legal system is a
statement of fact.
- Even if we fulfill the criteria of “inner
morality of law” there can still be an unjust
system.
- (rigs v. palmer)
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

KELSEN – NORMATIVE THEORY (GRUNDNORM)

Pure Theory of Law

• Kelsen calls his theory as ‘pure theory of law’ as it attempts to distinguish
between law and what is not strictly law
• Look at law as a science
• Understand it as separate from other disciples
o Though it isnt completely individual from other disciplines
• Look at law in its own unique form
• There is a difference between subjective legal interpretation and objective
legal interpetation.
• His theory distinguishes law from facts and morals
• The main ingredients of Kelsen’s pure theory are derived from Kant’s theory:-
o the world of things (noumena) and the world of ideas (phenomena);
o what ‘is’ (sein) and what ‘ought’ to be done or not done (sollen).
• When a law is made the object of the law say it is to provide speedy trials for
certain offences. Then the object is a norm as the act may not be able to
always provide for a speedy trial but the enactment of the act is a fact.
• A norm need not provide a rule of conduct that can be known beforehand.
• Not every expression of will directed to a person is a norm. Robber
threatening a person to handover money a gunpoint is not a norm.
• In order for a norm to be objective it must be authorised by another valid
norm.
• Imputation – Effect of a norm
• A norm creates a duty to behave in a certain way by imputing a sanction to the
breach of that duty.

Norms and Facts

• Facts consist of things and events in the physical world and revolve around
what ‘is’.
• Norms unlike facts focus on what ‘ought’ to be and not what ‘is’.
• X kills Y is a fact. Whether X ought to be punished for committing murder of
Y or not is a norm.
• Norms are of two types - legal norms and moral norms.
• Legal norms are coercive unlike moral norms which are not.
• Legal norms arise from validation by another valid norm.
o There exists a hierarchy of norms (e.g. police act – motor vehicle act –
constution (parliament)
o A norm may be valid even when it fails on occasion to be effective in
shaping conduct.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

BASIC NORM or Grundnorm

• Grundnorm is an interpretation of a set of facts. It is not derived from facts but
is an interpretation of them.
• It’s a presupposition – assuming there is a binding constitution which we have
to obey
• We follow a chain of legitimacy till we get to some ultimate answer
• The fact that we obey the constitution is a basic norm.
• Its effectiveness is directly dependent on the effectiveness of the norms that
are derived from it.
o Effectiveness is a condition of validity but is not validity itself.
• Occasional infringement of a norm will not render the norm invalid rather it is
in the nature of norms that they are capable of being violated, for if a norm is
always followed it is not a norm but a law of nature.

For Example: Constitution

• Derivation – showing that particular norms have been created in accordance
with the basic norm
• Validity of the first Constitution is the last presupposition
• “one ought to behave as the individuals laid down the 1st constitution has
imagined”
• “Ought to obey” is a basic norm.

The specific function of the basic norm:

• The ultimate hypothesis of positivism is the norm authorising the historical
first legislaton
• The basic norm, confers law creating power on the act of the first legislator
• It is the only necessary presupposition of any positivistic interpretation of
legal material
• Valid not because of its creation by a legal act, but because it is presupposed
to be valid.

Kelsen on Revolution & Principle of Legitimacy

• The valdiity of norms depends on their order – valid till invalidated

Coup d’Etat
• The legal order is nullified
o The order is overthrown and replaced
o Contents of the norms may remain but not the reasons for their validity
• In a revolution (Peaceful or Violent) the grundnorm may be replaced by
events such as a military coup or grant of independence from colonizer to its
colony.
• The content of these norms remains unchanged but the reason for their validity
changes as the previous grundnorm is displaced by a new grundnorm.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

• The new order receives/adopts the old & gives validity (this validity is
different though)

DWORKIN
• Law cannot be understood in isolation to culture of a society. Different
societies with different culture can have different meanings of law.
• In the Anglo-American legal culture, power to make law does not lie with
physical force but with moral authority.
• The characteristic that makes people obey law is its integrity. People will obey
even an unjust and unfair law as long as it has integrity as a whole. There are
two principles of political integrity:
o Legislative principle: Legislature should try to make law consistent
and morally coherent with the principles established within the legal
system.
o Adjudicative principle: Judiciary should also make an attempt to view
the law as coherent as far as possible by interpreting rules and statues
in a manner consistent with the previous regime.

Dworkin on Rules, Principles & Policies

• As per Dworkin, Law consist of rules as well as principles an policies
• The use of standards which don’t function as rules
• Positivism is a model only for rules (Hennigsen v. Bloomfield Motors)
• Unlike rules, they have ‘the dimension of weight or importance’
o Rule – a valid rule is merely applied and a case is decided in that
particular way
o Principle – a reason is provided, though it may not be a conclusive
reason. It will be weighed against other principles. It has an essence of
morality and contains a requirement of justice or fairness. Describes
rights.
o Policy – it is a standard which sets out a goal to be reached – in
consideration of socieo-economic conditions or political fatures.
Describes goals.
• Dworkin altogether rejects the rule of recognition wherein principles or
policies gain admission into legal systems.
• Dworkin argues that if judges do not make consistent decisions (princples)
then that will undermine the faith of the individuals in the judiciary.
• Principle does not automatically answer the legal question and they may be
even contradicted by an official rule. The judge may or may not consider the
relevant principle or rule while making a decision.

Hercules and Hard Cases

Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Dworkin assumes a fictitious judge, Hercules, who will go through all the rules and
the principles till he gets an answer to the problem. He assumes that every question
can be answered from within the existing set of rules and principles.
• Hercules is expected to ‘construct a shceme of abstract and concrete
principles to justify common law precedents’
• He is required to seek consistency and integrity
• The law ought to be seen as a “seamless web”, where a moral right is backed
by finding an institutional right.

Critique: However Hercules J, has been crticised as an ideal to which realistic judges
can only measure themselves to.
• Judges could make mistakes but the fact that they may err does not imply that
there is no right answer to the problem within the legal system.
• A good legal system endeavours to reduce the overall number of mistakes.
• Judges could also import morality while making a decision but the morality
has to be of the system and not that of the judge.

Integrity:
• ‘Law as integrity’ is defined through a picture where – “Rights and
responsibilites flow from past decisions are considered legal, further
supplanted by principles of personal and political morality which provide a
justification.”
• The realtion of law with force
• The promotion of self governance and participation in democracy

Dworkin on Law
• Dworkin rejected theories providing a universal description of law.
• He considered that each community has its own understanding of law and
therefore any attempt to universalize the definition of law is futile.
• He identified the following characteristics of his Anglo American culture:-
o Law consists of rights and responsibilities of citizens.
o Political decisions of the ‘right sort’ are the source of rights and
responsibilities. These decisions include constitution, legislation and
judicial decision.
o State’s coercive acts could only be justified to enforce the rights and
responsibilities established by past political acts.

Dworkin on Use of Force

• Dworkin advocates for limited use of force because if courts decide as per
their own whims and fancies the law will become unpredictable and arbitrary.
• Another advantage was this led to a kind of equality which led to like
treatment of persons in like situations. Dworkin did not require absolute
equality.
• Dworkin also insisted on integrity of law to ensure that law meets the moral
demand.
Jurisprudence I Parvathi Bakshi
B.A. LL.B. 2015-2020

Dworkin on Interpretation
• Dworkin’s concept of integrity of law demanded that laws be interpreted in a
manner that they remain consistent to earlier established rules and principles.
• In hard cases, Hart stated that judges act as deputy of legislature and it is here
that Dworkin disagreed.
• Dworkin expect a judge to not legislate in hard cases but rather gather a
solution from the existing set of rules and principles to maintain integrity and
consistency.
• He identified three stages in the process of interpretation:-
o Pre-interpretive stage
§ Interpreter (Judge) identifies relevant material such as statutory
provisions and case law
o Interpretive stage
§ Interpreter determine the reason for treating the legal document
as relevant to the case
§ Eg:- Application of Copyrights Act in a dispute related to
copyright
o Post-interpretive stage
§ At this stage, interpreter must identify what will better serve the
justification he accepts at the interpretive stage
§ The justification is that the system as a whole promotes
integrity of the law.

Dworkin on Law as Chain Novel

• Dworkin compared the law to a chain novel and the role of the judge to that of
a chain novelist.
• Each novelist in the chain interprets the chapters he has been given in order to
write a new chapter, which is then added to what the next novelist receives
and so on.
• Each has the job of writing his chapter so as to make the novel being
constructed the best it can be, and the complexity of this task models the
complexity of deciding a hard case under law as integrity

Dworkin on Law & Morality

• Dworkin considered a community’s law different from its popular morality.
• He defined popular morality as the set of opinions about justice and other
political and personal virtues that are held as matters of conviction by most
members of a community, or perhaps of some moral elite within it.
• In Anglo American culture, integrity is essential feature of law so accordingly
law may fail popular morality while retaining its integrity.
• He argued that there is moral value in the integrity of law even when its results
are unwelcome.